What Impact is Pennsylvania’s Fair Share Act Having on Personal Injury Suits?

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The Fair Share Act, now codified within 42 Pa.C.S.A. § 7102, was signed into law by Governor Corbett as Senate Bill 1131. The Act amended Pennsylvania’s comparative negligence framework which is utilized to apportion damage in a broad array of litigated matters including personal injury matters. The Act’s purpose and intention was to modify Pennsylvania’s statutorily adopted common law doctrine handling of joint and several liability in the context of comparative fault. However, as enacted, the act did not apply to actions that accrued prior to June 28, 2011. Considering Pennsylvania’s general rule of a two-year statute of limitations for personal injury matters, most matters governed by the previous joint and several liability rules would have been brought by June 28, 2013. Thus, the Fair Share Act’s amendments have been in effect for a little more than a year and should provide the operative framework for damage apportionment in the vast majority of personal injury claims brought today. Our Philadelphia personal injury attorneys explain:

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How did Joint & Several Liability Function Previously?

Joint & several liability is a common law doctrine that was adopted by statute by the Pennsylvania legislature. It can make an individual person or legal entity responsible for the full amount of damages when multiple actors are individually liable to the injured party. Joint and several liability can arise when multiple parties act in a concert of action that results in the injury. An example of a concert of action exists when a passenger encourages the driver to speed and a car accident occurs thereafter. Alternatively, if two drivers were racing and only one vehicle actually struck a pedestrian, both drivers could be held liable. Joint and several liability can also arise when individual’s independent actions come together to cause one indivisible injury. For instance, if two motorists are diving negligently and crash causing debris to be launched into the air and strike a bystander, both drivers would be jointly and several liable. Finally, when individuals share a common duty that is breached and produces an injury, joint and several liability may also exist.

Under the traditional application of joint and several liability, any liability whatsoever for the injury would result in potentially 100% of liability. That is, a successful plaintiff would be permitted to recover the full amount of damages from any single defendant who was deemed liable for the injury. Thus, under the old rule the percentage of damages one was liable for was not linked to one’s fault in the matter. 100% of damages could be imposed on a party who was found to be liable for a personal injury or other tort.

How Does the Fair Share Act Modify Damages in Personal Injury Matters?

The amended comparative negligence statute enacts a type of system of proportional fault. Under this proportional fault system, a defendant in strict liability, like product liability suits, or negligence actions is typically only liable for the percentage of fault he or she contributed. That is, if a defendant is 30% liable for one’s injuries, they are also liable for 30% of the damages. However, exceptions to these general principles of proportional fault exist. Perhaps the most common exception to the rule is that a defendant who is found to be 60%, or more, at fault can still be held liable for 100% of damages. Other exceptions to the proportional damages rule include:

  • Intentional misrepresentation
  • Intentional torts
  • Violations of Pennsylvania’s Liquor Code
  • Releases of hazardous substances

A defendant may still seek a right of contribution against his or her fellow defendants if he or she pays more than the share they are liable for. However, with the 60% liability threshold, these actions can be expected to decrease. The act also allows a jury to consider the liability of individuals or parties who have settled out of the litigation.

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What Practical Impacts Can be Attributed to the Fair Share Act in Pennsylvania?

While on its surface, there is appeal to the idea of linking culpability to financial liability, one possible impact of the Fair Share Act, is that the right to recovery for injured parties may be limited or foreclosed entirely when there are multiple tortfeasors. Under the previous apportionment scheme, joint & several liability provided a successful plaintiff with flexibility in collecting on his or her favorable judgment. While the damages one was liable for may not have necessarily matched one’s culpability, the injured plaintiff was provided with multiple options to make oneself whole. The rigid statutorily defined framework of the new approach can lead to situations where despite a favorable decision, all or part of the award may be uncollectable. For instance, if there is a 80/20 apportionment of fault, but the party that is 80-percent liable is judgment-proof, the practical impact is that the injured plaintiff may only be able to recover 20-percent of the damages they were entitled to – a pittance. However, under the old system of joint & several liability, the plaintiff would have the option to seek 100% of damages thus ensuring that a victim of negligence would be made whole to the greatest extent possible. In short, the old system seemed to place the burdens on the responsible parties while this new system seems to shift much of this burden to the injured party who had no choice in the matter.

Commentators have also often remarked that such a system is unfair to the deep-pocketed but minimally culpable defendant. Such criticisms often do not present a comprehensive picture. A defendant who pays more than his or her share of the damages has always had the option to pursue a right of contribution against his or her fellow defendants. While commentators have expressed concerns about the procedural jockeying that was possible by defendants and the possibility of inequitable results, the new rule does not fix that possibility but rather shifts these burdens from the responsible parties onto the injured party.

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Furthermore, it is likely that this system may impose greater costs in terms of judicial efficiency. To begin with, when a personal injury lawsuit is filed, the plaintiff may alleged a number of theories and ground for the lawsuit including that the injury was a result of, “reckless, negligent, intentional or careless conduct.” Previously, language of this type was often treated as boilerplate, but under the amended rules, a defense attorney must object to this language or risk an exception to the Fair Share Act’s proportional apportionment of damages. Also on the defense side, there is a strong incentive for each defendant to join additional defendants to the matter so as to decrease each defendant’s share of the total liability and thus more likely to fall below the 60% threshold.

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Additionally, plaintiffs are less likely to settle in situations where a deep-pocketed defendant is near the 60% liability threshold. Rather, the new system incentivizes a plaintiff to delay settlement so as to retain a party who may be liable for 100% damages due to being 60%, or more, at fault. This incentive is in direct opposition to public policy considerations which encourages the resolution of legal claims.

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