If you live in Pennsylvania, saw the movie “Hot Coffee,” and were wondering how you might be losing your rights without even knowing it, look no further!
Your Governor just signed a law severely limiting the doctrine of "joint and several liability," which had been part of your common law since, well, the beginning of Pennsylvania! The business groups call it the so-called "Fair Share Act," but let's be clear - this is nothing "fair" about this law for you.
The largely-eviscerated doctrine of joint and several liability was a fairness rule, however, developed by courts over centuries to protect everyday people. It comes into play after more than one wrongdoer is found fully or substantially responsible for causing an injury (not 1% or 10% responsible, as is commonly misstated). If one wrongdoer is insolvent or cannot pay their share, the other fully-responsible wrongdoer(s) must pick up the tab, to make sure the innocent victim is fully compensated.
For example, suppose two toxic polluters recklessly contaminate drinking water, causing leukemia in neighborhood children. The actions of any one of them alone would be sufficient to cause leukemia. But because two companies were involved, each one's relative share becomes only one-half. This fortuitous circumstance allows them to split the total compensation owed. Now in Pennsylvania, if one of those two companies becomes insolvent and cannot pay any compensation, tough for you! The law used to be that the other company would have to cover the insolvent company's share. But no more. The polluter is now off the hook even though it was found fully responsible for causing the leukemia. (If you don’t believe me, check out this article by Richard Wright called The Logic and Fairness of Joint and Several Liability).
And here is something else you should know. Joint and several liability is often invoked to help protect crime victims. Let’s say you or someone you love is sexually assaulted and her rapist got into the apartment building because the landlord refused to fix a broken lock. By limiting joint and several liability, as was just done in Pennsylvania, she is prevented from any real recovery since in most violent crime situations, the criminal has little money or few assets.
So, thank you Pennsylvania lawmakers. Polluters and street criminals sure appreciate it.
