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What is “Joint and Several Liability”?
Joint and several liability is a manner of apportioning liability among multiple parties. It will only apply when there is more than one tortfeasor. Parties that are jointly liable are assessed a certain amount of damages. Joint and severally liable individuals are all liable to the plaintiff, but the entire award of damages may be recovered from any defendant.
- Note: Joint and several liability is a windfall for plaintiffs who can seek recovery from one party and allow that party to seek any level of contribution from a joint tortfeasor.
- Example: Ann is a huge fan of Justin, the singer. She follows him all over the country and is somewhat of a stalker. She calls hotels when he is in town in an attempt to identify where he will be staying. She calls the hotel and learns that Justin will be staying on the third floor. She asks to rent the room next to him. When Justin arrives, she secretly records him singing in his room and posts it to YouTube. This severely hurts Justin’s career when folks learn that his singing is actually auto tune and he cannot carry a note. Justin sues Ann and the hotel. The court awards joint liability of $1 million against Ann and the hotel. If the court awards joint and several liability, Justin can recover the $2 million against the hotel or Ann. The hotel or Ann would then have to work to seek $1 million contribution from the other.
Discussion: How do you feel about the doctrine of joint and several liability? Is this fair to the defendants? Why or why not?
- Pro plaintiff individuals might argue that join and several liability is fair. It allows the plaintiff to recover an entire judgment from any one or combination of the defendants. Pro defendant individuals might argue that joint and several liability is not fair to the defendant in certain circumstances. For example, there are situations in which the defendant may not have the same level of culpability in a tortious activity.
Practice Question: Carrie and Doug are being sued by Edith. Carrie is rich, while Doug is of modest means. Edith is worried that, if she receives a verdict against Carrie and Doug, she will not be able to recover against Doug. Under what situation would Edith be able to recover the entire verdict, despite Doug’s lack of assets?
- If the court finds that Carrie and Doug are joint and severally liable, then Edith will be able to recover the entire amount of the judgment from Carrie if necessary. Also, she can recover a smaller amount from Doug than Carrie. This leaves Doug and Carrie to argue over rights of contribution; which could be the subject of a separate legal action.
Chang, Howard F. and Sigman, Hilary A., The Effect of Joint and Several Liability Under Superfund on Brownfields. U of Penn, Inst for Law & Econ Research Paper No. 05-21; U of Penn Law School, Public Law Working Paper No. 06-18; International Review of Law and Economics, Vol. 27, 2007. Available at SSRN: https://ssrn.com/abstract=804464
Chang, Howard F. and Sigman, Hilary A., Incentives to Settle Under Joint and Several Liability: An Empirical Analysis of Superfund Litigation. Journal of Legal Studies, Vol. 29, No. 205, January 2000. Available at SSRN: https://ssrn.com/abstract=181828
Steenson, Michael K., Joint and Several Liability in Minnesota: The 2003 Model (2004). William Mitchell Law Review, Vol. 30, No. 3, p. 845, 2004. Available at SSRN: https://ssrn.com/abstract=1527564
Mullin, Charles and Malani, Anup, The Effect of Joint and Several Liability on the Bankruptcy Rate of Defendants: Evidence from Asbestos Litigation (May 27, 2004). Available at SSRN: https://ssrn.com/abstract=552081 or http://dx.doi.org/10.2139/ssrn.552081
Lande, Robert H., Comparative Negligence with Joint & Several Liability: The Best of Both Worlds (December 13, 2012). 42 U. Balt. L. Rev. Online 1 (2012). Available at SSRN: https://ssrn.com/abstract=1291299 or http://dx.doi.org/10.2139/ssrn.1291299