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Joint and Several: Yes, the more the merrier

Many states have considered changing the rules of joint and several liability. Joint and several provides that either defendant is fully liable to the plaintiff for his/her total damages. In Massachusetts, we have a statute, which is Massachusetts General Laws c.231B, which provides that the at fault parties should pay in proportion to their per rata shares and that their relative degrees of fault shall not be considered. This has interesting and potentially very helpful implications.

A plaintiff need only show that a defendant is 1% negligent. The co-defendant can be 99% negligent. The point is that each of them will have to pay 50/50. This has a very positive effect on extracting money from the lesser negligent party. Usually that will work in a plaintiff’s favor. To be sure, the 99% negligent party may try to have his/her contribution reduced because they would not have to pay 99% of the judgment, assuming there are sufficient assets or insurance coverage on all negligent parties. Nevertheless, on the whole, joint and several has many favorable possibilities for an individual who is suing.

There is one anomaly that is worth considering. Under Massachusetts law, even if the plaintiff is negligent and more negligent than defendant B or C, if plaintiff’s negligence is 50% or less, he/she can recover the entire judgment (less the comparative portion) from either defendant, even the one who was less negligent than the plaintiff. This unusual result was given force and effect in the Massachusetts case of Graci v. Damon, 376 Mass. 931 (1978).

In subsequent blogs, I will explain the philosophy behind joint and several liability. In the meantime, be aware that it has helpful possibilities to ensure a full recovery.

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