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Apportionment of Liability

The apportionment of liability among multiple defendants in product liability actions varies from state to state. The state laws governing apportionment of liability range from joint and several liability to proportionate liability to various hybrid forms of apportionment. Under the theory of joint and several liability, a plaintiff could recover all of his or her damages against only one of multiple defendants. Joint and several liability was designed to allow plaintiffs to recover from some defendant instead of having to pursue all potential defendants who could avoid liability by blaming the injury on other defendants. Joint and several liability places the burden on the defendant of joining other tortfeasors in an action or risk having to pay for all of a plaintiff’s damages alone.

Under the proportionate liability theory, each defendant that is found liable is responsible for its share of the damages it caused. Thus, if a defendant is 50 percent at fault, it will be responsible for 50 percent of the plaintiff’s injuries. The proportionate liability system ensures that defendants are not held liable for more than their share of damages.

Hybrid systems for allocating liability often combine the joint and several liability system and the proportionate liability system. For example, some systems may allow for joint and several liability for economic damages and proportionate liability for noneconomic damages. Another hybrid system might allow a plaintiff to recover the entire judgment against any defendant who is found to have been more than 50 percent liable.

Historically, nearly all states had adopted joint and several liability. With the advent of tort reform, however, a number of states abandoned joint and several liability, finding that it is inequitable to defendants. Only 14 states and the District of Columbia still use joint and several liability. The remaining states have either abolished joint and several liability or have adopted a hybrid system.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.