Joint and several liability makes only those who are judged responsible pay for damages.
Under our system of justice, all citizens have the power to hold wrongdoers accountable. A principle of our legal system called “joint and several liability” ensures that when you are injured by more than one party those who are found responsible will compensate you for your losses.
This rule puts the burden of allocating damages where it belongs – on the wrongdoers. This sound rule protects all citizens.
What about the so-called one-percent case, where a party that is one percent at fault is stuck paying the whole verdict?
Very few cases involving a personal injury involve using the joint and several rule. The State Bar of Wisconsin conducted a study of joint and several liability personal injury verdicts in the mid-1980s and found that in 98.4% of the verdicts joint and several liability did not apply because there was only one wrongdoer. Only 13 cases of the 834 personal injury verdicts reviewed had joint and several liability apply and the average negligence attributed to the wrongdoer held jointly liable was 35% in those cases. The report found no reported cases where someone was only one or two percent responsible and had to pay for 100% of the injury. It appears to be a diversionary tactic by insurance companies to scare people.
Joint and several liability ensures that wrongdoers, not the innocent injured party, bear the cost of a loss.
In some cases, one wrongdoer may be insolvent, immune or unavailable. Because the doctrine requires the other wrongdoers to cover the cost of the loss, the innocent injured party does not have to bear the loss if a wrongdoer cannot pay. Only those who contributed to the loss must pay. This puts the burden of nonpayment on the other wrongdoers, not the one who has suffered the harm. Otherwise the innocent injured party will suffer twice, once when injured and then when a wrongdoer cannot pay.
In 1995 Wisconsin law was changed to take away the right to use joint and several liability except where one of the wrongdoers is found over 51 percent at fault. Without full joint and several liability an innocent injured person bears the loss when a more negligent party does not pay.
For example, a young woman was seriously injured during a July 4th fireworks show when a shell fired into the crowd. Although the jury found that she suffered substantial life-altering injuries through no fault of her own, the current joint-and-several law allowed her to receive only 2/3 of her damages because the defendants claimed someone else was negligent too. Under the proposed change, she would receive full compensation from those responsible defendants, and the defendants would have the same right to pursue other potentially responsible parties as she had under the law. That burden should not fall on the innocent injured party.
What happens if one of the parties cannot pay and the burden of nonpayment falls on the innocent injured party?
To the extent the innocent injured party cannot recover his or her damages, he or she may be required to resort to government assistance and/or personal health insurance, which has the effect of driving up the cost of health insurance and utilizing scarce government resources.
For example, a passenger in an automobile accident is severely injured by two different drivers, one that was uninsured. The passenger is a child and not at fault. The uninsured driver was the most responsible, but cannot pay. If the child’s significant medical expenses are not covered by the party jointly responsible but less at fault than the other driver, the child’s health insurer – whether a private insurer or the government – will end up paying for the medical expenses caused by both drivers. When the people responsible for causing the loss do not pay, not only does the innocent injured child suffer but also private health insurers or government assistance end up paying. Joint and several liability makes sure the responsible parties pay and the burden does not fall on others.