Efficiency, Fairness, and Common Sense: The Case for One Action as to Percentage of Fault in Comparative Negligence Jurisdictions That Have Abolished or Modified Joint and Several Liability

Authors

John S. Hickman

First Page

739

Abstract

Plaintiffs are the masters of their own actions.' They decide when, where, and whom to sue. Although the law has evolved in ways that limit a plaintiffs procedural choices, plaintiffs enjoy a growing number of situations in which they can recover, and an increase in the number of possible defendants For example, governmental tort liability statutes, while limiting procedural choices, now allow plaintiffs to sue government entities. Modern jurisdictional rules give courts a wider reach and thus enable plaintiffs to reach more defendants in one action. Perhaps most importantly, a plaintiffs own negligence no longer bars recovery in most jurisdictions. The advent of comparative negligence has enabled many more plaintiffs to win judgments.

Another recent development in tort law that has greatly affected plaintiffs and defendants alike is the rejection of joint and several liability. The past decade has seen a marked increase in the number of states that have either abolished or modified the joint liability rule and replaced it with some form of comparative fault. Under a joint liability regime, plaintiffs could sue a single defendant and still obtain a full recovery.' Under comparative fault, however, a plaintiff may have the opportunity to sue defendants in separate, consecutive actions, keeping a defendant in reserve as a hedge against a bad result in the first case." This possibility creates inefficiencies that do not exist in joint liability regimes.

This Note identifies the barriers and disincentives to sue all defendants in one action in a comparative fault jurisdiction, the costs associated with these disincentives, and a possible solution in the form of a one-action rule for systems of comparative negligence with- out joint and several liability. Part II of this Note reviews the developments of the doctrines of comparative negligence and comparative fault and the corresponding demise of contributory negligence and joint liability. In addition, Part II notes the procedural differences in a joint liability regime and one employing comparative fault.

Recommended Citation

John S. Hickman, Efficiency, Fairness, and Common Sense: The Case for One Action as to Percentage of Fault in Comparative Negligence Jurisdictions That Have Abolished or Modified Joint and Several Liability, 48 Vanderbilt Law Review 739 (1995)
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol48/iss3/8