What Is Joint and Several Liability?
The Laws Vary From State to State
The theory of joint and several liability may apply when multiple parties are collectively liable for a person's injuries. Under this theory, the plaintiff may seek compensation from one or more defendants separately or all of them as a group. If only one can pay, the plaintiff may collect the entire award from that defendant. The defendant is required to pay all of the damages regardless of his degree of fault.
Joint and several liability laws are designed to protect plaintiffs who have been injured by multiple defendants when one or more defendants are unable or unwilling to pay their share of the damages. For example, Jane is injured during a surgical procedure performed by Dr. Bones at the Heavenly Hospital. Jane sues Dr. Bones and the hospital jointly for $500,000, claiming they are both liable for her injury. She sues Dr. Bones for medical malpractice and the Heavenly Hospital for its vicarious liability as the doctor's employer. The injury occurred in a state that has a joint and several liability law. Dr. Bones files for bankruptcy, so the hospital is required to pay the entire $500,000 in damages.
Joint and several liability laws ensure that injured parties are compensated even if some responsible parties fail to pay damages due to bankruptcy or some other reason.
Contribution From Co-Defendants
Joint defendants that have paid the entire award may be allowed to seek contribution from defendants that haven't paid any damages. For example, suppose that Parties A, B, and C are jointly and severally liable for an injury suffered by Party D. Parties A and B refuse to pay any damages so Party C pays the entire award. In many states, Party C is permitted to sue Parties A and B for their proportionate share of the damages.
Joint and several liability laws apportion blame based on the ability to pay rather than fault. This means that the defendant with the deepest pocket or the best insurance is often stuck paying all of the damages even if he or she is minimally culpable for the plaintiff’s injury. Because of this inequity, only a handful of states have "pure" joint and several liability laws. Most states have modified their law or eliminated it altogether. In states with modified laws, joint and several liability is typically limited to certain situations. For instance, it may apply only to:
- Certain types of claims, such as those involving intentional torts or pollution
- Economic damages but not non-economic damages (compensation for intangible injuries like pain and suffering)
- Defendants whose liability for the plaintiff’s injury meets a certain threshold, such as 50%
- Defendants acting in concert (acting together by mutual agreement)
Many states that have eliminated their joint and several liability law have replaced it with one based on several liability. Under a several liability law, each party is responsible for that portion of the damages attributable to him. For example, suppose a court has found that Party A and Party B are both liable for Party C's injuries. Party A’s liability is 35% while Party B’s is 65 %. If Party A pays his portion of the award but Party B cannot because he is bankrupt, the plaintiff can't sue Party A for the damages owed by Party B.
Because of the burden they impose on some defendants, joint and several liability laws have been replaced in many states with several liability laws.
Joint and several liability is included in some federal laws. An example is the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). This law, which is often referred to as the Superfund Act, is administered by the EPA. CERCLA applies when the EPA has declared a location a hazardous waste site and identified the parties responsible for cleaning it up. The EPA will first try to negotiate with the parties so they initiate the cleanup. If the parties don't respond, the EPA may file a lawsuit ordering them to clean up the site.
Hazardous waste sites often contain a variety of pollutants that were manufactured, transported, or stored by multiple parties. If the EPA can't determine how much harm is attributable to any one defendant, each may be jointly and severally liable for the costs of the cleanup. This means that one or more defendants may have to pay all of the cleanup costs if some defendants are unable or unwilling to pay. The defendants that have paid for the cleanup may file a lawsuit seeking contributions from those that did not pay.
Legal Information Institute. "Joint and Several Liability." Accessed Dec. 24, 2019.
MWL Law. "Joint and Several Liability and Contribution Laws in All 50 States." Accessed Dec. 24, 2019.
EPA. "Superfund: CERCLA Overview." Accessed Dec. 24, 2019.