• Personal Injuries: Who is at fault and who pays?

    Personal Injuries: Who is at fault and who pays?

    In any lawsuit for personal injury it is critical to establish the defendant’s conduct as the cause of the injury. This determination can be especially difficult where there are multiple potentially culpable parties. To aid in the apportionment of fault amongst multiple defendants the law has developed the doctrine of joint and several liability. This doctrine allows a plaintiff to recover against any and all of the parties who have credibly contributed to an indivisible injury. The circumstances that give rise to joint and several liability can be broken down into two four rough rules, and are expanded on below. Joint and several liability is an old doctrine and is still used in a variety of circumstances, but some jurisdictions have curbed its use.

    The doctrine of joint and several liability is based in the idea that a plaintiff should be able to recover for their injuries against any responsible party. This doctrine is applied according to four general rules. First, fault and damages are apportioned amongst defendants whenever possible. If the harms caused by two or more defendants are separable then they are each only liable for the harms they caused. For example, lets say you take two medications, one made by X and the other made by Y, and sadly X’s drug causes liver failure and Y’s drug causes seizures. Under apportionment X is only liable for the harms flowing from the liver failure, while Y is only liable for the harms flowing from the seizures.

    Second, when an injury is indivisible the defendants are jointly and severally liable for the damages flowing from the injury. Indivisible injuries are singular harms that generally cannot be broken down into smaller or separable injuries. Examples of individual injuries include a broken leg, death, or a particular medical condition.

    Third, even if an injury is not indivisible, defendants are jointly and severally liable if they acted in concert or are vicariously liable for the harm. Defendants are said to be in concert when they act in pursuance of a common plan or design to commit a tortious act. There are four broad instances where concert liability is applied:

    1) Actively taking part in the tortious conduct, or
    2) Furthering the conduct by cooperation or request, or
    3) Lending aid and encouragement to the wrongdoers, or
    4) By ratification and adoption of acts done for their benefit

    An example of concerted action might be two drivers engaged in drag racing on a public road. Even if only one of the drivers actually caused an accident both may be held liable for their concerted conduct in creating a risky situation.

    Vicarious liability is similar to acting in concert, but it implies a special relationship between the parties. An actor is vicariously liable where they do not actually cause the harm, but due to their relationship with the bad actor they are tortfeasors nonetheless. These relationships are usually marked by either an express or implied engagement of conduct (such as a contractual relationship implying agency), or if one party exercises a certain degree of control over the party that actually commits the act causing the plaintiff’s harm.

    Fourth, joint and several liability allows a plaintiff to collect the entire judgment from any liable party. Any defendant whose conduct was a proximate cause of the harm is liable for the entire judgment, but a plaintiff may never collect more than 100% of the amount rewarded. In other words, if you suffer $100,000 in damages from an indivisible injury caused by N and R you can collect up to the entire amount from either defendant, but you may not collect more than $100,000 in total. If a defendant party ends up paying more than their fair share, they may sue the other defendants for indemnification or contribution.

    There are a couple of common circumstances where multiple defendants can be implicated for a plaintiff’s injury. The first common instance is where an employee or agent of a business entity has caused the harm. Under the doctrine of respondeat superior when an employee acting in the course of their employment causes a plaintiff’s injury the employer is vicariously liable for the harm. This doctrine allows a plaintiff to sue both the individual employee and the business entity.

    The second common instance of multiple defendants is in suits for products liability. Products liability claims are diverse and often complex in nature, but they all share the common feature of imposing liability on the chain of commerce. Every member of the chain of parties that brought the product to the market is jointly and severally liable for the harm– from the retailer all the way up to the manufacturers of the individual components. This is an instance where the defendants could be said to be acting in concert.

    Joint and several liability can impose a large burden on defendants who are minimally responsible for a plaintiff’s injuries, so many jurisdictions have curtailed its use in certain circumstances. A famous example of this are the many statutes that bar the use of joint and several liability against asbestos manufacturers. The reasons for doing this are varied and complex, but the bankrupting of the whole industry (thus leaving no relief funds for later claimants) has been commonly cited as a chief reason. In other instances of abandoning joint and several liability some jurisdictions have opted for a pure apportionment system. Under these systems a defendant never has to pay more than their fair share of a harm. If an actor is only 10% responsible for the injury then they are only responsible for 10% of the verdict. While this is good for defendants, it can leave a plaintiff without satisfactory relief if the party who actually caused most of the injury has no or very little money, like in a suit against an employee & their employer.
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