JOINT AND SEVERAL LIABILITY RECONSIDERED Eric J. Hulett Steptoe & Johnson, PLLC

Should joint and several liability be abolished? Should joint and several liability be imposed between a negligent defendant and a defendant who committed an intentional tort or criminal act? Various jurisdictions and authoritative commentators have concluded that joint and several liability cannot be sustained upon any principled basis or upon the more narrow circumstances between negligent and intentional tortfeasors. The West Virginia Supreme Court of Appeals has not been asked to address these specific issues. However, basic principles of West Virginia law concerning joint tortfeasors and the adoption of comparative fault would support abolishing joint and several liability in its entirety or precluding it in the circumstance circumstance negligent and intentional tortfeasors. Fundamental principles of basic fairness and equity recognize that it is essentially unfair and inequitable to force a negligent defendant to pay the judgment assessed against a defendant guilty of intentional or criminal acts. In such cases, the defendant guilty of the intentional/criminal act is typically insolvent; therefore, the Plaintiff also targets the restaurant, store, bar, or nightclub where an incident occurred in order to have a solvent “deep pocket” defendant to pay the entire judgment. This opportunism is not based upon justifiable principles. Requiring a merely negligent defendant to be forced, under the imposition of joint and several liability, to pay the part of the judgment attributable to the intentional/criminal defendant is inherently unjustifiable. To date, a majority of states have abolished or substantially limited joint and several liability.1 “There is a trend in the direction of abrogating the common-law doctrine of joint and

1 See Henry Woods and Beth Deer, Comparative Fault, § 13:4, p. 234 (3d ed.1996 and 2000 Supplement).

MA131074.1 several liability.”2 “[W]ith the advent of comparative negligence, questions began to be raised about the continued viability of the doctrine of joint and several liability. As one commentator stated, ‘holding a defendant tortfeasor, who is only 20 percent at fault, liable for the entire amount of damages is obviously inconsistent with the equitable principles of comparative negligence.’”3 In discussing “pure” joint and several liability, the Restatement, Third, Torts: Apportionment of Liability recognized that retaining joint and several liability in jurisdictions that have adopted a comparative fault system is unfounded. “Pure joint and several liability remains in the few jurisdictions that have not adopted comparative responsibility and in a handful of others, although this allocation of insolvency risks is difficult to square with

comparative responsibility.”4 In summary, a large number of jurisdictions have abolished or limited joint and several liability whether by statute or case law “and the trend is clearly in that direction.”5

Scholarly Opinion Supports Abolision of Joint and Several Liability No less eminent authority on tort law than Dean Prosser concluded that the commonly expressed reasons for allowing the Plaintiff to collect the entire judgment from one tortfeasor, regardless of that tortfeasor’s percentage of fault, are not well founded. In criticizing the widespread application of the concept of “joint tortfeasor” as a rationale for allowing all damages

2 Schwartz, Comparative Negligence, § 15-4, p. 308, 3d ed. (Michie 1994). Schwartz further states that since 1973 only 3 states continue to hold tortfeasors jointly and severally liable: Arkansas, California, and West Virginia. Schwartz, Comparative Negligence, § 15.04, p. 314, 4th ed. (Michie 2002).

3 Comparative Negligence Manual, § 1:16, pp. 1-43, 44 (Clark, Boardman, Callaghan 1995).

4 Section 10, Comment a, pp. 100-101.

5 See note 7 supra.

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2 to be collected from one of several defendants, Prosser explained that anachronistic procedural doctrines, some remaining from English jurisprudence of the Eighteenth Century, have contributed to the misuse of the “joint tortfeasor” concept as a judgment collection device.6 Quite apart from any question of vicarious liability or joinder of defendants, the common law developed a separate principle, that a defendant might be liable for the entire loss sustained by the plaintiff, even though the defendant’s act concurred or combined with that of another wrongdoer to produce the result.

* * *

In England, such concurrent but independent wrongdoers were not confused with joint tortfeasors because there could be no joinder in the absence of concerted action . . . Under the more liberal American rules as to joinder, defendants whose negligence has concurred to produce a single result have been joined in one action, and by loose usage have been called joint tortfeasors.

One immediate result has been to confuse joinder of parties with liability for entire damages . . . Another has been the rigid enforcement of the common law rule that a verdict for one sum must be returned against all those who are found liable in the joint action. This rule, which developed in cases of concerted action, was of course reasonable where the act of one was considered the act of all, and no basis could be found to permit the jury to apportion the damages. It has unfortunate results where joinder is permitted only as a matter of convenience, and it is clear that not all of those who are “necessary parties to the complete determination of the questions involved” are liable for the same damages . . . The rule against separate verdicts has meant either that the courts insist upon separate suits, or what is even worse, that joinder is permitted and each defendant is held liable for the entire damage.7

“‘Joint tort-feasor’ is one of those unhappy phrases of indeterminate meaning, whose repetition has done so much to befog the law. . . An examination of the multitude of cases leads

6 Prosser, Joint Torts and Several Liability, 25 Cal. L. Rev. 413, 413-420 (1937).

7 Keeton, Prossor on Torts, pp. 328-29, 5th ed. (West 1984) (emphasis added).

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3 to the conclusion that ‘joint tort-feasor’ means radically different things to different courts, and often to the same court; that much of the existing confusion is due to an entire failure to distinguish the different senses in which the term is used; and that the separate problems of joinder of parties in the same action, as a matter of procedure, and the substantive liability of two or more defendants for the same result, require separate consideration, and have very little in common.”8 Prosser concluded: “There is no essential connection between joinder and entire liability.”9 Dean Prosser’s guidance has been wisely followed by many jurisdictions. West Virginia Recognizes Principles Rejecting Joint and Several Liability for Intentional Torts

West Virginia has not specifically addressed the issue of joint and several liability between a negligent tortfeasor and an intentional/criminal tortfeasor. Nevertheless, general principles from West Virginia cases discussing joint and several liability support the fundamental premise that a negligent defendant cannot, as a matter of law, be jointly and severally liable with a defendant guilty of an intentional tort or crime. West Virginia has recognized the “equitable consideration that one joint tort-feasor ought not to carry the entire burden.”10 Discussing the unfairness associated with restricting contribution claims, the West Virginia Supreme Court of Appeals stated that “Haynes is designed to moderate the inequity which existed in our law that enabled the plaintiff to cast the entire responsibility for an accident on one of several joint tortfeasors by deciding to sue only

him.”11

8 Prosser, Joint Torts and Several Liability, 25 Cal. L. Rev. 413 (1937).

9 Id. at 421.

10 Haynes v. City of Nitro, 161 W. Va. 230, 240 S.E.2d 544, 550 (1977).

11 Sydenstricker v. Unipunch Prod., Inc., 169 W. Va. 440, 288 S.E.2d 511, 518 (1982).

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4 In the case announcing West Virginia’s adoption of comparative fault, Bradley v. Appalachian Power Co., the Court held that “[w]e do not accept the major premise . . . that a party should recover his damages regardless of his fault. . .”12 Finally, the Court more recently held that there is no joint and several liability for punitive damages.13 The same principle applies — liability for acts allowing for the imposition of punitive damages, such as intentional torts, should not be imposed upon a merely negligent co-defendant. West Virginia implicitly recognizes and should explicitly adopt this progressive trend in the law away from the anachronistic common law “joint tortfeasor” concept, just as it has recognized and adopted the progressive trend away from anachronistic common law negligence theories. West Virginia law has moved steadily forward in basing liability determinations upon a defendant’s degree of fault rather than upon the defendant’s status.14 Abolishing joint and several liability, or precluding it between negligent and intentional tortfeasos, is just another step in this direction. At base, West Virginia law embraces the principle that liability for payment should be commensurate with control of the property. Fault, not the happenstance of status, should be the guiding principle. In the recent past, the West Virginia Supreme Court of Appeals cleaned away centuries of anachronistic common law and joined the progressive trend towards basing liability

12 163 W. Va. 332, 256 S.E.2d 879, 885 (1979).

13 Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).

14 Adkins v. St. Francis Hospital, 149 W. Va. 705, 143 S.E.2d 154 (1965) (charitable immunity abolished); Lee v. Comer, 159 W. Va. 585, 224 S.E.2d 721 (1976) (parental immunity abolished for auto negligence cases); Coffindaffer v. Coffindaffer, 161 W. Va. 557, 244 S.E.2d 338 (1978) (spousal immunity abolished); Gooden v. County Comm. of Webster County, 171 W. Va. 130, 298 S.E.2d 103 (1982) (county immunity abolished); Ohio Valley Contractors v. Bd. of Educ. of Westzel County, 170 W. Va. 240, 293 S.E.2d 437 (1982) (board of education immunity abolished); Long v. City of Weirton, 158 W. Va. 741, 214 S.E.2d 823 (1975) (municipal immunity abolished).

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5 determinations upon fault rather than status, when the Court abolished the old premises liability categories based upon the status of the defendant.15 In Mallet, the Court announced that it retained the ability to “make our own assessment of the reasonableness of the ancient common law . . . and find that it does not comport with the present condition of our society.”16 The Court found it important to recognize that certain common law doctrines “evolved in a much different time, and in a significantly different legal climate than exists today.”17 Courts “must examine the continuing relevance” of anachronistic judicial doctrines “by viewing it in the context of the time in which it was developed.”18 Those “outmoded distinction[s]” such as joint and several liability “though perhaps once an accurate reflection of society’s values, no longer comports with our

notions of fairness, and for that reason should be abandoned.”19 Thus, West Virginia precedent and fundamental legal principles support the rejection of the outmoded common law concept of joint and several liability, particularly as between a negligent tortfeasor and an intentional tortfeasor. Other Jurisdictions Reject Joint and

Several Liability for Intentional Torts Several jurisdictions have abolished joint and several liability for intentional torts by statute or case decision. Those jurisdiction recognize the essential inequity of holding a merely negligent tortfeasor liable to pay the share of the judgment assessed against the defendant guilty of the intentional tort. Those decisions carefully analyze the purported reasons supporting joint

15 Mallet v. Pickens, 206 W. Va. 145, 522 S.E.2d 436 (1999).

16 Mallet, 522 S.E.2d at 439.

17 Id.

18 Id. at 440.

19 Id. at 441.

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6 and several liability and find the reasoning unfounded and often rooted in anomalous historical precedent which no longer applies.20 Various courts recognize this progressive trend against imposing liability for an entire judgment upon one co-defendant regardless of the percentage of fault. Following the adoption of comparative fault in most jurisdictions over the last twenty years, case decisions and commentators have recognized the need to update the doctrine of joint and several liability so that it remains compatible with the principle of comparative fault. “To begin with, approximately twenty years ago, joint and several liability was the rule in every state . . . Since that time, a majority of the states have modified the concept, either by substantial limitation or by outright elimination.”21 “The comparative negligence statutes of Kansas, Pennsylvania, and Vermont all use similar language that may be construed to abolish joint and several liability.”22 Tennessee abolished joint and several liability when it adopted comparative fault.23 Since 1995 Wisconsin has required that a defendant be found 51% or more at fault before joint and several liability may be imposed.24 “New Mexico judicially abolished

20 See e.g., Jake Dear & Steven E. Zipperstein, Comparative Fault and Intentional Torts: Doctrinal Barriers and Policy Considerations, 24 Santa Clara L. Rev. 1 (1984); Gail D. Hollister, Using Comparative Fault to Replace the All-or-Nothing Lottery Imposed in Intentional Torts Suits in Which Both Plaintiff and Defendant Are at Fault, 46 Vand. L. Rev. 121 (1993).

21 Coats v. Penrod Drilling Corp., 61 F.3d 1113, 1131 (5th Cir. 1995). In Coats, although the Fifth Circuit’s opinion involves admiralty issues, it provides a lengthy and well researched discussion of the progressive trends in joint and several liability.

22 Id., p. 309; See Kan. Stat. Ann. 1963 §60-258a(d); Pa.Stat. Ann. Tit. 42, § 7102; Vt. Stat. Ann. Tit. 12, §1036.

23 McIntyre v. Balentine, 833 S.E.2d 52 (Tenn. 1992); See e.g., Comparative Negligence, p. 309.

24 Wis. Stat. Ann §895.045.

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7 joint and several liability shortly after adopting comparative negligence.”25 “In the mid-1980's a significant number of states changed the joint liability rule, in part because of growing awards against ‘deep pocket’ defendants who might be only peripherally responsible for the plaintiff’s injuries.”26 The Fifth Circuit concluded in 1999 that although joint and several liability was in the past considered to be a “universally established principle” it is “fast becoming a minority view. Almost 40 States have now limited joint-and-several liability in some way.”27 Similarly, the South Carolina Court of Appeals found that as of 1998 the doctrine of joint and several liability had been abolished or partially abrogated by 37 states.28 “Of this number, eleven states appear to have abolished the doctrine completely.”29 “The remaining twenty-six states have limited the doctrine’s application either to certain types of damages, causes of action, or to cases involving certain percentages of contributory negligence.”30

25 Id., p. 310.

26 Id., p. 311.

27 Krieser v. Hobbs, 166 F.3d 736, 740 (5th Cir. 1999).

28 Fernandez v. Marks Constr., 330 S.C. 470, 499 S.E.2d 509, 515-16 (S.C. App. 1998).

29 Id. at 516. See: Alaska Stat. § 0917.080 (d)(Michie 1997); Conn. Gen. Stat. Ann. § 52- 572h(c)(West 1991); Ga. Code. Ann. § 51-12-33(a)(Michie Supp. 1997); 735 Ill.Comp. Stat. Ann. 5/-1117 (Smith-Hurd Supp. 1997), but see Best v. Taylor Macine Works, 689 N.E.2d 1057 (Ill. 1997); Ind. Code Ann. § 34-4-33-5(b)(4)(Michie 1997); Kan. Stat. Ann. § 60-258a(d)(West Supp. 1997); Ky. Rev. Stat. § 411.182(3)(Michie 1992); McIntyre v. Balentine, 833 S.W.2d 52, 57 (Tenn. 1992)(superseded by statute); Utah Code Ann. § 78- 27-38(3)(1996); Vt. Stat. Tit. 12, § 1036 (Michie Supp. 1997); Wyo. Stat. Ann. § 1-1- 109(e)(Michie 1997).

30 Id. See: Ariz. Rev. Stat. Ann. § 12-2506(D)(West Supp. 1997); Cal. Civ. Code § 1431.2(a)(West Supp. Rev. State. Ann. § 13-21-111.5(4)(1997); Fla. Stat. Ann. § 768.81(3)(West 1997); Haw. Rev. Stat. Ann. § 663-10.9 (Michie 1995); Idaho Code Ann. § 6-803(3)(Michie 1990); Iowa Code Ann. § 668.4 (West 1987); La. Civ. Code Ann. Art. 2324 (West Supp. 1998); Mich. Comp. Laws Ann. §§ 600.6304 & 600.6312 (West Supp. 1997); Minn. Stat. Ann. § 604.02(1)(West Supp. 1998); Miss. Code Ann. § 85-5-7 (Law. MA131074.1

8 Early in the spread of the doctrine of comparative negligence across the judicial landscape, the Supreme Court of Oklahoma recognized that maintaining joint and several liability was inconsistent with the adoption of a comparative negligence system.31 In Laubach, the Court reviewed the trial of a three car motor vehicle accident. The jury awarded 30% fault to the Plaintiff, 50% fault to the Defendant Martin, and 20% fault to the Defendant Morgan. The trial court then entered a judgment holding both defendants jointly and severally liable for the entire jury verdict. The Laubach Court noted that Oklahoma had adopted a modified comparative negligence system by statute a year earlier in 1977. The Court acknowledged that traditional common law rules made co-defendants jointly and severally liable for the entire amount of a plaintiff’s damages. The Court then recognized that such anachronistic common law rules could not withstand the modern, progressive adoption of comparative negligence. “This principle of entire liability is of questionable soundness under a comparative system where a jury determines the precise amount of fault attributable to each party.”32 “Holding a defendant tortfeasor, who is only 20 percent at fault, liable for the entire amount of damages is obviously inconsistent with the equitable principles of comparative negligence as enacted by the Legislature.”33

Co-op. 1991); Mont. Code Ann. § 27-1-703(2)(1997); Neb. Rev. Stat. Ann. § 25-21, 185.10 (Michie 1995); Nev. Rev. Stat. Ann. § 41.141(5)(Michie 1996); N.H. Rev. Stat. Ann. § 507:7-e(b)(McKinney 1997); N.J. Stat. Ann. § 2A:15-5.3 (West Supp. 1997); N.M. Stat. Ann. § 41-3A-1 (Michie 1996); N.Y. Civ. Prac. Law. § 1601 (McKinney 1997); N.D. Cent. Code Ann. § 32-03.2-02 (Michie 1996); Ohio Rev. Code. Ann. § 2307.31 (Anderson Supp. 1996); Berry v. Empire Indem. Ins. Co., 634 P.2d 718, 720 (Okla. 1981); Ore. Rev. Stat. Ann. § 18.485 (6)(Michie Supp. 1996); S.D. Codified Laws § 15-8-15.1 (Michie Supp. 1997)_; Tex. Civ. Prac. & Rem. Code § 33.013(b) & (c)(West 1997); Wash. Rev. Code Ann. § 4.22.070 (West Supp. 1998); Wis. Stat. Ann. § 895.045(1)(West 1997).

31 Laubach v. Morgan, 1978 Ok 5, 588 P.2d 1071 (1978).

32 Laubach, 588 P.2d at 1074.

33 Id. at 1075.

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9 The Laubach Court rejected the time-worn argument by plaintiffs that joint and several liability should not be rejected because to do so would burden plaintiffs. “It is argued this could work a hardship on a plaintiff if one co-defendant is insolvent. But the specter of the judgment- proof wrongdoer is always with us, whether there is one defendant or many. We decline to turn a policy decision on an apparition.”34 The Supreme Court of Kentucky also recognized that “fundamental fairness” required “some rethinking on the question of joint and several liability.”35 The Kentucky Court began its analysis with the historical justification for and the connection between the doctrines of joint and several liability and contributory negligence. Whereas it is fundamentally unfair for a plaintiff who is only 5 percent at fault to be absolutely barred from recovery from a defendant who is 95 percent at fault [contributory negligence], it is equally and fundamentally unfair to require one joint tort-feasor who is only 5 percent at fault to bear the entire loss when another tort-feasor has caused 95 percent of the loss. Such a result is possible if the only tort-feasor named by the plaintiff in a law suit is only 5 percent at fault and another tort-feasor who is 95 percent at fault is brought in as a third-party defendant. Nix v. Jordan, if allowed to stand, would prohibit apportionment, and the plaintiff would recover his entire loss against the defendant who was 5 percent at fault, leaving that defendant to seek contribution and recover 50 percent, at best, and at worst, with an insolvent third-party defendant, he would recover nothing by contribution and would thus suffer 100 percent of the loss even though only 5 percent at fault.36

Kentucky then joined the progressive trend in rejecting joint and several liability among multiple defendants. “The adoption of comparative fault has ‘established that liability among joint tort-feasors in negligence cases is no longer joint and several but is several only.’”37

34 Id.

35 Dix & Associates Pipeline Contractors, Inc. v. Key, 799 S.W.2d 24, 27 (Ky. 1990).

36 Dix & Assoc., 799 S.E.2d at 28.

37 Roman Catholic Diocese of Covington v. Specter, 966 S.W.2d 286, 291 (Ky. 1998), quoting Dix & Associates Pipeline Contractors, Inc. v. Key, 799 S.W.2d 24, 27 (Ky. 1990). MA131074.1

10 In Specter, the Supreme Court of Kentucky applied the rationale of Dix to intentional torts. The Plaintiff brought a civil action for negligent hiring and supervision against the Covington Diocese which operated the Covington Latin School where Plaintiff was sexually assaulted by a teacher employed by the school. The jury awarded the Plaintiff $50,000 in compensatory damages and $700,000 in punitive damages. The Court held that the reasoning set forth in Dix applied equally to an intentional tort. Therefore, the negligent defendant school would not be jointly and severally liable with the intentional tortfeasor teacher.38 The California Court of Appeals joined the trend in Weidenfeller v. Star and Garter,39 which involved an unprovoked assault of the plaintiff in the bar parking lot. In Widenfeller, the Court expressed the general principle that in cases “where the injured party is attempting to transfer the intentional actor’s responsibility to the negligent tortfeasor” there is no “principled basis” on which to hold the negligent bar defendant jointly and severally liable with the intentional attacker defendant. This progressive principle was earlier recognized and applied in Bartlett v. New Mexico

Welding Supply, Inc.40 In Bartlett, the action arose out of an automobile collision involving three vehicles traveling in the same direction behind each other. The lead car caused a chain collision and then left the scene and remained unidentified. Plaintiff sued the remaining tortfeasor who was identified and obtained a judgment for $100,000, with the jury finding the Defendant 30% at fault and the unknown tortfeasor 70% at fault. New Mexico’s concept of joint and several

liability was comparable to that of West Virginia. The Bartlett Court succinctly stated: “The question is whether, in a comparative negligence case, a concurrent tortfeasor is liable for the

38 Roman Catholic Diocese of Covington v. Specter, 966 S.W.2d 286, 291 (Ky. 1998).

39 1 Cal. App.4th 1, 2 Cal. Rptr.2d 14 (1991)

40 98 N.M. 152, 646 P.2d 579 (1982).

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11 entire damage caused by [other] concurrent tortfeasors. . . .The issue is whether defendant, responsible for 30% of the damage, must pay 100% of the damage. The right of contribution between defendant and the unknown driver does not answer that issue.”41 The Bartlett Court concluded that the “retention of joint and several liability ultimately rests on two grounds; neither ground is defensible.”42 The first ground is the time-worn cliche that joint and several liability is appropriate because the plaintiff’s injury is “indivisible.” The Court, relying upon authoritative commentators’ research and analysis of the common law basis for this assertion of joint and several liability, agreed that “the doctrine ‘cannot be said to be

based on any sound reason.’”43 “The concept of one indivisible wrong, based on common law technicalities, is obsolete, and is not to be applied in comparative negligence cases in New Mexico.”44 The second ground for retaining joint and several liability is “in order to favor plaintiffs [because] a plaintiff should not bear the risk of being unable to collect his judgment.”45 The New Mexico Court rejected this position. “We fail to understand the argument. Between one plaintiff and one defendant, the plaintiff bears the risk of the defendant being insolvent; on what basis does the risk shift if there are two defendants, and one is insolvent?”46 “‘In this final quarter of the twentieth century, it seems startling to find that plaintiffs, as a class, have a greater

41 Bartlett, 646 P.2d at 581-582.

42 Id. at 584.

43 Id.

44 Id. at 585.

45 Id.

46 Id. MA131074.1

12 claim upon the court’s sympathy than defendants.” “Fairness dictates that the blameworthiness of all actors in an incident be treated on a consistent basis.”47 Thus, the New Mexico Court rejected the historical rationales for retaining joint and several liability in light of the advent of comparative fault and in recognition that the anachronistic common law reasons for imposing joint and several liability do not withstand the more modern, progressive trend of the law. Accordingly, the Court stated: “We hold that defendant is not liable for the entire damage caused by defendant and the unknown driver.”48 The Bartlett Court’s rejection of joint and several liability was affirmed more recently in

Medina v. Graham’s Cowboys, Inc.49 In Medina, a bar patron was assaulted in the parking lot of the Cowboys bar by the employee doorman. Plaintiff filed a complaint alleging intentional tort against the doorman and negligent hiring against Cowboys. The Court initially affirmed that New Mexico had abolished joint and several liability among negligent tortfeasors in Bartlett, but noted that it had not addressed the issue of joint and several liability between a negligent tortfeasor and an intentional tortfeasor.50 The Medina Court concluded: If one negligent party is only five percent at fault, that party must bear only five percent of the loss. It would seem inconsistent with this approach to hold a negligent tortfeasor responsible for the entirety of the damage if the concurrent tortfeasor happens to have committed an intentional tort rather than a negligent tort. . . . Thus, the first rule that suggests itself is that the fault of [Defendant] Cowboys and the fault of [Defendant employee] Trujillo should be

47 Id.

48 Id. at 586.

49 113 N.M. 471, 827 P.2d 859 (1992).

50 The liability of the defendant Cowboys was affirmed, based upon the Court’s extension of the respondeat superior doctrine. However, the Court’s discussion clearly rejects joint and several liability between a negligent tortfeasor and an intentional tortfeasor outside the employment context.

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13 compared, with Cowboys bearing responsibility for only its percentage of the damages suffered by [Plaintiff] Medina.51

In Reichert v. Atler,52 the Supreme Court of New Mexico rejected joint and several liability of the defendant bar owner for the judgment rendered against the bar and a bar patron who intentionally shot the plaintiff’s decedent during an argument at the bar. The decedent’s family filed a wrongful death action against the bar for negligent failure to provide adequate security to protect bar patrons. The shooter was never apprehended. The New Mexico Supreme Court approved of the Court of Appeals’ reliance on the Bartlett case, discussed above, and the Blazovic case from New Jersey.53 It stated, “we will not bar the application of comparative-fault principles simply because one of the tortfeasors acted intentionally in this case.”54 “Therefore, we hold that the owner’s negligent failure to protect patrons from foreseeable harm may be compared to the conduct of the third party and that the owner is responsible only for its percentage of fault.”55 The Superior Court of New Jersey has joined the progressive trend in refusing to impose joint and several liability upon a merely negligent hotel bar for the intentional sexual assault of the plaintiff hotel guest by another hotel guest. In Martin v. Prime Hospitality Corp.,56 the Plaintiff was having drinks with friends at the Sports Authority Bar in the Ramada Inn owned by

51 Medina, 827 P.2d at 863.

52 117 N.M. 623, 875 P.2d 379 (1994).

53 Blazovic v. Andrich, 124 N.J. 90, 590 A.2d 222 (1991)(allowing comparison and allocation of the fault between negligent and intentional tortfeasors).

54 Reichert, 875 P.2d at 625.

55 Id., affirmed in Barth v. Coleman, 118 N.M. 1, 878 P.2d 319 (1994), where a bar patron was injured in a barroom fight and sued the bar for negligent failure to keep the premises reasonably safe.

56 2001 WL 1413727 (N.J. Super. A.D., Nov. 14, 2001).

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14 defendant Prime. Another bar/hotel customer persuaded the Plaintiff to return to his room, where he sexually assaulted the Plaintiff. The attacker pled guilty to the assault. The Plaintiff filed a civil action against the hotel and the attacker. The Court held that “Prime’s duty of care did not as a matter of law encompass an obligation to prevent the sexual assault. . . .The sexual assault committed by Harris was neither sufficiently foreseeable nor sufficiently related to Prime’s alleged fault to justify imposing responsibility on Prime for all of Martin’s injuries. [citation omitted]. . . .[I]n our opinion, Harris’s fault should have been compared and apportioned.”57 Therefore, the merely negligent hotel bar defendant should not be held jointly and severally liable with the intentional criminal defendant.

Conclusion The majority of jurisdictions have abolished or substantially limited joint and several liability. Authoritative commentators conclude that no scholarly or principled basis exists for maintaining joint and several liability, particularly following the adoption of comparative fault. This conclusion is exemplified by the many cases holding that a negligent tortfeasor should not be held jointly and severally liable with an intentional tortfeasor. West Virginia law recognizes principles of basic fairness and fault-based tort law and should support the principles used by other jurisdictions to abolish the doctrine of joint and several liability. Therefore West Virginia should join this progressive trend, that many other

jurisdictions have adopted, and abolish joint and several liability.

57 Martin, p. 8.

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