Milwaukee Journal-Sentinel: Injured parties deserve justice

by Mark Thomsen
March 10, 2009

Patrick McIlheran's column of March 5, "Doyle leading state back to judicial hell," provides a good example of joint and several liability: When a group of kids breaks a window playing ball, but only one doesn't flee the scene and gets caught, who should pay to repair the window?

Apparently, Mr. McIlheran thinks it is unfair that only one kid would pay. Yet what about Mr. Grumpquist, whose window is broken? Would it be fair that he got only one-ninth of that amount? Should he be the one having to go and find the other ballplayers and make them pay?

Mr. McIlheran thinks it's OK for Mr. Grumpquist to pay to fix the window, even though he is completely innocent of causing the harm. Under joint and several liability, even if only one kid were left holding the bat, he would pay. The kid can get all the ballplayers to pay, but the burden falls on the kid, not Mr. Grumpquist, to find the others at fault and make them contribute. Joint and several liability puts the burden on the wrongdoers, so the innocent injured person doesn't have to bear the loss.

Joint and several liability ensures that if two or more entities combine to cause an injury, both are responsible for the full damages. If there are more than two defendants, neither defendant can be "50% negligent" or "50% responsible." Such statements make as much sense as saying someone is "50% pregnant." Nor would either defendant's negligence cause only 50% of the plaintiff's injury.

Rather, juries must find each defendant negligent in causing the injury. Once that finding is made, each defendant is 100% responsible for the entire injury. Only then is the jury asked to compare each defendant's conduct with one another, and percentages of fault are determined.

Given the decisions juries are asked to make, it is only fair to tell juries what the effect of their verdicts will be. Juries are told about the law affecting each case. We trust the jury to take the law and apply the facts to it to achieve justice. Wisconsin and Texas are the only two states with a similar comparative negligence system that refuse to explain to juries the effects of their answers.

Because of this, jurors sometimes are disillusioned and disappointed to learn decisions they made caused an opposite result of what they intended, because they've been kept in the dark about the law. Most states use the common-sense approach to let jurors know what the result of their decision will be, just as we all want to know how everyday decisions affect our own families.

I have had the honor to represent a worker permanently injured as a result of the absolutely avoidable explosion at the Falk Corp. plant in Milwaukee in December 2006. Here, two corporate entities who were in charge of maintaining a liquid propane pipeline chose to disregard federal standards and failed to protect and pressure test the pipe.

Due to no fault of their own, three workers were killed, and dozens of workers and their families were left devastated. Without joint and several liability, these innocent families will never be fully compensated for their loss. They bear the burden of the loss caused by these negligent corporations.

The provisions in the state budget make sure that those responsible for causing an injury will be held accountable. Innocent injured people and their health insurers or the government shouldn't be left with piles of unpaid medical bills. The provisions in the budget are reasonable and fair. They are designed to help real people with real injuries.

Mark Thomsen is president of the Wisconsin Association for Justice, a trial lawyers group.

Our sponsors