Angst and Marino
Joint and Several Liability: Does it Exist in Tort Cases?
I. SUMMARY
Answer: joint and several liability exists as a mere shell of its former stature with the passage of Am. Sub. S. B. No. 120 (SB 120). Unlike other Tort Regulations passed since 2003, SB 120 applies to all “tort actions”, including wrongful death and product liability. ('2307.011(K)). SB 120 erases over a century of Ohio Jurisprudence by reducing or eliminating joint and several liability and by allocating uncollectible percentages of fault to liable non-parties.
II. JOINT AND SEVERAL LIABILITY LAW
(A) Prior Law
The Ohio Supreme Court, as early as 1880, recognized joint and several liability as Ohio's common law:
- A The general rule undoubtedly is, that where damage is caused by the joint or concurrent wrongful acts of two or more persons, they may be prosecuted therefore jointly or severally.@ Transfer Co. v. Kelly (1880), 38 Ohio St.86, 90.
Under the doctrine of joint and several liability, Plaintiff can collect the entire damage award from any one or all of the joint tortfeasors, but not more.
Ohio's statutory right to contribution or indemnity amongst joint tortfeasors mitigated any perceived injustice. (See repealed ''2307.31-32; Fidelholtz v. Peller (1998), 81 Ohio St.3d 197, at 202.)
Joint and several liability remained Ohio’s law from 1880 until the passage of seldom used O.R.C. §2315.19 (repealed by S.B. 120) which excluded noneconomic damages from joint and several liability, only if the Plaintiff was comparatively negligent.
(B) Present Law- SB 120's Joint and Several Restrictions (''2307.22-23)
SB 120 applies to all tort claims occurring on or after April 9, 2003.
Plaintiff's damages are classified as economic and noneconomic loss. Economic loss is medical bills, expenses, wages, property damage, or other actual expenditures ('2307.011(C)). Noneconomic loss is pain and suffering ('2307.011(F)).
Joint and several liability never exists for noneconomic loss, even in an intentional tort. S.B. 120 protects robbers, murderers, rapists, or any other tortfeasor who commit criminal acts.
Joint and several liability exists only for economic loss when a Defendant is over 50% negligent, except in an Aintentional tort@ [defined in '2307.011(D) to exclude employer intentional torts] ('§2307.22(A)(1) & (3)]. Conversely, no joint and several liability exists for any Defendant whose negligence is 50% or less, except for this intentional tort exception.
(C) Present Law – SB 120’s Liable non-parties
More angst is contained in SB 120! A jury can now attribute a portion of Atortious conduct@ to those delineated as a person from whom the Plaintiff does not seek recovery in this action and includes those who have settled, been dismissed, or who were not a party to the tort action whether or not that person could have been a party, if the name of the person has been disclosed prior to trial ['2307.011(H); '2307.23(A)(2)] Under previous law, a jury could only apportion a percentage of negligence among the parties to a lawsuit. See Eberly v. A.P. Controls, Inc. (1991), 61 Ohio St. 3d 27 and repealed '2315.19.
III. EXAMPLES
With these changes, Plaintiffs play Russian roulette by waiting to file and identify all liable parties.
(A) Negligence claim
T-bone car crash.
Defendant A is negligent driver.
Police issue no citations – Both parties claim green light.
Plaintiff taken from scene by ambulance.
Defendant A is driving B’s car.
Plaintiff treats for two years. Offer is too low.
Plaintiff files against Defendant A and B (negligent entrustment) just before SOL.
Preparing for A’s deposition, you find A was charged with DUI in a separate report.
At deposition, A admits:
- Having several drinks with Defendant B at a bar identified by name.
- B lent A his car so she could get cigarettes.
- Bartender continued to serve A.
TRIAL
Defendant A: 50% Tortious Conduct
Defendant B: 25% Tortious Conduct
Liable non-party (Bar): 25% tortious conduct
Total: 100%
Award: $300,000 ($50,000 economic loss; $250,000 noneconomic loss)
Noneconomic loss Since joint and several liability never exists for noneconomic loss, plaintiff can only recover Defendant A’s individual share of noneconomic loss. $250,000 X .50 = $125,000. Defendant B and the identified liable non-party Bar are each attributed 25% of Plaintiff’s noneconomic loss. $250,000 X .25 = $62,500. Plaintiffs just lost $62,500 attributed to the Bar.
Economic Loss Defendant A is not jointly and severally liable for the economic loss since AA@ is not over 50% negligent. AA@ is only liable for her individual share of the economic loss. $50,000 X .50 = $25,000. Defendant B and the Bar are each attributed 25% of Plaintiff’s economic loss. $50,000 X .25 = $12,500. Plaintiff just lost $12,500 attributed to the Bar.
Maximum Recovery Plaintiff's maximum recovery from A and B is $225,000. Assume B is uncollectible or has no insurance coverage for negligent entrustment or was not sued within SOL. Plaintiff’s maximum recovery is $150,000.
Prior to SB 120, Plaintiff could recover the full $300,000 from “A” or AB@ under joint and several liability.
SB 120 erodes over a century of Ohio jurisprudence by punishing the negligent free Plaintiff and awarding the tortfeasors, who are at fault and caused damage to the under-compensated Plaintiff.
(B) Intentional Tort
Assault
Billy Gates (Defendant A) and his unemployed college friend (Defendant B).
Gates identifies Defendant B by name. B is insolvent.
TRIAL
Defendant A: 10% Intentional Tortious Conduct< br/>
Defendant B: 90% Intentional Tortious Conduct
Total Award: 100%
Award: $300,000 ($500,000.00 economic/$250,000 noneconomic)
Noneconomic Loss Since joint and several never applies to noneconomic loss, even for an intentional tortfeasor, Defendant A is only liable for his individual share of the noneconomic portion. $250,000 X .10 = $25,000.
Economic Loss Since Defendant A is an intentional tortfeasor, he is jointly and severally liable for the entire amount of economic loss, $50,000.
Maximum Recovery The maximum recovery for the Plaintiff against Defendant A is $75,000. SB 120 awards the intentional tortfeasor A with a credit for $225,000; and punishes the negligent free Plaintiff the same amount.
Under SB 80, the maximum punitive damages are two times compensatory or $150,000 unless A acted purposely and knowingly and plead or was found guilty of this type of offense.
IV. COMPARATIVE NEGLIGENCE - CONTRIBUTORY FAULT
(A) Prior Law
SB 120 repealed §2315.19, Ohio's modified comparative negligence statute (SB 120, Section 2.). Under repealed '2315.19, if Plaintiff was 50% or less negligent, Plaintiff could recover full damages less Plaintiff's percentage of negligence. If Plaintiff was 51% or more negligent, Plaintiff lost.
(B) Present Law
SB 120 retains Ohio's modified comparative negligence standard but calls it “contributory fault.” §2307.011(B). However, SB 120 reduces Plaintiff's recovery by a percentage of liability attributable to liable non-parties; ('2315.33). Consequently, a Plaintiff still recovers if the Plaintiff's contributory fault is 50% or less than the combined tortious conduct of all other parties and liable non-parties.
V. CONTRIBUTION/INDEMNITY
(A) A good faith release or covenant to one joint tortfeasor does not discharge other joint tortfeasors unless the terms otherwise provide ('2307.28(A) & '2307.28(B)). Accordingly, release only that party and not Aall liable parties@; also, specifically preserve your claims against Aall other parties@.
(B) A joint tortfeasor receives full credit for all sums already recovered by the Plaintiff in settlement or covenant, except when it would result in Plaintiff's receiving less than the total amount of compensatory damages ('2307.28). This changes the holding under Fidelholtz v. Peller, 81 Ohio St.3d 197 (1998) and former '2307.32(F), which provided that a set-off occurred only when the settling tortfeasor admitted Aliability in tort@.
VI. S. B. 120 - CONSTITUTIONAL IMPLICATIONS
(A) Article 1, '16 - Open Courts
The doctrine of joint and several liability is rooted in this provision. The Ohio Supreme Court held that Aa person wrongfully injured in his person is entitled, in the administration of justice, to full satisfaction without limitation or restriction upon the number of Defendants contributing to cause such injury@. Diamond v. Davis Bakery, Inc. (1966), 8 Ohio St.2d, 38, 44. The Diamond Court held that a covenant not to sue a joint tortfeasor failed to release another joint tortfeasor. A fundamental tort principal is to make the Plaintiff whole for his/her injuries. Fantozzi v. Sandusky Cement Products Co. (1992), 64 Ohio St.3d 601.
SB 120 restricts or eliminates joint and several liability; this denies Plaintiff full recovery or remedy. This same result occurs by apportioning fault to liable non-parties.
A negligent free Plaintiff is the best Plaintiff to mount this constitutional attack. See for example, Transfer Co. v. Kelly, 36 Ohio St. 86 (1880).
(B) Art. I, '19(A) - Wrongful Death
SB 120 applies to wrongful death actions ('2307.011(E) and 2307.011(K)) and unconstitutionally limits the Plaintiff's wrongful death damages by eliminating joint and several liability and recovery for percentages attributed to liable non-parties. A negligent free decedent is the best Plaintiff to mount a constitutional challenge to SB 120.
(C) Art. IV, '5(B) - Separation of Powers Art. II, '32
A Defendant can raise the liable non-parties as an affirmative defense any time before trial ('2307.23(C)). This unconstitutionality conflicts with controlling Ohio Civil Rule 12 that requires all defenses must be raised in a responsive pleading or by applicable Motion. (See also Civil Rule 8)
In Rocky v. 84 Lumber Co. (1993), 66 Ohio St.3d, 221, the Court held: AThe Ohio Rules of Civil Procedure, which were promulgated by the Supreme Court, pursuant to Section 5(B) Article IV of the Ohio Constitution, must control over subsequently enacted inconsistent statutes purporting to govern procedural matters.@
Legislative infringing on the Court's rule-making power is a violation of the separation of powers and was one of the primary reasons the Court determined that SB 350 was unconstitutional in State ex rel. Ohio Academy of Trial Lawyers, et al. v. Sheward (1999), 86 Ohio St.3d 451 at page 491. Note that the application of SB 120's restrictions on recovery are via jury interrogatories. This may also infringe on the Court's powers.
A similar liable non-party rule in Michigan was struck down under this theory. Staff v. Johnson, 242 Mich. App. 321 (2000)3.
(D) Art. II, '15(D) - One Subject Rule
SB 120 addresses numerous topics and contains several specials sections on:
1. roller rink liability ('4171.10); 2. a potential liability for a minor's temporary permit ('4507.07); 3. liability for a taxpayer aggrieved by the Department of Taxation in the Court of Claims ('5703.54). and: 4. amends ''1775.14; 2315.08; 4171.10; 4507.07; and 5703.54; enacts ''2307.011, 2307.22, 2307.23, 2307.24, 2307.25, 2307.26, 2307.27, 2307.28, 2307.29, 2315.32, 2315.33, 2315.34, 2315.35, 2315.36, 2315.41, 2315.42, 2315.43, 2315.44, 2315.45, and 2315.46; and 4.repeals ''2307.31, 2307.32, 2307.33, 2315.19, and 2315.20. S. B. 120 amends, enacts, or repeals thirty sections of the Ohio Revised Code.
The Constitutional one subject limitation is liberally construed in favor of the General Assembly. However, it appears that the General Assembly Alog rolled@ the provisions on roller rink liability, temporary permits, and taxpayer liability.
(E) Due Process/Equal Protection
Under due process and/or equal protection, a rational basis test exists if a fundamental right is not involved. Under the rational basis test, the challenger of the statute must prove that the statute is arbitrary and unreasonable. See Morris v. Savoy (1991), 61 Ohio St.3d 684; Mominee v. Scherbarth (1986), 28 Ohio St.3d 270; and Schwan v. Riverside Methodist Hospital (1983), 6 Ohio St.3d 300. Morris v. Savoy, supra, holds that AEqual protection of the laws require the existence of reasonable grounds for making a distinction between those within and those outside a designated class.@ Morris, 61 Ohio St.3d at 699, citing State v. Buckley (1968), 16 Ohio St.2d 128. The challenger must demonstrate there was no rational basis for a creation of the class or that those within the class were not being treated equally in furtherance of a legitimate governmental interest.4
SB 120 may violate equal protection since the joint and several liability restrictions only apply to tort actions, and not to partnerships ('1775.14). Also, what rational basis exists for determining that joint and several liability only applies to economic damages v. noneconomic damages or to the over 50% negligent Defendant v. the 49% or 50% negligent joint Defendant.
If a fundamental right is involved, a strict scrutiny test requires a compelling government justification. Sorrell v. Thevenir (1994), 69 Ohio St.3d 415. If SB 120 violates Ohio's constitutionally protected Open Court/Right to Remedy provision, argue a strict scrutiny standard.
VIII. SUGGESTIONS
- File early and discover the identity and specific negligent acts of all liable/non- parties within the statute of limitations; you can then add them to the lawsuit within the SOL.
- Sue everyone who is liable in sight - otherwise, a jury may award a percentage of negligence to liable non-parties leaving your Plaintiff with no recovery.
- Name several John Does in your complaint. Follow Ohio Civil Rules 15(C); 15(D), 3(A) and the savings statute 2305.19(A). Read Amerine v. Houghton Elevator Co., (1989) 42 Ohio St.3d 57. Read the briefs and look for the upcoming opinion in John A. La Neve, et al. v. Atlas Recycling, Inc.; China Shipping (North American Holding Co., Ltd., et al), Supreme Court Case No. 2007-1199; 2007-1372, 2007-1373 (Ohio Supreme Court – pending). Don’t rely on the Does to save you!
- Remember, the defendant must actually identify any liable non-parties by name before the trial.
- Argue that liable non-parties cannot engage in tortious conduct that proximately caused injury, especially if the Court lacks jurisdiction or a valid claim does not exist against them.
- Request the Court to assess at least a directed verdict standard for all liable non-parties. Remember, the defendant has the burden of proving any contributory fault upon the plaintiff and the defendant should also have the burden of proving fault upon liable non-parties, especially since this is an affirmative defense.
- Maximize recovery - Break down and request recovery on each and every element of economic loss ('2307.011(C)) and noneconomic loss ('2307.011(F)). Remember the noneconomic loss elements in Fantozzi, supra - loss of enjoyment of life and basic activities are missing from the statutory definition of noneconomic damages in '2307.011(F) - include them!
- When partially settling with a joint tortfeasor, release only that tortfeasor and preserve all claims against all other liable parties.
- Challenge the constitutionality of SB 120 in your Complaint. Send a copy of your Complaint to Attorney General. A negligent free decedent in a wrongful death claim poses the best constitutional challenge to SB 120.
