The theory of joint and several liability applies when multiple parties are collectively liable for a person's injuries or damages. The initiating party in a lawsuit, referred to as the plaintiff, can seek compensation from one or more defendants separately, or from all of them as a group when they have joint and several liability. The term effectively translates to "together or separately."
A plaintiff can collect the entire award from a single defendant if only one of them can pay. That defendant is required to pay all of the damages regardless of his degree of fault.
What Is Joint and Several Liability?
Joint and several liability laws are designed to protect plaintiffs who have been injured by multiple defendants when one or more defendants might be unable or unwilling to pay their share of the damages.
These laws apportion blame based on the ability to pay rather than on fault. The defendant with the deepest pockets or the best insurance is often stuck paying all the damages even if they're only minimally culpable for the plaintiff’s injury.
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.
The concept of joint and several liability is included in some federal laws, such as the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). This law is often referred to as the Superfund Act, and it's administered by the U.S. Environmental Protection Agency (EPA).
CERCLA applies when the EPA has declared a location to be a hazardous waste site and has identified the parties who are responsible for cleaning it up. The EPA will first try to negotiate with the parties so they initiate the cleanup, but the EPA can file a lawsuit ordering them to clean up the site if the parties don't respond.
Hazardous waste sites often contain a variety of pollutants that were manufactured, transported, or stored by multiple parties. Each defendant can be jointly and severally liable for the costs of the cleanup if the EPA can't determine how much harm is attributable to any one defendant.
One or more defendants might have to pay all the cleanup costs if some defendants are unable or unwilling to pay. The defendants who have paid for the cleanup can then file a lawsuit seeking contributions from those who didn't pay.
How Joint and Several Liability Works
As an example, let's say that Jane is injured during a surgical procedure performed by Dr. Bones at the Heavenly Hospital. Jane jointly sues Dr. Bones and the hospital for $500,000, claiming they're 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 vs. Several Liability
Many states that have eliminated their joint and several liability laws have replaced them with laws based on several liability. Under a several liability law, each party is only responsible for that portion of the damages attributable to them.
|Joint and Several Liability||Several Liability|
|Each party is singularly responsible for the entirety of damages.||Each party is responsible for only the portion of damages that can be attributed to their own actions or negligence.|
|Each party can be forced to pay for the actions or negligence of the others.||No party can be sued on the basis of actions undertaken by or the negligence of the others.|
Using the same example, a court might find that Dr. Bones and Heavenly Hospital are both liable for Jane's injuries. Dr. Bones' liability is 65%, and Heavenly Hospital's liability is 35%. If Heavenly Hospital pays their portion of the award but Dr. Bones cannot because they're bankrupt, Jane can't sue Heavenly Hospital for the damages owed by Dr. Bones in a state with several liability laws.
Rules and Requirements for Joint and Several Liability
Only a handful of states have "pure" joint and several liability laws. Most states have modified these laws or eliminated them entirely. Joint and several liability is typically limited to certain situations in states with modified laws. The theory might apply only to certain circumstances, such as:
- Claims involving intentional torts or pollution
- Economic damages, but not non-economic damages such as punitive 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 together by mutual agreement
Joint and several liability laws have been replaced in many states with several liability laws because of the burden they impose on some defendants.
Do I Need to Pay the Plaintiff?
Some states allow joint defendants who have paid the entire award to seek contribution from defendants who haven't paid. 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 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 protect plaintiffs who have been harmed by a group of defendants.
- The injured party can sue the entire group but collect damages from just one of them if the others are unable or unwilling to pay.
- These laws are based on each defendant’s personal ability to pay rather than degree of fault.
- Many states have modified their joint and several liability laws to address just several liability, where each defendant is only responsible for the portion of harm they personally caused.