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What is 'joint and several' liability?

Legislatures, courts and bar associations around the country have long encouraged, if not demanded, that lawyers use plain language in legal documents. A summons and complaint should not be so thick with arcane terminology, much of which will certainly be in Latin, that an average plaintiff cannot understand it. Similarly, contracts should stay away from "party of the first part" language in favor of less cumbersome terms like "you" and "the company."

Personal injury law is no exception. Statutes continue to use the term "tortfeasor," instead of, say, "a person that breaches a duty that the law imposes on persons who stand in a particular relation to one another." (Black's Law Dictionary (10th ed. 2014)) There are times when that law favors brevity.

Another term that is difficult to translate into everyday English is "joint and several liability." This term, however, is one that anyone who has been injured in a motor vehicle accident or as the result of medical malpractice should be aware of. Why? Because it has to do with damage awards when there are two or more defendants.

Joint liability: Someone responsible for a wrongful act is "liable" for the harm caused by the act. When two or more people are responsible for the same wrong, they are jointly liable. Joint liability applies in cases where the harm is caused by two or more individuals working in concert, cases where it is almost impossible to tease out their individual contributions to the wrongful act.

Several liability: When it is possible to determine each person's contribution, though, they are said to be severally liable. The person who suffers the injury, then, is able to file a lawsuit against each person individually.

In Illinois: The application of joint and several liability varies from state to state. Illinois uses a modified approach, but there are exceptions.

For example, product liability lawsuits often involve more than one defendant. Bob is injured by a defective hover board, and he sues both the hover board manufacturer and the manufacturer of the battery. He wins the case. The judge or jury must review the facts and assign a percentage of fault to each company. If one company cannot pay its portion of the damage award, "true" joint and several liability laws would leave the other company responsible for the entire damage award.

Illinois law, however, dictates that a defendant is only responsible for the entire award if the court found it at least 25 percent at fault. In other words, the little guy should not be left holding the bag.

Illinois does not apply the modified rule to medical malpractice negligence cases, though. If one defendant cannot pay, the other is responsible for the entire damage award.

Sources:

Illinois Compiled Statutes Annotated, 73 ILCS 5/2-1118, "Exceptions," accessed Feb. 29, 2016 

Illinois Law & Practice, "Products Liability," February 2016 Update, via Westlaw

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