Pennsylvania enacted legislation in 2002 that abolishes joint and several liability for most personal injury defendants who are liable for less than sixty percent of the dollar amount of damages awarded to an injured party. Instead, such defendants will only be liable for the percentage of the harm for which they are determined to be responsible. In so doing, Pennsylvania has joined the majority of states that have abandoned the principle that each defendant whose negligence contributes to an injured person's injury is liable for the full extent of the injuries.
A. Common Law
At common law, if an injury was indivisible in nature, each wrongdoer who contributed to that injury was liable for the entire judgment, although the injured party was not permitted to collect more than one full recovery. For example, if a judge or jury concluded that two defendants negligently contributed to a person's injury, and awarded damages in the amount of $100,000, the injured party could elect to collect the entire award from either of the defendants.
A defendant who paid more than a proportional share of the award, however, could then seek contribution from co-defendants. The paying defendant risked paying all or a disproportionate share of a judgment to the extent that co-defendants were unable to contribute. The rationale for the rule was that the risk that a defendant would not be able to pay its fair share of an award should fall on the other negligent defendants, rather than the innocent injured party.
B. Comparative Negligence
Over the course of the last twenty-five years, a majority of states have abandoned or substantially modified this system of joint and several liability. This has often occurred in conjunction with the adoption of comparative negligence rules to replace the doctrine of contributory negligence.
Under contributory negligence, an injured party who is guilty of even slight or trivial negligence is completely barred from recovery even if the defendant or defendants are guilty of serious negligence. Forty-six states, including Pennsylvania, have replaced contributory negligence with a form of comparative negligence.
Under a system of pure comparative negligence, an injured party who is chargeable with his or her own negligence is not barred from recovering damages, but the recovery is reduced in proportion to the injured party's negligence. (In some comparative negligence jurisdictions, however, an injured party remains barred from recovering any damages to the extent his or her negligence exceeds a certain threshold, such as 50 percent.)
With the evolution to comparative negligence, defendants began to argue that joint and several liability was inconsistent with the adoption of comparative fault to the extent it forced one wrongdoer to pay all of an injured party's damages, without regard to the degree of the wrongdoer's culpability. Accordingly, today, a majority of states have also abolished or limited the doctrine of joint and several liability.
Some states have abolished joint and several liability altogether, while others, like Pennsylvania, have limited its applicability to a wrongdoer whose comparative fault is above a certain threshold. Still other jurisdictions have abolished joint and several liability for non- economic damages such as pain and suffering, but have retained it for out-of-pocket expenses, such as medical bills or lost earnings.
Pennsylvania had retained joint and several liability when it originally adopted comparative negligence. Moreover, the legislation that Pennsylvania recently enacted retains joint and several liability for defendants that are found liable for 60 percent or more of the injured party's damages, as well as any defendant held liable for intentional torts, including fraud and certain statutory violations.
Maryland is one of only five jurisdictions that have retained the doctrine of contributory negligence. Maryland also adheres to joint and several liability. Numerous bills have been introduced in the General Assembly over the last twenty years to replace contributory negligence with comparative negligence, but such legislation has always been defeated, as have attempts to alter the system of joint and several liability.