As predicted in my last two columns, the Maryland General Assembly will not resolve the debate over whether to replace the defense of “contributory negligence” with a “comparative fault” system and with it whether to abolish or modify “joint and several liability” this year. Indeed, as I write this column, the House Bill has been “withdrawn” and the Senate Bill is hanging precariously in the Judicial Proceedings Committee its prospects assessed at zero because of the informal rule that the House will not consider a Senate Bill which is the same as a House Bill already defeated or withdrawn from consideration. So where do we go from here? How about “Summer Study”.
No, “Summer Study” is not for legislators who need remedial work in legislating. It is instead a useful look and time spent looking at a public policy issue which has some degree of complexity to it and which can’t be reduced to legislation without resolving important policy issues which affect a large portion of our citizenry in different and at times conflicting ways.
In this instance, these issues primarily deal with the questions of when a state moves from a “contributory negligence” system to a comparative negligence” approach- does it retain, modify, or abolish “joint and several” liability?
Eric S. Namrow reports that the four states that have refused to modify their “contributory negligence” systems, including Maryland, all retain “pure” joint and several liability. Of the forty-six states with some form of comparative fault, ten states still have a “pure” form of joint and several liability, while twelve states have “pure” several liability. The remaining twenty-four states have some blend of joint and several liability.
It is those twenty-four states which Maryland would examine to determine if it wishes to “balance” or “complement” any change from contributory negligence to “comparative” fault with a modification of our state’s approach to joint and several liability.
Several states such as Utah have simply abolished the rule of joint several liability by the same legislation that enacted comparative fault declaring by statute that “The maximum amount for which a defendant may be liable to any person seeking recovery is that percentage or proportion of the damages equivalent to the proportion of fault attributed to that defendant. No defendant is entitled to contribution from any other person”.
Kansas did the same thing except in that state their highest court, the Kansas Supreme Court, held that the comparative negligence statutes passed by the Kansas legislature had the ancillary affect of abolishing the doctrine of joint and several liability, a result clearly not anticipated or even contemplated by the Kansas legislature when it enacted comparative negligence. No wonder a well known Plaintiff’s lawyer in Baltimore whose clients benefited substantially from Maryland’s joint and several liability common law successfully lobbied to kill the comparative negligence bill which carried with it the accompanying risk of a subsequent similar judicial interpretations.
Other states have enacted statutes along with their comparative fault statutes to limit the scope of joint and several liability in lieu of retaining it in its “pure” form or abolishing it by legislative action or judicial fiat. Illinois, for example, automatically imposes joint and several liability on defendants whose fault is twenty-five percent or more of the total fault attributable. There is also a statutory exception to this Rule in “pollution torts” and medical malpractice cases in that state.
Alaska and Iowa have enacted statutes that require a defendant to have a liability of fifty percent or more to be jointly and severally liable.
Still other states have opted to limit the application of joint and several liability to specific types of torts. Arizona law abolishes joint and several liability except if the defendant acted in concert, a throwback to its conceptual origin. The doctrine will also apply to toxic torts and any liability for solid waste disposal. Similarly, Hawaii eliminated joint and several liability for most torts but retained it for cases involving only economic damages for personal injury or death as well as economic and non-economic damages for intentional torts, torts relating to pollution, toxicity, asbestos, aircraft accidents, strict liability and certain automobile accidents.
Finally, California and Texas have each enacted their own “solutions” after becoming comparative fault states. California abolished joint and several liability only for non-economic damages. Texas enacted a statute which specifies exactly what tort areas will have joint and several liability, as well as threshold percentages of liability which must be met before there will be joint and several liability. Texas also provides that the jury must find specifically that the defendant is jointly and severally liable.
These are the laboratory states which Maryland can look to decide what it should do with its system of joint and several liability if it chooses to join the forty-six out of fifty states who have replaced “contributory negligence” with “comparative fault”. The question should be framed to ask which model best promotes the essential aims of comparative negligence. The goal is to ensure that each defendant in an action is liable only in proportion to his share of the total fault. The other, and at times conflicting, goal is to ensure full compensation for injured plaintiffs. That is a plaintiff’s recovery may be reduced proportionately if he or she had some responsibility for his or her own injury, but she will not face the harsh contributory negligence consequences of being barred from any recovery if she is somewhat at fault.
Perhaps none of these models are the best model. Eric S. Namrow suggests a completely untried and so far unheralded model which may well be the most equitable method for apportioning financial responsibility in lieu of pure joint and several liability. It is described by Namrow as the “Percentage of a Percentage Approach”. Namrow illustrates the “Percentage of a Percentage Approach” by an example. That example is as follows:
Plaintiff is 5% at fault, Defendant A is 45% at fault, and Defendant B is 50% at fault. Furthermore, Defendant B turns out to be judgment-proof. Under existing joint and several liability, the Plaintiff would be able to recover all 95% of her damages from Defendant A. This result seems patently unfair to Defendant A. Alternatively, under pure several liability, Plaintiff would only be able to recover 45% of the damages from Defendant A, and Plaintiff would be forced to absorb 55% of the damages even though she was only 5% at fault.
The percentage of a percentage approach seeks to mollify both of these extremes. In this case, when Defendant B, who is 50% responsible for the injuries, is judgment-proof, his share of liability is reallocated among all of the remaining parties according to their respective proportion of fault. That is, the Plaintiff will have to absorb 5% of the insolvent Defendant’s liability while Defendant A will have to shoulder 45% of Defendant B’s unattainable responsibility. In this example, when Defendant B is insolvent, Plaintiff will have to pay 15% while Defendant A will have to pay 85% of the damages. In this way, the damages paid by each party will be proportionate to their respective share of liability. In short, the percentage of a percentage approach makes logical sense both on equitable and moral grounds. The Plaintiff will receive a reasonable level of compensation, albeit reduced by the fact that Defendant B was unable to satisfy the judgment. Conversely, Defendant A will be forced to contribute above his proportion of fault, but he avoids the danger of having to pay for all of a plaintiff’s injuries.
Should our legislators study the “Percentage of a Percentage” theory as well as a survey of 24 different state’s approaches to comparative negligence and joint and several liability for “Summer Study”? I think so. Why not? And if they study hard and do their homework, they can come back in 2008 better informed and willing to make a decision about what is fair and what isn’t and how risk in the state of Maryland should be allocated.