Joint and Several Liability

Problem

The rule of joint and several liability is neither fair, nor rational, because it fails to equitably distribute liability. The rule allows a defendant only minimally liable for a given harm to be forced to pay the entire judgment, where the co-defendants are unable to pay their share.

ATRA's Position:

ATRA supports replacing the rule of joint and several liability with the rule of proportionate liability. In a proportionate liability system, each co-defendant is proportionally liable for the plaintiff’s harm. For example, a co-defendant that is found by a jury to be 20% responsible for a plaintiff’s injury would be required to pay no more than 20% of the entire settlement. More moderate reforms that ATRA supports include: (1) barring the application of joint and several liability to recover non-economic damages; and (2) barring the application of joint and several liability to recover from co-defendants found to be responsible for less than a certain percentage (such as 25%) of the plaintiff’s harm.


Opposition Opinion:

The personal injury bar’s argument in support of joint and several liability—that the rule protects the right of their clients to be fully compensated—fails to address the hardship imposed by the rule on co-defendants that are required to pay damages beyond their proportion of fault.

Joint and Several Liability Reform: SB 601 (1995): Or. Rev. Stat. § 18.485.

Oregon|1995

Bars application of the rule of joint and several liability

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Bars application of the rule of joint and several liability in the recovery of all damages, except where the defendants is determined to be insolvent within one year of the final judgment.  In those cases, a defendant less than 20% at fault would be liable for no more than two times her original exposure and a defendant more than 20% liable would be liable for the full amount of damages.


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Joint and Several Liability Reform: SB 323 (1987).

Oregon|1987

Bars application of the rule of joint and several liability

[…]

Bars application of the rule of joint and several liability in the recovery of  noneconomic damages.  Bars application of the rule of joint and several liability in the recovery of all damages, where the defendant is found to be less than 15% at fault.


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