Joint and Several Liability

50-state survey CONTENTS

1 Introduction 13 Louisiana 2 A Primer on Joint 13 Maine and Several Liability 14 Maryland 5 Overview of State Law 14 Massachusetts 5 Alabama 15 Michigan 5 Alaska 15 Minnesota 6 Arizona 16 Mississippi 23 Rhode Island 6 Arkansas 16 Missouri 7 California 17 Montana 24 South Carolina 7 Colorado 17 Nebraska 24 South Dakota

8 18 Nevada 25 Tennessee 8 18 New Hampshire 25 Texas 9 Florida 19 26 Utah 9 Georgia 19 New Mexico 26 Vermont 10 Hawaii 20 26 Virginia 10 Idaho 20 North Carolina 27 Washington 11 Illinois 21 North Dakota 27 11 Indiana 21 Ohio West Virginia 12 Iowa 22 Oklahoma 28 Wisconsin 12 Kansas 22 Oregon 28 Wyoming 12 Kentucky 23 29 Offices & Affiliates

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The rule of “joint and several liability” makes each of multiple liable for the entirety of the ’s loss, regardless of each defendants’ degree of fault. For example, a who is only 5 percent at fault might end up paying the entirety of the plaintiff’s – especially if the other defendants are insolvent. Obviously, where the rule applies it can have a significant impact on the parties’ assessment of the case.

In cases with multiple defendants, defendants must know This 50-state overview of the doctrine of joint and several whether “joint and several” liability applies. If it does, it might liability provides the to these questions for each of determine the decision to defend or settle a case. In evaluating the U.S. states. As will be seen, while some states follow pure cases with multiple defendants, to start, defendants are versions of either the several-only or the joint and several advised to learn the answer to the following key questions: liability rules, most states have adopted a middle-of-the road approach. States have hybrid liability rules (where joint and 1. Does “joint and several,” “several” or some modified several liability applies to some portion of damages, such liability rule apply? as the economic loss, and several-only liability applies to 2. Is there a right to contribution among the defendants? the rest) or variable rules (where the type of liability turns on 3. In case of a partial , what becomes of the some aspect of the plaintiff’s , such as joint remaining defendants’ liability? and several liability being triggered only for intentional and environmental , or for a certain percentage of fault). 4. If the plaintiff is partially to blame for his own injuries, what effect does that have on the defendants’ liability?

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A Primer on Joint and Several Liability

The Concept of “Joint and Several Liability” Contribution Among Jointly and “Joint and several liability” allows a plaintiff to “sue for and Severally Liable Tortfeasors recover the full amount of recoverable damages from any Jointly and severally liable defendants are generally (and [defendant].” Restatement (Third) of Torts: Apportionment of theoretically) entitled to recover from one another the Liability § 10 (2000). In its pure form, the practical effect of this percentage of damages attributable to the other’s conduct. doctrine is that the plaintiff can recover the entire amount of The reality, however, is that recovery by way of contribution can damages from any of the jointly and severally liable tortfeasors, be thwarted by a judgment-proof codefendant. Most often, regardless of a particular defendant’s percentage share of fault. this means a bankrupt party or one over whom could not be had. Even where it is possible to collect from Joint and several liability is meant to address the inequity that the other party at fault, the process of doing so can have flows from a responsible actor being unable to pay. In such additional, sometimes significant, costs. a case, someone – the plaintiff or another defendant – will end up paying for the insolvent party’s share. States are left The risk of third-party insolvency creates pressure for solvent with having to decide where to shift the risk created by the defendants (or those with higher policy limits) to settle – or judgment-proof defendant. The choice of who (between the else face the possibility of being held liable for the entirety of remaining defendants and the plaintiff) will ultimately bear the damages with no codefendant from which to recover. The right risk is one of policy, which the states pursue according to their to contribution works to deter undue pressure to settle, but it own preferences. For states that choose to have defendants is an imperfect remedy that does not completely eliminate the bear this burden, joint and several liability is the preferred harshness of joint and several liability for defendants. option. Variations on a Theme Where the doctrine applies, the plaintiff is likely to search for a financially viable (that is, well-insured) defendant with a The Restatement (Third) of Torts discusses five different sufficiently “deep pocket” to ensure full recovery. approaches to dealing with multiple tortfeasors. Restatement (Third) of Torts: Apportionment of Liability § 17, comment a The Test for Application of the Doctrine (2000). Each approach allocates the risk of insolvency of one or more of the responsible tortfeasors differently. Entities may be joint and several tortfeasors if they are liable to the same person for the same harm. Notably, they need The first two approaches systematically favor either defendants not act at the same time or in any concerted way. Instead, the or plaintiffs in cases involving the insolvency of one of the measure of joint and several liability is whether the tortfeasors’ responsible actors. Pure joint and several liability places the conduct produced an indivisible, single harm. For example, risk of insolvency and the burden of identifying nonparty where multiple contractors build a house and that house tortfeasors on defendants. The second approach is pure several collapses due to faulty construction, the contractors are “jointly liability. This approach allocates the risk of insolvency entirely and severally” liable. Similarly, where two or more drivers to the plaintiff. Under pure several liability, the plaintiff may negligently cause a collision in which a pedestrian is injured, recover from each, severally liable, defendant only the portion the drivers are “jointly and severally” liable. of damages that are attributable to that defendant’s fault.

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Because the wholesale risk-shifting of these two approaches The model rule allows for reallocation of a defendant’s share can lead to grossly unfair results, many states have adopted of the judgment if the plaintiff is unable to collect from that varied or hybrid versions of these allocation schemes. Some defendant. Under the proposed rule, in such a circumstance states to alleviate the burden of insolvency through the remaining defendants pay the portion of the uncollectable reallocation of the insolvent party’s liability. Under this track, amount that corresponds to their percentage of liability. A joint and several liability applies to the solvent defendants but party’s payment of an amount greater than its proportionate the comparative share of any insolvent tortfeasor is spread out share gives rise to the right to contribution. among the remaining parties, sometimes the plaintiff included, Under this scheme, the plaintiff’s contributing fault diminishes in proportion to their share of the fault. but does not bar the plaintiff’s right to recovery, provided that Another approach splits the risk of insolvency between the the plaintiff’s fault does not exceed that of the defendants. plaintiff and the solvent defendants: It imposes joint and With respect to partial settlement, the rule directs a pro rata several liability on each tortfeasor whose share of the harm reduction of the judgment against the non-settling defendants, exceeds a certain percentage of fault. Those tortfeasors who corresponding to the portion of the settling party’s share of fall below the set threshold are severally liable. The rest are the fault. jointly and severally liable. The effectiveness of this approach turns on happenstance, not equity; however, because the more The Effect of Partial Settlement tortfeasors there are, the more likely it is that each will have Additional differences exist between the in their a relatively small percentage of fault. Consequently, this rule treatment of partial settlements; that is, cases where the favors defendants when there are many of them and it favors plaintiff reaches a settlement agreement with some, but not all, plaintiffs when there are few tortfeasors. of the defendants. The last major variation is a hybrid one in which liability type Jurisdictions tend to adopt either a pro rata or a pro tanto is assigned based on the type of harm. Most commonly method of apportionment of the settling defendant’s payment. under this approach, joint and several liability is applied to The different approaches lead to sharply different results and the plaintiff’s economic loss and several liability is applied to require different consideration by the defendants. As the noneconomic damages. The underlying policy consideration Eleventh Circuit explains: here values compensation for the tangible, calculable economic loss and permits the risk of insolvency to rest on the Assume, for example, that the of A and B plaintiff for his intangible noneconomic losses. combine to injure C, who then files a against A and B. On the morning of A settles with C for $50,000. In addition to these variations, many states draw distinctions The subsequently finds that A was 75% responsible between damages based on the type of action in which they and B was 25% responsible for the accident and that C’s are sought. actions are frequently treated differently damages totaled $100,000. If neither party had settled, from cases. In some states, distinctions are drawn between judgment would be entered against A for $75,000 and tort cases – while the risk of loss might be on the plaintiff B for $25,000. But given A’s settlement for $50,000, how in a negligence case, joint and several liability will apply for much should B pay? Under a pro rata approach, B would intentional torts or cases where the defendants act in concert. receive a credit for 75% of C’s damages ($75,000) because A, the settling joint tortfeasor, was 75% responsible for the The Uniform Apportionment of Tort accident. Thus, B would owe $25,000 ($100,000 - $75,000) Responsibility Act to C. Under the pro tanto approach, B would only receive In 2003 the National Conference of Commissioners on a credit for the dollar value of A’s settlement ($50,000). Uniform Laws adopted the Uniform Apportionment of Therefore, B would owe $50,000 ($100,000 - $50,000) to C. Tort Responsibility Act. This model legislation calls for Great Lakes Dredge & Dock Co. v. Miller, 957 F.2d apportionment of liability on the several-only model. 1575, 1579 (11th Cir. 1992) Exceptions are recognized for parties acting in concert and for those who fail to prevent another from causing intentional harm.

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The Pro Tanto Approach Conclusion The pro tanto rule reduces a non-settling defendant’s liability The application of pure joint and several liability is on the by the amount paid by a settling defendant. This approach decline between the various jurisdictions. In most jurisdictions, allows for gamesmanship between the plaintiff and a favored the pure form of the doctrine has given way to modified tortfeasor since the plaintiff can settle with one party (for versions, including those that take into account the plaintiff’s enough, for example, to finance the rest of the litigation) and comparative fault. Some states have adopted approaches that rest assured that he will collect the remainder from others if protect, at least to some degree, the unfairness that might the verdict is in his favor. To prevent such outcomes, some otherwise befall “deep pocket” defendants who become jurisdictions require a hearing on culpability and a showing of targets simply because they have the means to satisfy a good faith before settlements are approved. judgment. Regardless of these shifts, however, states remain mindful of the need to continue to ensure the ultimate goal The Pro Rata Approaches of the joint and several liability doctrine: an innocent plaintiff’s recovery. A pure pro rata rule divides liability equally among defendants. If there are three liable defendants, each becomes responsible for one third of the plaintiff’s damages, regardless of how much they actually contributed to the loss. A modified pro rata or proportional approach is more common, however. Under this approach, liability between defendants is apportioned based on their relative degree of fault as determined by a jury. This apportionment then governs each defendant’s liability to the plaintiff.

Under either approach, if the plaintiff reaches a settlement with some but not all defendants, the plaintiff’s damages award is reduced by the settling defendants’ share of the fault. The non-settling defendants pay their own shares. If a defendant settles and it turns out the settlement is less than its share of liability would have been, the plaintiff may not collect the additional money from the other, non-settling defendants. Conversely, if a defendant pays more in settlement than it would have after verdict, it is barred from seeking contribution from the non-settling tortfeasors.

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Overview of State Law

Alabama Pure Joint and Several Liability

Alabama applies the doctrine of pure joint and several Where there has been a settlement with some but not all liability. Keibler-Thompson Corp. v. Steading, 907 So.2d defendants, Alabama applies the pro tanto approach and 435 (Ala. 2005). The state does not provide for fault-based offsets the remaining defendants’ liability by the settlement apportionment between tortfeasors. Ex parte Goldsen, 783 amount. Ex parte Barnett, 978 So.2d 729 (Ala. 2007). So.2d 53 (Ala. 2000). Tortfeasors who pay more than their proportionate share are entitled to contribution. Hardy v. McMullan, 612 So.2d 1146 (Ala. 1992).

Where the plaintiff’s claims are for negligence (not, for example, wanton conduct), any negligence by the plaintiff defeats his entitlement to recover damages. Otherwise, the plaintiff’s damages are reduced by his portion of the fault. John R. Cowley & Bros., Inc. v. Brown, 569 So.2d 375 (Ala. 1990).

Alaska Pure Several Liability

Alaska has adopted several liability and permits the plaintiff to Alaska has a proportionate offset rule for partial settlements. recover from each defendant only that defendant’s share of the Under this rule, a non-settling defendant’s share of the fault. Alaska Stat. § 09.17.080 (1989); Asher v. Alkan Shelter, damages is offset by the payment made by the settling LLC, 212 P.3d 772 (Ak. 2009). The plaintiff’s total damages are defendants in the same ratio as the settling and non-settling offset by his share of the fault. Alaska Stat. § 09.17.080 (1989); defendants’ relative degree of fault. [stat]; Diggins v. Jackson, Joseph v. State, 26 P.3d 459 (Ak. 2001). 164 P.3d 647, 648 (Ak. 2007).

There is no statutory right to contribution between Alaska’s severally liable tortfeasors but a common-law right to contribution is available against non-parties. Alaska Stat. § 09.17.080 (1989); McLaughlin v. Lougee, 137 P.3d 267 (Ak. 2006).

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Arizona Variable Liability

For most torts, Arizona tortfeasors are severally and not jointly Tortfeasors have a right to contribution only where joint and liable. Ariz. Stat. § 12-2506(A) (1984); State Farm Ins. v. Premier several liability applies. Ariz. Stat. § 12-2501 (1993); Dietz v. Manufactured Sys., 172 P.3d 410 (Ariz. 2007). The plaintiff’s General Electric Co., 821 P.2d 166 (Ariz. 1991). When partial negligence is taken into account and his entitlement is reduced settlements are had, unless the case is one of joint and several by his share of the fault. Ariz. Stat. § 12-2505 (1984); Gunnell v. liability, the non-settling tortfeasor is not entitled to a setoff. Ariz. Public Service Co., 46 P.3d 399 (Ariz. 2002). Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493 (Ariz. 1996).

There are some notable exceptions to Arizona’s several liability rule. Joint and several liability remains the rule in cases where applies; where the tortfeasors acted in concert; for actions brought under the Federal Employers’ Liability Act, which addresses compensation of injured railroad workers; and for waste disposal cases. Ariz. Stat. § 12-2506 (1984); Yslava v. Hughes Aircraft Co., 936 P.2d 1274 (Ariz. 1997).

Arkansas Pure Several Liability

Arkansas defendants are severally – and not jointly – liable. In case of a partial settlement, the non-settling tortfeasors Ark. Code § 16-55-201 (2003). Assessment is made against remain liable for their proportionate share of the plaintiff’s the plaintiff if he is also at fault, and the plaintiff’s recovery damages. Scalf v. Payne, 583 S.W.2d 51 (Ark. 1979). is barred if he is more than 50 percent at fault. Ark. Code § 16-55-216 (2003); Johnson v. Rockwell Automation, Inc., 308 S.W.3d 135 (Ark. 2009). Arkansas permits to compensate for any portion of the plaintiff’s damages that are deemed “uncollectable” by increasing, within limits, the solvent defendants’ share of liability. Ark. Code § 16-55-203 (2003). The statute gives a defendant whose share has been increased the right to seek contribution from the defendants who are thought to be judgment-proof. Ark. Code § 16-55-203 (2003).

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California HYBRID AND VARIABLE LIABILITY

In California, a modified approach to joint and several of partial settlements, the non-settling defendants are entitled liability is in place. In any action for personal injury, property to a setoff of any judgment for which they are jointly and damage, or wrongful death, tortfeasors are held jointly and severally liable. Goodman v. Lozano, 223 P.3d 77 (Cal. 2010). severally liable for economic damages and severally only for For noneconomic damages where each defendant is liable only noneconomic damages. Cal. Civ. Code §1431 and 1431.2 for its proportionate share, partial settlement does not affect (1986); Evangelatos v. Superior , 753 P.2d 585 (Cal. 1988). the remaining defendants’ liability. Buttram v. Owens-Corning The defendants’ liability is offset by the plaintiff’s comparative Fiberglas Corp., 941 P.2d 71 (Cal. 1997). fault. Diaz v. Carcamo, 253 P.3d 535, 540 (Cal. 2011). In cases

Colorado VARIABLE LIABILITY

In nearly all Colorado actions, a rule of several (and not joint) In cases where joint and several liability applies, the defendants liability applies. Colo. Stat. § 13-21-111.5 (1987); Vickery v. are entitled to contribution from one another for any portion Evans, 266 P.3d 390 (Colo. 2011). An exception is in place of the damages they pay that is beyond their own share. Colo. for defendants who act in concert. Colo. Stat. § 13-21- Stat. § 13-50.5-102 (1989); Fibreboard Corp. v. Fenton, 845 111.5 (1987); Resolution Trust Corp. v. Heiserman, 898 P.2d P.2d 1168 (Colo. 1993). 1049 (Colo. 1995). In case of a partial settlement, the non-settling defendants In Colorado, the defendants’ liability is offset for the plaintiff’s are entitled to a setoff against the entirety of damages by the . Colo. Stat. § 13-21-111 (1987); pro rata share of the settling tortfeasors’ liability. Colo. Stat. § Kussman v. Denver, 706 P.2d 776 (Colo. 1985). Further, where 13-50.5-105 (1986); Smith v. Zufelt, 880 P.2d 1178 (Colo. 1994). the plaintiff’s action contributed to his own damages to a greater degree than the defendants’ combined negligence, recovery is barred altogether. B.G.’s, Inc. v. Gross, 23 P.3d 691 (Colo. 2001).

Where the damages are punitive, there is no offset for the plaintiff’s comparative share of the fault. Union Pacific Railroad Co. v. Martin, 209 P.3d 185 (Colo. 2009).

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Connecticut Variable Liability

Connecticut defendants in negligence cases are subject to Where the plaintiff’s negligence is an issue, the plaintiff several-only liability. Conn. Stat. § 52-572h (1986); Collins v. may recover only if his negligence is not greater than the Colonial Penn Ins. Co., 778 A.2d 899 (Conn. 2001). Joint and defendants’ combined share of the fault. Conn. Stat. § 52-572h several liability remains the rule for actions that do not sound (1986); Juchniewicz v. Bridgeport Hosp., 914 A.2d 511 (Conn. in negligence. Conn. Stat. § 52-572h (1986); Allard v. Liberty 2007). Where this is true, the plaintiff’s recovery is still reduced Oil Equip. Co. Inc., 756 A.2d 237 (Conn. 2000). Where the by the percentage of his negligence. Conn. Stat. § 52-572h; plaintiff is unable to collect from a defendant, however, the Fleming v. Garnett, 646 A.2d 1308 (Conn. 1994). uncollectable portion of his damages may be reapportioned In case of a settlement with fewer than all defendants, among the remaining defendants in the same proportion as the judgment is reduced by the proportion of the settling their share of liability. Conn. Stat. § 52-572h (1986); Babes defendants’ fault. Conn. Stat. § 52-572h (1986); Carlson v. v. Bennett, 721 A.2d 511 (Conn. 1998). In case of such Waterbury Hosp., 905 A.2d 654 (Conn. 2006). reapportionment, the right of contribution exists. Conn. Stat. § 52-572h (1986).

Delaware Pure Joint and Several Liability

In Delaware, joint and several liability applies, so a plaintiff may In case of a partial settlement, the non-settling tortfeasor’s recover the entirety of his damages from any one of multiple liability is reduced by the amount of the settlement or by what tortfeasors. 10 Del. Code § 6301 (1953); Blackshear v. Clark, would have been the settling tortfeasor’s pro rata share of the 391 A.2d 747 (Del. 1978). The joint and several tortfeasors judgment, whichever is greater. 10 Del. Code § 6304 (1953); have a right of contribution against each other. 10 Del. Code Medical Center v. Mullins, 637 A.2d 6 (Del. 1994). § 6302 (1953); Reddy v. PMA Insurance Co., 20 A.3d 1281 (Del. 2011).

Where a Delaware plaintiff is more than 50 percent at fault for his own injuries and where the defendants’ conduct was plain negligence (rather than recklessness), the plaintiff’s recovery is barred. Brittingham v. Layfield, 962 A.2d 916 (Del. 2008). Where the plaintiff bears no more than 50 percent of the fault, his recoverable damages are limited proportionately.

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Florida Variable Liability

Florida repealed the doctrine of joint and several liability Where the plaintiff settles with some (but not all) defendants, in negligence cases and replaced it with a system of pure the settling tortfeasor waives its right to contribution. Fla. Stat. comparative fault. Fla. Stat. § 768.81 (2006); Merrill Crossings § 768.31 (2006). The remaining tortfeasors are entitled to a Assocs. v. McDonald, 705 So.2d 560 (Fla. 1997). The pure setoff for the settlement amount; however, for noneconomic several liability rule does not apply to a host of actions, damages this right is triggered only if the settling defendant including those concerning environmental torts, intentional is assessed some portion of the fault. D’Angelo v. Fitzmaurice, torts and transactions in securities. Fla. Stat. § 768.81 (2006); 863 So.2d 311 (Fla. 2003). Smith v. Department of Ins., 507 So.2d 1080 (Fla. 1987).

Any fault of the plaintiff proportionally diminishes the amount that he is entitled to recover. Fla. Stat. § 768.81(2) (2011); Am. Home Assur. Co. v. Nat’l R.R. Passenger Corp., 908 So.2d 459 (Fla. 2005).

Georgia Pure Several Liability

Liability is purely several in Georgia. Ga. Code § 51-12-33(b) There is no right to contribution between the codefendants, (1987); Cavalier Convenience, Inc. v. Sarvis, 699 S.E.2d 104 as each is liable only for its proportionate share. Ga. Code § (Ga. 2010). Where the plaintiff contributed to his own loss but 51-12-33 (2005); McReynolds v. Krebs, 725 S.E.2d 584 (Ga. the plaintiff’s fault accounts for less than 50 percent of the fault, 2012). Any settling tortfeasors’ fault is considered in assessing total liability is reduced by the plaintiff’s share. Ga. Code § the non-settling tortfeasors’ portion of fault, but no setoff is 51-12-33 (2005); Merry v. Robinson, 313 Ga. App. 321 (Ga. Ct. permitted for the settlement amount. McReynolds v. Krebs, App. 2011). Where the plaintiff’s share of the fault is more than 725 S.E.2d 584 (Ga. 2012). 50 percent, the plaintiff may not recover. Ga. Code § 51-12-33 (2005); Bailey v. Annistown Rd. Baptist Church, 301 Ga. App. 677 (Ga. Ct. App. 2009).

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Hawaii Hybrid and Variable Liability

Hawaii replaced joint and several liability with several-only A plaintiff who contributed to his own injuries may recover for liability but it did so with significant exceptions and limitations. his loss, less the pro rata share that is his own fault, provided Haw. Stat. § 663-10.9 (1999); Taylor-Rice v. State, 94 P.3d 659 that his fault does not outweigh the defendants’ cumulative (Haw. 2004). Joint and several liability remains the rule for share of fault. Haw. Stat. § 663-31 (1984); Steigman v. noneconomic damages in personal injury cases, all damages Outrigger Enterprises, 267 P.3d 1238 (Haw. 2011). Where the in intentional tort cases, cases, environmental plaintiff’s fault is greater than the defendants’ fault, however, damage cases and having to do with the maintenance the plaintiff may not recover. Haw. Stat. § 663-31 (1984); Ozaki of highways. Haw. Stat. § 663-10.9 (1999); Kienker v. Bauer, v. Ass’n of Apartment Owners of Bay, 954 P.2d 644 129 P.3d 1125 (Haw. 2006). In cases where one of these (Haw. 1998). exceptions applies, joint and several liability is the rule, and Where there is a partial settlement, there is also a right to tortfeasors are entitled to contribution from one another for a setoff, in the amount of the settlement, against any sums any payment they made beyond their proportionate share. payable to the plaintiff by any remaining joint tortfeasors. Haw. Stat. § 663-12 (1984); Gump v. Wal-Mart Stores, Inc., 5 Haw. Stat. § 663-15.5 (2001); Troyer v. Adams, 77 P.3d 83 P.3d 407 (Haw. 2000). (Haw. 2003).

Idaho Variable Liability

Idaho abolished the common-law doctrine of joint and several Partial settlement by a jointly and severally liable tortfeasor liability for all cases except those involving defendants acting reduces the remaining tortfeasors’ liability by the settlement in concert and cases where liability is vicarious. Idaho Code § amount. Idaho Code § 6-805 (1991); Quick v. Crane, 727 P.2d 6-803 (1971); Jones v. HealthSouth Treasure Valley Hosp., 206 1187 (Idaho 1986). Where the defendants are only jointly (and P.3d 473 (Idaho 2009). Tortfeasors have a right to contribution not severally) liable, partial settlement has no effect on the from each other for any payment beyond their proportionate remaining defendants’ liability. Idaho Code § 6-805 (1991); share, provided that joint and several liability applies. Idaho Tuttle v. Wayment Farms, 952 P.2d 1241 (Idaho 1998). Code § 6-803 (1971); Horner v. Sani-Top, Inc., 141 P.3d 1099 (Idaho 2006).

Where the plaintiff is 50 percent or more at fault, he may not recover. Idaho Code § 6-801 (1971); Ross v. Coleman Co., 141 P.3d 1099 (Idaho 1988). Where the plaintiff is at fault to some degree that is less than 50 percent, he may recover his damages less the percentage that is attributable to his own actions. Idaho Code § 6-801 (1971); Salinas v. Vierstra, 695 P.2d 369 (Idaho 1985).

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Illinois Variable Liability

Illinois defendants are jointly and severally liable for damages. Damages are discounted by the plaintiff’s comparative 735 Il. Comp. Stat. 5/ 2-1117 (1995); Miller v. Rosenberg, negligence. 735 Il. Comp. Stat. 5/ 2-1116 (1995); Coney 749 N.E.2d 946 (Ill. 2001). The exception to this rule is for v. J.L.G. Industries, 454 N.E.2d 197 (Ill. 1983). Where the defendants who bear less than a quarter of the plaintiff’s plaintiff is more than 50 percent at fault, however, he may not own liability. With some exclusions (such as for medical recover at all. 735 Il. Comp. Stat. 5/ 2-1116 (1995); Burke v. 12 cases) these defendants remain liable jointly Rothschild’s Liquor Mart, 593 N.E.2d 522 (Ill. 1992). and severally for plaintiff’s medical and related expenses but In case of a partial settlement, the non-settling tortfeasors’ are only severally liable for the remainder of the plaintiff’s liability is reduced by the amount of the settlement. 740 Il. damages. 735 Il. Comp. Stat. 5/ 2-1117 (1995); Unzicker v. Comp. Stat. 100/ 2 (1987); Board of Trustees v. Coopers & Kraft Food Ingredients Corp., 783 N.E.2d 1024 (Ill. 2002). Lybrand, 803 N.E.2d 460 (Ill. 2003). The right of contribution exists among jointly and severally liable tortfeasors. 740 Il. Comp. Stat. 100/ 2 (1987); People v. Brockman, 574 N.E.2d 626 (Ill. 1991).

Indiana Variable Liability

Under Indiana’s Comparative Fault Act, defendants are In addition, a settlement between plaintiff and one defendant severally liable for damages unless the action sounds in does not have an effect on the other tortfeasors. Should the medical malpractice. Ind. Code § 34-51-2-8 (1985); Control settlement amount be greater than the settling defendant’s Techniques, Inc. v. Johnson, 762 N.E.2d 104 (Ind. 2002). liability, the windfall (or, conversely, the loss) is the plaintiff’s; non-settling defendants do not receive a “credit” for another’s If the plaintiff is more than 50 percent at fault, he is barred settlement. R.L. McCoy v. Jack, 772 N.E.2d 987 (Ind. 2002). from recovering damages. Ind. Code § 34-51-2-8 (1985); TRW Vehicle Safety Sys. v. Moore, 936 N.E.2d 201 (Ind. 2010). Otherwise, damages are reduced pro rata by the plaintiff’s percentage of fault. Ind. Code § 34-51-2-5 (1985); Green v. Ford Motor Co., 942 N.E.2d 791 (Ind. 2011).

Where each party is liable only for their percentage of fault, there is no right of contribution among Indiana tortfeasors. Ind. Code § 34-51-2-12 (1998); Simon v. United States, 805 N.E.2d 798 (Ind. 2004).

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Iowa Hybrid and Variable Liability

In Iowa, joint and several liability applies but only to defendants In all cases, the defendants’ liability is offset by the plaintiff’s who are 50 percent or more at fault and only with respect to share of negligence. Iowa Code § 668.3 (1984); Mulhern v. the plaintiff’s economic damages. Iowa Code § 668.4 (1984); Catholic Health Initiatives, 799 N.W.2d 104 (Iowa 2011). In no Estes v. Progressive Classic Ins., 809 N.W.2d 111 (Iowa 2012). event may the plaintiff recover if he is more than 50 percent Where liability is joint and several, a defendant paying more at fault. Iowa Code § 668.3 (1984); Franklin v. Andrews, 595 than its proportionate share is entitled to contribution from the N.W.2d 488 (Iowa 1999). other defendants. Iowa Code § 668.5 (1984); Wilson v. Farm In case of a partial settlement, the non-settling tortfeasors’ Bureau Mut. Ins., 770 N.W.2d 324 (Iowa 2009). liability is reduced by the settling defendants’ percentage share of liability. Iowa Code § 668.7 (1984); Thomas v. Solberg, 442 N.W.2d 73 (Iowa 1989).

Kansas Pure Several Liability

In Kansas, each party found liable is responsible to pay only its The defendants’ liability is offset by the plaintiff’s share of portion of the awarded damages. Kan. Stat. § 60-258a (1974); the fault. Kan. Stat. § 60-258a (1974); Gaulden v. Burlington Brown v. Keill, 580 P.2d 867, 874 (Kan. 1978). Since defendants Northern, Inc., 654 P.2d 383 (Kan. 1982). Where the plaintiff’s do not pay another’s share of the damages, there is no right negligence is of equal or greater proportion than the of contribution between them. Mathis v. TG&Y, 751 P.2d 136 defendants’ negligence, however, the plaintiff may not recover (Kan. 1988). For the same reason, a partial settlement has no at all. Kan. Stat. § 60-258a (1974); Wilson v. Kansas Power & effect on the liability of the remaining tortfeasors. Dodge City Light Co., 657 P.2d 546 (Kan. 1983). Implement, Inc. v. Board of County Commissioners, 205 P.3d 1265 (Kan. 2009).

Kentucky Pure Several Liability

Kentucky has also replaced joint and several liability with The plaintiff’s negligence is considered in fault allocation under several-only liability. Ky. Stat. § 411.182 (1988); Degener v. Hall the Kentucky statutory scheme: the defendants’ liability is Contracting, 27 S.W.3d 775 (Ky. 2000). The right of contribution reduced by the plaintiff’s share of the fault. Ky. Stat. § 411.182 between codefendants was extinguished with joint and several (1988); Koching v. International Armament Corp., 772 S.W.2d liability. Dix & Assocs. Pipeline Contractors v. Key, 799 S.W.2d 634 (Ky. 1989). Any settling defendants’ share is similarly 24 (Ky. 1990). considered and used to reduce the remaining defendants’ liability. Ky. Stat. § 411.182 (1988); Owens Corning Fiberglass Corp. v. Parrish, 58 S.W.3d 467 (Ky. 2001).

12 Joint and Several Liability

Louisiana Variable Liability

Louisiana defendants are generally severally liable. La. Code Regardless of the type of liability, all Louisiana defendants are Art. 2324 (1979); Johnson v. Morehouse Gen. Hosp., 63 So.3d entitled to a setoff for the percentage share of fault of any 87 (La. 2011). There is no right to contribution among severally settled party. Farbe v. Casualty Reciprocal Exch., 765 So.2d liable defendants as each is liable to pay only its share of the 994 (La. 2000). plaintiff’s damages. Cole v. Celotex Corp., 599 So.2d 1058 (La. 1992).

Defendants who are found to have conspired to commit an intentional tort, however, are jointly and severally liable to the plaintiff. La. Code Art. 2324 (1979); Ross v. Conoco, Inc., 828 So.2d 546 (La. 2002). Further, while severally liable defendants’ liability is offset by the plaintiff’s percentage of fault, this setoff is unavailable to those defendants who are liable for an intentional tort. La. Code Art. 2323 (1979); Landry v. Bellanger, 851 So.2d 943 (La. 2003).

Maine Pure Joint and Several Liability

In Maine, all defendants are jointly and severally liable to If a partial settlement is reached, the amount of that settlement the plaintiff for the full amount of a judgment. 14 Ma. Stat. § is deducted from the plaintiff’s judgment as against the 156 (1965); Peerless Div. v. United States Special Hydraulic remaining defendants. Me. Stat. § 163 (1965); Hoitt v. Hall, 661 Cylinders Corp., 742 A.2d 906 (Me. 1999). The right of A.2d 669 (Me. 1995). contribution exists among these jointly and severally liable tortfeasors. Peerless Ins. Co. v. Progressive Ins. Co., 822 A.2d 1125 (Me. 2003).

The defendants’ liability for damages is reduced by any negligence attributable to the plaintiff. 14 Ma. Stat. § 156 (1965); Austin v. Raybestos-Manhattan, 471 A.2d 280 (Me. 1984). Where the plaintiff is as much at fault as the defendants, however, the plaintiff may not recover at all. 14 Ma. Stat. § 156 (1965); Amica Mut. Ins. Co. v. of Pecci, 953 A.2d 369 (Me. 2008).

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Maryland Pure Joint and Several Liability

In tort cases, Maryland follows the doctrine of pure joint and In a partial settlement, the judgment against non-settling several liability. Md. Code § 3-1401 (1973); Owens-Illinois, tortfeasors is reduced by the amount of the settlement. Md. Inc. v. Cook, 872 A.2d 969 (Md. 2005). There is a right to Code § 3-1404 (1973); Scapa Dryer Fabrics v. Saville, 16 A.3d contribution among joint tortfeasors for amounts paid beyond 159 (Md. 2011). their proportionate share of the judgment. Md. Code § 3-1402 (1973); Parler & Wobber v. Miles & Stockbridge, 756 A.2d 526 (Md. 2000).

Significantly, a Maryland plaintiff who contributes to his own injuries is barred from all recovery. Harrison v. Montgomery County Bd. of Ed., 456 A.2d 894 (Md. 1983). The exception to this rule lies in strict liability cases, in which a plaintiff who contributes to his own injuries may still recover his damages. Ellsworth v. Sherne Lingerie, 495 A.2d 348 (Md. 1985).

Massachusetts Pure Joint and Several Liability

Massachusetts tort defendants are jointly and severally liable. In case of a partial settlement, the non-settling tortfeasors’ Ann. L. Mass. Ch. 231B, § 1 (1962); O’Connor v. Raymark liability is reduced by the settlement amount. Ann. L. Mass. Ch. Industries, 518 N.E.2d 510 (Mass. 1988). Defendants’ share of 231B, § 4 (1962); Boston Edison Co. v. Tritsch, 346 N.E.2d 901 liability is divided equally, regardless of their degree of fault. (Mass. 1976). Ann. L. Mass. Ch. 231B, § 1 (1962); Zeller v. Cantu, 478 N.E.2d 930 (Mass. 1985). If they pay more than their share, they are entitled to contribution from defendants who paid less. Ann. L. Mass. Ch. 231B, § 1 (1962); Shantigar Found. v. Bear Mt. Builders, 804 N.E.2d 324 (Mass. 2004).

The plaintiff’s comparative negligence reduces the defendants’ liability. Ann. L. Mass. Ch. 231, § 85 (1973); Mirageas v. Massachusetts Bay Transp. Authority, 465 N.E.2d 232 (Mass. 1984). Where the plaintiff’s relative degree of fault is greater than the defendants’ relative degree of fault, the plaintiff may not recover at all. Ann. L. Mass. Ch. 231, § 85 (1973); DeSanctis v. Lynn Water & Sewer Comm’n, 666 N.E.2d 1292 (Mass. 1996).

14 Joint and Several Liability

Michigan Variable Liability

Generally, any Michigan tort defendant is severally liable for The right to contribution among joint tortfeasors exists. Gerling damages attributed to its percentage of fault. Mich. Comp. L. Konzern Allgemeine Versicherungs AG v. Lawson, 693 N.W.2d § 600.6304 (1995); Romain v. Frankenmuth Mutual. Ins., 762 149 (Mich. 2005). N.W.2d 911 (Mich. 2009). Significant exceptions exist, however; When a partial settlement is reached in cases where joint and most notably, joint and several liability remains the rule in several liability is the rule, the non-settling defendants’ liability medical malpractice actions. Mich. Comp. L. § 600.6304 (1995); is offset by the amount of the settlement. Kaiser v. Allen, 693 Driver v. Naini, 802 N.W.2d 311 (Mich. 2011). N.W.2d 149 (Mich. 2008). If the plaintiff is partially at fault in his resulting damages, then his recovery is limited to exclude the portion of his loss that is attributable to him. Mich. Comp. L. § 600.6304 (1995); Craig v. Larson, 439 N.W.2d 899 (Mich. 1989).

Minnesota Variable Liability

Minnesota largely follows the several-only liability model. Where there is a partial settlement, the settlement amount is Minn. Stat. § 604.02 (2003); Staab v. Diocese of St. Cloud, 813 deducted from the jury’s award after apportionment, so that N.W.2d 68 (Minn. 2012). Joint and several liability remains the only in cases of joint and several liability does the non-settling rule, however, for defendants who are more than 50 percent at tortfeasor benefit from the settlement of another party. Minn. fault, where there is collusion among the defendants, and for Stat. § 604.01 (2003); Rambaum v. Swisher, 435 N.W.2d 19 intentional and environmental tort cases. Minn. Stat. § 604.02 (Minn. 1989). (2003); Staab v. Diocese of St. Cloud, 813 N.W.2d 68 (Minn. 2012). In cases of joint and several liability, any defendant that pays more than its proportionate share is entitled to contribution. Tolbert v. Gerber Indus., Inc., 255 N.W.2d 362 (Minn. 1977).

Where the plaintiff is at fault and his fault is less than the defendants’ fault, the defendants’ liability is reduced proportionately. Minn. Stat. § 604.02 (2003); Moorhead Economic Development Authority v. Anda, 789 N.W.2d 860 (Minn. 2010).

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Mississippi Variable Liability

Mississippi generally follows the doctrine of several liability. Negligence by the plaintiff does not bar recovery but it does Miss. Code § 85-5-7 (1989); City of Ellisville v. Richardson, 913 diminish the amount of damages by the proportion of the So.2d 973 (Miss. 2005). However, defendants are jointly and plaintiff’s fault. Miss. Code § 11-7-15 (1911); Coho Resources, severally liable if they act on a common plan. Miss. Code § Inc. v. Chapman, 913 So.2d 899 (Miss. 2005). 85-5-7 (1989); J. B. Hunt Transport v. Forrest General Hosp., In case of a partial settlement, the settlement amount is 34 So.3d 1171 (Miss. 2010). When joint and several liability deducted from the plaintiff’s award prior to apportionment. applies, defendants paying more than their proportionate Mack Trucks, Inc. v. Tackett, 841 So.2d 1107 (Miss. 2003). share are entitled to contribution. Miss. Code § 85-5-7 (1989); DePriest v. Barber, 798 So.2d 456 (Miss. 2001).

Missouri Variable Liability

In Missouri, joint and several liability applies only to defendants The plaintiff’s negligence, if any, reduces the defendants’ who are 51 percent or more at fault; are employees of liability by the degree of the plaintiff’s fault. Gustafson v. another party’or are liable by operation of the Federal Benda, 661 S.W.2d 11 (Mo. 1983). Employers Liability Act. Mo. Stat. § 537.067 (2005). For all If the plaintiff settles with some but not all defendants, the right other defendants, Missouri applies several liability. Mo. Stat. to contribution is extinguished and the judgment against the § 537.067 (2005); Burg v. Dampier, 346 S.W.3d 343 (Mo. Ct. remaining defendants is offset by the settlement amount. Mo. App. W. Dist. Div. 2 2011). Stat. § 537.060 (1939); Fast v. Marston, 282 S.W.3d 346 (Mo. Where joint and several liability applies, defendants 2009). paying more than their proportionate share are entitled to contribution. Mo. Stat. § 537.060 (1939); Missouri Pacific Railroad Co. v. Whitehead & Kales Co., 566 S.W.2d 466 (Mo. 1978).

16 Joint and Several Liability

Montana Variable Liability

Montana follows the rule of joint and several liability for The plaintiff’s negligence, provided it is less than the defendants who are most at fault. Mont. Code § 27-1-703 defendants’ share of the fault, proportionately diminishes his (1979); Deere & Co. v. District Court, 730 P.2d 396 (Mont. right to recovery. Mont. Code § 27-1-70 (1987). Otherwise, 1986). Liability is several only for defendants whose negligence the plaintiff may not recover. Payne v. Knutson, 99 P.3d 200 is 50 percent or less, provided they did not act in concert with (Mont. 2004). others. Mont. Code § 27-1-703 (1979); Newville v. Department In case of a partial settlement, the right to contribution is of Family Services, 883 P.2d 793 (Mont. 1994). There is a right extinguished and the remaining defendants’ liability is reduced, to contribution from another defendant where a party pays using the pro tanto approach, by the amount of the settlement. more than its proportionate share of the plaintiff’s damages. Hulstine v. Lennox Indus., 237 P.3d 1277 (Mont. 2010). Mont. Code § 27-1-703 (1979); Consolidated Freightways v. Osier, 605 P.2d 1076 (Mont. 1979).

Nebraska Hybrid and Variable Liability

Generally, for economic damages, Nebraska defendants Only where the plaintiff’s negligence is less than 50 face joint and several liability. Neb. Stat. § 25-21,185.10 percent may a plaintiff recover. In these cases, the plaintiff’s (1992); Haag v. Bongers, 589 N.W.2d 318 (Neb. 1999). For comparative negligence proportionally diminishes the amount noneconomic damages, liability is several only. Neb. Stat. § to which the plaintiff is entitled. Neb. Stat. § 25-21,185.09 25-21,185.10 (1992); Maxwell v. Montey, 631 N.W.2d 455 (1992); Shipler v. General Motors, 710 N.W.2d 807 (Neb. 2006). (Neb. 2001). An exception exists for defendants acting in If the plaintiff settles with some, but not all, defendants, concert with each other: their liability is joint and several the judgment for the remaining jointly and severally liable regardless of the type of damages. Neb. Stat. § 25-21,185.10 defendants is reduced by the pro rata share of the settled (1992). The right to contribution exists for jointly and severally party. Neb. Stat. § 25-21,185.11 (1992); Tadros v. City of liable parties that pay more than their share. Estate of Powell Omaha, 735 N.W.2d 377 (Neb. 2007). ex rel. Powell v. Montange, 765 N.W.2d 496 (Neb. 2009).

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Nevada Variable Liability

In most cases, Nevada defendants’ liability is several only. A comparatively negligent plaintiff may recover the portion of Nev. Stat. § 41.141 (1973); Buck v. Greyhound Lines, 783 P.2d his damages that is not attributable to his own fault, provided 437 (Nev. 1989). Significant exceptions exist, however. Joint that his negligence is less than the combined negligence of the and several liability remains the rule for cases involving strict defendants. Nev. Stat. § 41.141 (1973); Cromer v. Wilson, 225 liability, environmental torts and cases where the defendants P.3d 788 (Nev. 2010). act in concert. Nev. Stat. § 41.141 (1973); GES, Inc. v. Corbitt, If a defendant settles with the plaintiff, the plaintiff’s recovery 21 P.3d 11 (Nev. 2001). Should a jointly and severally liable from the other defendants is reduced by the amount of the defendant pay more than its proportionate share, it generally settlement and the right to contribution is extinguished. Nev. has a right to contribution from codefendants. Nev. Stat. § Stat. § 41.141 (1973); Nev. Stat. § 17.245 (1973); Banks v. 17.225 (1973); Van Cleave v. Gamboni Constrution, 706 P.2d Sunrise Hosp., 102 P.3d 52 (Nev. 2004). 845 (Nev. 1985). There is no right to contribution, however, in cases involving intentional torts. Nev. Stat. § 17.255 (1973); Evans v. Dean Witter Reynolds, Inc., 5 P.3d 1043 (Nev. 2000).

New Hampshire Variable Liability

New Hampshire applies joint and several liability to defendants Fault by the plaintiff does not bar his recovery provided that who are 50 percent or more at fault, but applies several-only it is not greater than the defendants’ fault, but the plaintiff’s liability for defendants whose fault is less than 50 percent. damages are reduced by the portion of the fault attributed N.H. Stat. § 507:7-e (1997); Rodgers v. Colby’s Ol’ Place, 802 to the plaintiff. N.H. Stat. § 507:7-d (1997); Ocasio v. Federal A.2d 1159 (N.H. 2002). Liability is joint and several, however, Express, 33 A.3d 1139 (N.H. 2011). regardless of the parties’ percentage of fault if the defendants If the plaintiff settles with some but not all tortfeasors in a acted in concert. N.H. Stat. § 507:7-e (1997); Gouldreault v. case where the remaining defendants’ liability is joint and Kleeman, 965 A.2d 1040 (N.H. 2009). several, the settlement amount is deducted from the total A defendant who pays more than its proportionate share damages award. Otherwise, the remaining defendants pay is entitled to contribution. N.H. Stat. § 507:7-e (1997); Pike their proportionate share of the judgment, irrespective of the Industries v. Hiltz Construction, 718 A.2d 236 (N.H. 1998). If a settlement. N.H. Stat. § 507:7-h (1997); N.H. Stat. § 507:7-i judgment for contribution is uncollectable from a defendant, (1997); Nilsson v. Bierman, 839 A.2d 25 (N.H. 2003). the amount of that judgment is reallocated among the remaining defendants in accordance with their proportionate share of the plaintiff’s damages. N.H. Stat. § 507:7-e (1997); Rodgers v. Colby’s Ol’ Place, 802 A.2d 1159 (N.H. 2002).

18 Joint and Several Liability

New Jersey Variable Liability

New Jersey draws a distinction between defendants based A comparatively negligent plaintiff may recover his on their degree of fault: several only liability is applied to a proportionately reduced damages only if his negligence does defendant less than 60 percent at fault, while a defendant 60 not exceed the degree of fault of the defendant from whom percent or more at fault is liable jointly and severally. N.J. Stat. the plaintiff seeks to collect. N.J. Stat. § 2A:15-5.3 (1995); § 2A:15-5.3 (1995); Gennari v. Weichert Co., 691 A.2d 350 Reyes v. Egner, 991 A.2d 216 (N.J. 2010). (N.J. 1997). If judgment is uncollectable from a defendant, If a partial settlement is reached, the remaining defendants’ the plaintiff may recover the uncollectable amount of his liability is reduced on a pro rata basis. N.J. Stat. § 2A:15-5.3 damages from solvent defendants who are responsible to (1995); Steele v. Kerrigan, 689 A.2d 685 (N.J. 1997). pay their proportionate share of the unrecoverable award. N.J. Stat. § 2A:15-5.3 (1995); Brodsky v. Grinnell Haulers, 853 A.2d 940 (N.J. 2004). A defendant who pays more than its percentage share is entitled to seek contribution from the other defendants. N.J. Stat. § 2A:15-5.3 (1995); Steele v. Kerrigan, 689 A.2d 685 (N.J. 1997).

New Mexico Variable Liability

The general rule in New Mexico is several liability. N.M. Stat. The plaintiff contributing to his own damages does not bar § 41-3A-1 (1987); Herrera v. Quality Pontiac, 73 P.3d 181 his right to recover, but it does diminish his entitlement on (N.M. 2003). Certain exceptions exist, however, including for a proportionate basis. N.M. Stat. § 41-3A-1 (1987); Barth v. intentional tortfeasors, vicariously liable defendants, the first of Coleman, 878 P.2d 319 (N.M. 1994). successive tortfeasors, defendants named in products liability In case of a partial settlement, the settlement amount is cases and cases involving inherently dangerous activities. Lewis deducted from the total damages in joint and several liability v. Samson, 35 P.3d 972 (N.M. 2001). The right of contribution cases only. N.M. Stat. § 41-3-4 (1987); McConal Aviation v. exists among joint tortfeasors. N.M. Stat. § 41-3-2 (1987); Commercial Aviation Insurance, 799 P.2d 133 (N.M. S. 1990). Payne v. Hall, 137 P.3d 599 (N.M. 2006). Of course, severally liable defendants who pay only their proportionate share are not entitled to contribution. Otero v. Jordan Restaurant, 922 P.2d 569 (N.M. 1996).

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New York Hybrid and Variable Liability

In New York, the general rule is joint and several liability. The plaintiff’s fault, if any, diminishes the amount of damages Cooney v. Osgood Machinery, 612 N.E.2d 277 (N.Y. 1993). he is entitled to recover by the degree of his own fault – but Exceptions exist, however. Personal injury defendants who it does not bar the plaintiff’s action. N.Y. Civ. Prac. L. and R. § are less than 50 percent liable face several-only liability for 1411 (1975); Trupia v. Lake George Central School Dist., 927 the plaintiff’s noneconomic damages. N.Y. Civ. Prac. L. and R. N.E.2d 547 (N.Y. 2010). § 1601 (1986); Cole v. Mandell Food Stores, 710 N.E.2d 244 A partial settlement extinguishes the right to contribution for (N.Y. 1999). Intentional acts, collusion and recklessness always and from the settling tortfeasor. N.Y. Gen. Obl. L. § 15-108 trigger joint and several liability. N.Y. Civ. Prac. L. and R. § (1972); Glaser v. M. Fortunoff of Westbury Corp., 524 N.E.2d 1602 (1986); Chianese v. Meier, 774 N.E.2d 722 (N.Y. 2002). A 413 (N.Y. 1988). In case of such a partial settlement, the host of other exceptions also exist that are intended to yield remaining defendants are entitled to a setoff of the total to the rules of substantive areas of law, including Labor Law damages by the greater of the pro rata or the pro tanto and Business Corporation Law. N.Y. Civ. Prac. L. and R. § 1602 approach. Pollicina v. Misericordia Hospital, 624 N.E.2d 974 (1986); In re Seagroatt Floral Co., 583 N.E.2d 287 (N.Y. 1991). (N.Y. 1993). Where a tortfeasor has paid more than its proportionate share, it is entitled to contribution. N.Y. Civ. Prac. L. and R. § 1401 (1986); Sommer v. Fed. Signal Corp., 593 N.E.2d 1365 (N.Y. 1992).

North Carolina Pure Joint and Several Liability

North Carolina follows the rule of joint and several liability. In case of a partial settlement, the non-settling defendants’ N.C. Stat. § 1B-2 (1967); Yates v. New South Pizza, 330 N.C. liability is reduced by the settlement amount. N.C. Stat. § 1B-4 790 (N.C. 1992). Defendants paying more than their share of (1967); Brown v. Flowe, 507 S.E.2d 894 (N.C. 1998). the plaintiff’s loss are entitled to contribution unless they have committed an intentional tort. N.C. Stat. § 1B-2 (1967); Teachy v. Coble Dairies, 293 S.E.2d 182 (N.C. 1982).

North Carolina generally follows the rules of pure : if the plaintiff’s failure to use ordinary care was a of his injury, he may not recover. Champs Convenience Stores. v. United Chemical, 406 S.E.2d 856 (N.C. 1991). The exception to this rule lies in cases involving willful or wanton conduct by the defendants or where the defendants had the “” to avoid the plaintiff’s injury. VanCamp v. Burgner, 402 S.E.2d 375 (N.C. 1991).

20 Joint and Several Liability

North Dakota Variable Liability

North Dakota has abolished joint and several liability for almost Negligence by the plaintiff is a bar to recovery only if it all cases. N.D. Code § 32-03.2-02 (1987); Kavadas v. Lorenzen, exceeds the fault of others but even where it does not, his 448 N.W.2d 219 (N.D. 1989). The exceptions to this rule are for recovery is reduced by the degree of his own fault. N.D. Code cases where the defendants act in concert with one another or § 32-03.2-02 (1987); M.M. v. Fargo Public School District No. 1, otherwise aid or ratify the tort. N.D. Code § 32-03.2-02 (1987); 815 N.W2d 273 (N.D. 2012). Target Stores v. Automated Maintenance Services, 492 N.W.2d In case of a partial settlement, the settling tortfeasors’ pro rata 899 (N.D. 1992). share is deducted from the damages for which the non-settling Contribution among the defendants may only be had if there is defendants are liable. N.D. Code § 32-35-04 (1987); Hoerr joint and several liability. N.D. Code § 32-03.2-02 (1987); Pierce v. Northfield Foundry & Machine Co., 376 N.W.2d 323 v. Shannon, 607 N.W.2d 878 (N.D. 2000). (N.D. 1985).

Ohio Hybrid and Variable Liability

An Ohio defendant who is more than 50 percent liable for A tortfeasor who is jointly and severally liable for damages the plaintiff’s loss is jointly and severally liable for economic and has paid more than its proportionate share is entitled to damages. Ohio Code § 2307.22 (2003); Gurry v. C.P., 972 N.E. contribution. Ohio Code § 2307.25 (2003); Hoffman v. Fraser, 154, (Oh. 2012). Defendants liable for intentional torts are also __ N.E.2d ___, 2011 Ohio 2200 (Oh. Ct. App., Geauga County jointly and severally liable for the plaintiff’s economic losses. May 6, 2011). Settlement extinguishes the right to contribution Ohio Code § 2307.22 (2003); Romig v. Baker Hi-Way Express, and generally reduces, by the amount of the settlement, the __ N.E. __, 2012 Ohio 321 (Ohio Ct. App., Tuscarawas County plaintiff’s right to recover from the non-settling defendants. Jan. 27, 2012). Several-only liability applies to noneconomic Ohio Code § 2307.28 (2003); Spalla v. Fransen, 936 N.E.2d 559 losses, regardless of the defendants’ percentage of fault or the (Oh. Ct. App. Geauga County July 23, 2010). No setoff may be type of tort. Ohio Code § 2307.22 (2003); Waverly City Sch. had, however, if the defendant is liable for an intentional tort. Dist. v. Triad Architects, __ N.E. __, 2008 Ohio 6917 (Oh. Ct. Ohio Code § 2307.25 (2003); Eysoldt v. Proscan Imaging, __ App., Franklin County Dec. 30, 2008). N.E. __, 2011 Ohio 6740 (Oh. Ct. App., Hamilton County Dec. 28, 2011). If the plaintiff (by his own negligence) is responsible for his injuries to a greater degree than the defendants, then the plaintiff may not recover. Ohio Code § 2315.33 (2003); Crosby v. Radenko, __ N.E. __, 2011 Ohio 4662 (Ohio Ct. App., Montgomery County Sept. 16, 2011). Otherwise, the plaintiff’s recovery is reduced by the amount of his own fault. Ohio Code § 2315.33 (2003); Sauer v. Crews, __ N.E. __, 2011 Ohio 3310 (Ohio Ct. App., Franklin County June 30, 2011).

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Oklahoma Pure Several Liability

Since 2011, Oklahoma’s rule is one of purely several and not After a partial settlement, the settling tortfeasor no longer has joint liability. 23 Okl. Stat. § 15 (2011). A tortfeasor is entitled to any obligation to pay contribution to another and the plaintiff’s contribution only if it paid more than its proportionate share of recovery from the remaining tortfeasors is reduced by the the judgment – which is to say, only if its liability arose prior to settlement amount. 12 Okl .St. § 832 (1979); Hoyt v. Paul R. the recent enactment of pure several liability. 12 Okl .St. § 832 Miller, M.D., Inc., 921 P.2d 350 (Okl. 1996). (1991); Barringer v. Baptist Healthcare, 22 P.3d 695 (Okl. 2001).

The plaintiff’s negligence is not a bar to his recovery. 23 Okl .St. § 13 (1979); Bode v. Clark Equipment Co., 719 P.2d 824 (Okl. 1986). It does, however decrease the amount he is entitled to recover by the portion of his damages for which he is responsible. 23 Okl .St. § 14 (1979); Smith v. Jenkins, 873 P.2d 1044 (Okl. 1994).

Oregon Variable Liability

With an exception for environmental torts, Oregon follows the A partial settlement affects the non-settling tortfeasors’ liability rule of several-only liability though it does allow for reallocation only where there is joint and several liability, in which case of uncollectable judgments. Or. Stat. § 31.610 (1971); Lasley v. a setoff is had from the damages award. Or. Stat. § 31.610 Combined Transportation, 261 P.3d 1215 (Or. 2011). The right (1971); Kerry v. Quicehuatl, 162 P.3d 1033 (Or. Ct. of App. to contribution exists for defendants who pay more than their 2007). proportionate share of the damages. Or. Stat. § 31.800 (1975); Lasley v. Combined Transportation, 261 P.3d 1215 (Or. 2011).

Negligence by the plaintiff diminishes his right to recovery, but it does not bar the action. Or. Stat. § 31.600 (1971); Bjorndal v. Weitman, 184 P.3d 1115 (Or. 2008).

22 Joint and Several Liability

Pennsylvania Variable Liability

Most Pennsylvania cases fall under the several-only liability Unless the plaintiff’s negligence is greater than the defendants’ rule. 42 Pa. Stat. § 7102 (2011); Harris v. Kellogg, Brown & Root fault, it merely diminishes but does not preclude the plaintiff’s Servs., 796 F.Supp.2d 642 (W.D. Pa. 2011). A few exceptions right to recovery. 42 Pa. Stat. § 7102 (2011); Hannon v. Temple exist, however, including for defendants who are more than Univ., 2011 Phila. Ct. Com. Pl. LEXIS 43 (Pa. C.P. Feb. 11, 60 percent at fault as well as intentional and environmental 2011). tortfeasors and for Dram Shop actions. 42 Pa. Stat. § 7102 A partial settlement triggers a pro rata reduction of the (2011); Jacobs v. Glenn O. Hawbaker, Inc., 13 A.3d 1056 (Pa. remaining tortfeasors’ liability. Taylor v. Solberg, 566 Pa. 150 County Ct. 2012). (Pa. 2001). The right to contribution exists for jointly and severally liable defendants but only where their liability is not for an intentional tort. 42 Pa. Stat. § 8324 (1976); Toll Bros. v. Panitch, Schwarze, Jacobs & Nadel, P.C., 2011 Pa. Dist. & Cnty. Dec. LEXIS 381 (Pa. County Ct. March 2, 2011). This right is extinguished by settlement. 42 Pa. Stat. § 8324 (1976); Baker v. AC&S, Inc., 562 Pa. 290 (Pa. 2000).

Rhode Island Pure Joint & Several Liability

Rhode Island tortfeasors are jointly and severally liable. R. I. A partial settlement reduces the non-settling defendants’ Gen. Laws § 10-6-2 (1956); Graff v. Motta, 695 A.2d 486 (R.I. liability by the settlement amount. R.I. Gen. Laws § 10-6-7 1997). There is a right to contribution among tortfeasors for (2006); Shepardson v. Consolidated Med. Equip., 714 A.2d a defendant who paid more than its proportionate share. R. I. 1181 (R.I. 1998). Gen. Laws § 10-6-3 (1956); Hawkins v. Gadoury, 713 A.2d 799 (R.I. 1998). The right to contribution ceases with a settlement. R.I. Gen. Laws § 10-6-5 (1956); Calise v. Hidden Valley Condominium Ass’n, 773 A.2d 834 (R.I. 2001).

Rhode Island is a comparative negligence state, so the negligence of the plaintiff is weighed against his right to recover. R.I. Gen. Laws § 9-20-4 (1971); Najarian v. Nat’l Amusements, 768 A.2d 1253 (R.I. 2001).

23 50-state survey

South Carolina Variable Liability

A defendant who is less than 50 percent at fault faces several- In case of a partial settlement, the right to contribution is only liability in South Carolina, provided that its conduct was extinguished and the damages payable by the non-settling not willful and that it did not involve illegal drugs or alcohol. defendants is reduced by the amount of the settlement. S.C. S.C. Code § 15-38-15 (2005); Branham v. Ford Motor Co., Code § 15-38-50 (1988); Simmons v. Greenville Hosp., 586 701 S.E.2d 5 (S.C. 2010). All other defendants are jointly and S.E.2d 569 (S.C. 2003). severally liable and have a right to contribution when they pay more than their proportionate share provided that they did not commit an intentional tort. S.C. Code § 15-38-20 (1998); First Gen. Servs. v. Miller, 445 S.E.2d 446 (S.C. 1994).

South Carolina offsets the plaintiff’s award by the degree of his own negligence. Berberich v. Jack, 709 S.E.2d 607 (S.C. 2011).

South Dakota Variable Liability

In South Dakota, defendants 50 percent or more at fault are, A plaintiff’s negligence does not bar recovery provided that it without limitation, jointly and severally liable for the plaintiff’s was “slight.” S.D. Codified Laws § 20-9-2 (1998); Harmon v. damages. S.D. Codified Laws § 15-8-11 (2005); Centrol, Inc. Washburn, 751 N.W.2d 297 (S.D. 2008). Whether the plaintiff’s v. Morrow, 489 N.W.2d 890 (S.D. 1992). Defendants who are fault is “slight” is determined on a case-by-case basis and less than 50 percent at fault are still jointly and severally liable, not by assignment of a specific percentage of liability. S.D. but there is a cap on their liability for no more than twice their Codified Laws § 20-9-2 (1998); Schmidt v. Royer, 574 N.W.2d proportionate share of fault. S.D. Codified Laws § 15-8-15.1 618 (S.D. 1998). Where the plaintiff’s action is not barred by (1987); Landstrom v. Shaver, 550 N.W.2d 699 (S.D. 1996). excessive negligence on his part, his recovery is reduced by the proportion of his negligence. S.D. Codified Laws § 20-9-2 Joint tortfeasors have a right to contribution should they pay (1998); Steffen v. Schwan’s Sales, 713 N.W.2d 614 (S.D. 2006). more than their proportionate share of the plaintiff’s damages. S.D. Codified Laws § 15-8-12 (1960); Freeman v. Berg, 482 A partial settlement reduces by its amount what the plaintiff N.W.2d 32, 34 (S.D. 1992). may recover from the non-settling tortfeasors. S.D. Codified Laws § 15-8-17 (1960); Fix v. First State Bank, 807 N.W.2d 612 (S.D. 2011).

24 Joint and Several Liability

Tennessee Variable Liability

In most cases, Tennessee defendants are liable severally, not The plaintiff’s fault does not bar his recovery, but it does jointly. Banks v. Elks Club Pride of Tenn. 1102, 301 S.W.3d proportionately reduce his entitlement to damages. McIntyre v. 214 (Tenn. 2010). Exceptions in which joint and several liability Balentine, 833 S.W.2d 52 (Tenn. 1992). remains the rule are for products liability cases and for cases In case of a settlement with some but not all tortfeasors, the where the defendants act in concert. Limbaugh v. Coffee Med. plaintiff’s recovery from the non-settling defendants is reduced Ctr., 59 S.W.3d 73 (Tenn. 2001). by the amount of the settlement. Tenn. Code § 29-11-105 Where the rule of joint and several liability applies, tortfeasors (1968); Tutton v. Patterson, 714 S.W.2d 268 (Tenn. 1986). are entitled to contribution when they pay more than their proportionate share, if they did not commit an intentional tort. Tenn. Code § 29-11-102 (1999); GE v. Process Control Co., 969 S.W.2d 914 (Tenn. 1998).

Texas Variable Liability

Texas defendants who are more than 50 percent at fault If some defendants settle, the plaintiff’s damages recoverable and those who act with intent to harm, regardless of their from the remaining defendants are generally reduced by the proportionate share, are jointly and severally liable in tort. amount of the settlement. Tex. Civ. Prac. § 33.012 (2005); Tex. Civ. Prac. § 33.013 (2003); Sharyland Water Supply Corp. Battaglia v. Alexander, 177 S.W.3d 893 (Tex. 2005). If the v. City of Alton, 354 S.W.3d 407 (Tex. 2011). A jointly and case involves a health care claim, the non-settling defendant’s severally liable defendant that pays more than its proportionate liability is reduced either by the amount of the settlement or share does have a right to contribution. Tex. Civ. Prac. § 33.015 the pro rata share of the discontinued party – defendant’s (1995); C & H Nationwide v. Thompson, 903 S.W.2d 315 choice. Tex. Civ. Prac. § 33.012 (2005). (Tex. 1994).

A comparatively negligent plaintiff, whose fault is not greater than 50 percent, may recover his damages less the portion attributed to his own fault. Tex. Civ. Prac. § 33.001 (1995); Tex. Civ. Prac. § 33.012 (2005); Del Lago Partners v. Smith, 307 S.W.3d 762 (Tex. 2010).

25 50-state survey

Utah Pure Several Liability

Utah defendants are always severally, and not jointly, liable. Utah adopted a modified version of comparative negligence: Ut. Code § 78B-5-818 (1986); Egbert v. Nissan Motor Co., the plaintiff may recover, less the portion of his damages 228 P.3d 737 (Utah 2010). Utah provides for the reallocation attributable to him, if the defendants are at greater fault than of the portion of fault of those who are immune from suit, the plaintiff. Ut. Code § 78B-5-818 (1986). provided that the fault of the non-parties is less than 40 A partial settlement does not affect the non-settling tortfeasors, percent. Therefore, a defendant may still pay more than its unless the settling parties agree otherwise. Bodell Construction proportionate share of liability. Ut. Code § 78B-5-819 (1986). v. Robbins, 215 P.3d 933 (Utah 2009). Additionally, there is no right to contribution. Ut. Code § 78B-5-820 (1986).

Vermont Variable Liability

In Vermont, defendants are severally, and not jointly, liable only There is no right to contribution among Vermont defendants, where the plaintiff is also at fault. Vt. Stat. § 1036 (1980); Levine even for those who pay more than their proportionate share v. Wyeth, 944 A.2d 179 (Vt. 2006). Under such circumstances, of the plaintiff’s damages. Howard v. Spafford, 321 A.2d 74 the negligent plaintiff may recover for the portion of his loss (Vt. 1974). that is not attributable to him, provided that his fault is less If the plaintiff settles with some but not all defendants, then the than the defendants’ taken together. Vt. Stat. § 1036 (1980); amount of the settlement is deducted from the total damages Smedberg v. Detlef’s Custodial Serv., 940 A.2d 674 (Vt. 2007). award. Slayton v. Ford Motor Co., 435 A.2d 946 (Vt. 1981).

Virginia Pure Joint & Several Liability

Tortfeasors face joint and several liability in Virginia. Va. Code Where some but not all defendants settle with the plaintiff, § 8.01-443 (1977); Cox v. Geary, 624 S.E.2d 16 (Va. 2006). They the settling defendants are no longer subject to a claim do have a right to contribution provided their liability arises for contribution and the non-settling defendants’ liability is from negligence (not from an intentional tort) and provided reduced by the amount of the settlement. Va. Code § 8.01- that it does not involve an act of moral turpitude. Va. Code § 35.1. (1983); Downer v. CSX Transportation, 507 S.E.2d 612 8.01-34 (1977); Sullivan v. Robertson Drug Co., 639 S.E.2d 250 (Va. 1998). (Va. 2007).

Virginia follows the rule of contributory negligence: if the plaintiff contributed to his own loss to any degree, then he is barred from recovery. Norfolk & W. R. Co. v. Sonney, 374 S.E.2d 71 (Va. 1988).

26 Joint and Several Liability

Washington Variable Liability

Washington state defendants are jointly and severally liable in If the plaintiff settles with some but not all parties, the settling cases where the plaintiff does not bear any of the fault, in cases defendants are no longer subject to any claim for contribution. where the defendants act in concert, where vicarious liability Wash. Code § 4.22.070 (1987); Wash. State Physicians Ins. applies, and in cases involving hazardous waste disposal, Exch. v. Fisons Corp., 858 P.2d 1054 (Wash. 1993). The asbestos and with contract. Wash. Code plaintiff’s entitlement to a recovery from the remaining § 4.22.070 (1986); Kottler v. State, 963 P.2d 834 (Wash. 1998). defendants is reduced by the amount of the settlement only If none of these exceptions apply, the defendants’ liability is if the settlement is reached after judgment or if the settling several only. Wash. Code § 4.22.070 (1986); Washburn v. Beatt defendants are liable under a vicarious liability theory. Wash. Equipment Co., 840 P.2d 860 (Wash. 1992). Code § 4.22.070 (1987); Washburn v. Beatt Equipment Co., 840 P.2d 860 (Wash. 1992). If joint and several liability applies, the defendants have the right to seek contribution from one another. Wash. Code § 4.22.050 (1981); Wash. Code § 4.22.070 (1986); Mazon v. Krafchick, 144 P.3d 1168 (Wash. 2006).

In a case where the plaintiff contributes to his own damages, his actions are allocated their own percentage share – for which the defendants are not liable. Wash. Code § 4.22.070 (1986); Hiner v. Bridgestone/Firestone, Inc., 978 P.2d 505 (Wash. 1999).

West Virginia Variable Liability

West Virginia defendants are largely jointly and severally liable. The right of contribution exists in favor of defendants who pay W.V. Code § 55-7-24 (2005). There is a limited exception under more than their share of liability. W.V. Code § 55-7-13 (1923); which several-only liability applies for defendants who are Rowe v. Sisters of the Pallottine Missionary Soc’y, 560 S.E.2d less than 30 percent at fault, did not act in concert with others 491 (W.V. 2001). and are not liable for an intentional or an environmental tort The plaintiff may not recover for the portion of his damages or in products liability. W.V. Code § 55-7-24 (2005). Provisions that are his own fault. Bradley v. Appalachian Power Co., 256 limiting several liability exist for cases involving political S.E.2d 879 (W.V. 1979). subdivision defendants and for medical malpractice claims. W.V. Code § 55-7B-9 (2003); W.V. Code § 29-12A-7 (1986); In case of a partial settlement, the settlement amount is Strahin v. Cleavenger, 603 S.E.2d 197 (W.V. 2004). Additionally, reduced from the total judgment only where there has been no uncollectable portions of the plaintiff’s damages award may be apportionment of liability between the settling and non-settling reallocated to other defendants who are 10 percent or more defendants. Johnson v. General Motors Corp., 438 S.E.2d 28 at fault provided their fault is greater than the plaintiff’s. W.V. (W.V. 1993). Code § 55-7-24 (2005).

27 50-state survey

Wisconsin Variable Liability

Defendants who are 51 percent or more at fault and all A Wisconsin plaintiff’s negligence defeats his entitlement those who acted in a concerted way that led to the plaintiff’s to recovery only if it exceeds the defendant’s share of the damages are liable jointly and severally. Wis. Stat. § 895.045 fault. When it does not, the damages award is reduced by (1995); Richards v. Badger Mut. Ins., 749 N.W.2d 581 (Wis. the portion that correlates to the plaintiff’s share. Wis. Stat. § 2008). Other defendants’ liability is several only where the 895.045 (1995); Matthies v. Positive Safety Mfg., 628 N.W.2d case is one of strict products liability. Wis. Stat. § 895.045 842 (Wis. 2001). (1995); Fuchsgruber v. Custom Accessories, 628 N.W.2d 833 A partial settlement results in a reduction of the plaintiff’s (Wis. 2001). damages award (recoverable from the remaining defendants) If a defendant pays more than its proportionate share, it by the settling defendants’ pro rata share. Brandner v. Allstate is entitled to recover from codefendants in contribution. Ins. Co., 512 N.W.2d 753 (Wis. 1994). Wisconsin Natural Gas Co. v. Ford, Bacon & Davis Construction, 291 N.W.2d 825 (Wis. 1980).

Wyoming Pure Several Liability

Wyoming follows the rule of pure several liability. Wyo. Stat. If the plaintiff settles with some but not all parties, the § 1-1-109 (1986); Pinnacle Bank v. Villa, 100 P.3d 1287 (Wyo. remaining, non-settling defendants remain liable for their 2004). Since tortfeasors pay only their proportionate share percentage of the plaintiff’s damages, irrespective of the of the judgment, there is no right to contribution. Anderson settlement. Haderlie v. Sondgeroth, 866 P.2d 703 (Wyo. 1993). Highway Signs & Supply, v. Close, 6 P.3d 123 (Wyo. 2000).

In Wyoming, a negligent plaintiff is not barred from recovery, but his damages will be reduced by the portion of his own fault, as long as his portion of fault is at most 59 percent. Wyo. Stat. § 1-1-109 (1986); Parrish v. Groathouse Construction, 130 P.3d 502 (Wyo. 2006).

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