Phantom Parties and Other Practical Problems with the Attempted Abolition of Joint and Several Liability

69 Pages Posted: 7 Jan 2008 Last revised: 5 Dec 2013

See all articles by Nancy C. Marcus

Nancy C. Marcus

California Western School of Law

Abstract

In recent years, the allocation of responsibility to multiple tortfeasors and corresponding limitations on joint and several liability have been mired with uncertainty and change. This article describes the various forms of tort reform legislation limiting joint and several liability, explaining that some states limit joint and several liability according to the proportionality of the plaintiff's comparative fault, explaining that there is no clear majority approach to joint and several liability legislation and its interpretation by the courts, that a number of states have resisted the trend toward modifying joint and several liability, and that no state has enacted legislation completely abolishing joint and several liability for all tort claims.

In addition to revealing that no state has abolished joint and several liability entirely, this article further illustrates that the underlying policy objectives of those seeking to abolish joint and several liability have not been effectuated either. The modern changes to joint and several liability have sparked polarized policy debates between two groups. One group believes that the abolition of joint and several liability is necessary to prevent joint tortfeasors from disproportionately paying damages which were also caused by other defendants (or to prevent plaintiffs from strategically targeting deep pocketed defendants). A second group believes joint and several liability should be preserved to ensure full damage recovery for tort victims and prevent tort victims from having to bear the burden of damages done to them.

This article looks beyond the usual policy debates surrounding joint and several liability abolition legislation, examining more closely the practical problems courts have confronted while interpreting and implementing such legislation. I conclude that the policy interests of neither side of the debate have been served by such abolition attempts, which have created more problems than solved.

In particular, I contend that legislative attempts to abolish joint and several liability have perpetuated and worsened the problem of unfair and inaccurate damage assessments that the legislation was intended to remedy. Both pure and modified proportional fault allocation systems intended to replace joint and several liability have created complex and daunting obstacles for courts and litigants. Such hurdles include phantom party problems, conflicts of law, inaccurate allocation of damages, and substantial inequities which harm both plaintiffs and defendants. I propose a reinstatement of pure joint and several liability with contribution as the most equitable, viable, and practical approach to multiple tortfeasor damage allocation.

Keywords: tort, joint and several liability, comparative negligence, contributory negligence, allocation of fault, apportionment, phantom parties, tort reform, legislation

Suggested Citation

Marcus, Nancy C., Phantom Parties and Other Practical Problems with the Attempted Abolition of Joint and Several Liability. Arkansas Law Review, Vol. 60, No. 2, 2007, Available at SSRN: https://ssrn.com/abstract=1081022

Nancy C. Marcus (Contact Author)

California Western School of Law ( email )

225 Cedar Street
San Diego, CA 92101
United States

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