Friday, February 14, 2003

Michelle Dulak asks about joint and several liability. This doctrine is usually applicable in states that still retain the concept of contributory negligence. In contributory negligence jurisdictions, a plaintiff who is even 1% at fault in an accident situation recovers zero. Joint and several liability is kind of like the other side of the coin; where a defendant has even 1% of fault, that defendant is 100% at fault. In contrib jurisdictions, you see these 2 complementary public policy considerations at work. If defendants can show plaintiff at all at fault, plaintiff gets nothing; at the same time, if plaintiff can prove any fault by any defendant, plaintiff recovers all from any one defendant, or from all the defendants. Contrib, and joint and several liability, are on the way out.

Most states have adopted some form of comparative fault, which generally holds that each party bears his own percentage of fault. Thus, if plaintiff is 10% at fault, the gross verdict is reduced by 10%. Most comparative fault states have at the same time done away with joint and several liability. Thus, a defendant adjuged 35% at fault would only be on the hook for 35% of the verdict.

In Tennessee, the abolition of the doctrine has gone too far, in my opnion as well as the Chief Justice's. In the 2000 Carroll case, the Tennessee Supreme Court held that fault can be allocated against even a party immune from suit. Thus, if a defendant can get a jury to agree that, say, the state [which has sovereign immunity as to many tort actions] is to some degree at fault, then the net verdict to the plaintiff is reduced by that degree of fault allocated to an immune non-party. The policy consideration here is that, instead of making a partially at fault defendant pay the judgment, the plaintiff must bear the brunt of not even having a cause of action against the immune party.

Michelle also poses a question, I guess, about coverage and liability:

OK, two cases: (1) child on one-rope swing set up by Dad in own backyard -- rope breaks where attached to tree limb, child falls off and breaks clavicle. (2) ditto in public park, except that there it would be a rusty chain or something, not a rope. Anyway, support breaks, child breaks clavicle.

There might be negligence in either case. There might be *no* negligence in either case, just random failure. But what is certain is that the kid injured in the public park has a shot at damages in the mid-5 figures, and the kid injured in the backyard has no shot at anything. Unless they figure out how to sue the manufacturer of the rope.

To put it another way: You quoted at length an email from a juror in a trial about a broken ankle. If I break an ankle coming down the outside stairs of my apartment building, because a light is out, I might recover damages if I sued. If I did the same walking down the steps between levels of this apartment, because my roommate hadn't replaced a lightbulb as he said he would, I don't think I'd recover squat. But the ankle's just as broken, yes?

In the swing example, you can still make a claim, daughter versus daddy, if daddy negligently maintained the swing. Now, homeowners coverage normally excludes from coverage residents of the covered household, but daughter can still theoretically sue dad and recover, just with no payment by the carrier.

Same thing with the fall down the stairs. In a common area, by contract, the landlord is responsible for reasonable maintenance and upkeep. Not wthin the leased premises, however. You could sue the roommate, but renter's coverage will probably exclude her from coverage.

In both cases, you can still prove liability and get a judgment, but in both cases, because of the normal insurance policy language, there will be no coverage.

Finally, why does Michelle think $45,000 is too much for a broken ankle? Remember, out of the gross recovery comes medical expenses, which could be $10,000 or more, expenses of litigation, which could be another couple of thousand or more, and the attorney's fee, which is probably in the neighborhood of $15,000. And before you start moaning about the fee, keep in mind who's taking all the risk: the lawyer who is spending thousands of dollars and maybe 2 years of her time to try to effect a recovery. So, if you assume the previous numbers, the net recovery out of the gross of $45,000 is about $18,000. Low enough for you?

No comments: