TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Monday, March 22, 2021

PA: Joint and Several Liability Still Applies if Plaintiff Is Not Negligent

In 2011, the Pennsylvania General Assembly altered the common law rule of joint and several liability with the Fair Share Act.  That Act restricted joint and several liability to intentional torts or misrepresentations, the release or threatened release of certain hazardous substances, serving alcohol to a visibly intoxicated patron, and, most importantly, to defendants who were found to be 60% or more responsible for the tortious injuries of the plaintiff.  Last week, the Superior Court ruled that the Fair Share Act does not apply in cases in which the plaintiff is not found to be contributorily negligent for her own injuries.  In other words, for wholly innocent plaintiffs, joint and several liability remains in place.  (The opinion is here:  Download KEITH SPENCER Appellant v CLEVELAND JOHNSON TINA GAINER JOHNSON AND PHILADELPHIA)  This argument was put forth by Widener alums Scott Cooper & Lara Antonuk is their contribution to Widener's Mass Tort Litigation symposium in 2013.  (The article, check particularly footnote 143, is here:  Download Cooper-antonuk---ready-for-pub.-6.18.14)

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It seems like a great result (assuming it holds up on any appeal to the PA SC) and a very nice vindication of the argument in the article—and by extension, the authors who made the argument.

Also, the opinion and article don't mention it, but the Act is the "brainchild" (using that term quite loosely) of the reactionary minds at ALEC. Of course, ALEC is known for its other smash hits like voter suppression laws, ag gag bills, and boosting the penal-industrial complex.

Finally, I note the massive irony of the PA Republican legislators and Gov. at the time who enabled the Act, which tramples on the rights of tort victims, being the same ones who clamor for the absurd "victims' bill of rights" constitutional amendments, which eviscerate the rights of criminal defendants. So I guess tort victims are just chopped liver as far as the Rs are concerned. It's also no coincidence that ALEC is at the forefront of groups advocating for these kinds of amendments.

Posted by: hardreaders | Mar 22, 2021 3:13:06 PM

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