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Home / Washington Business - July/August 2004 / PRO-CON: Existing Tort Laws Work... Leave Them Be |
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PRO-CON: Existing Tort Laws Work... Leave Them Be |
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Written On: July/August 2004 |
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Written By: By Judy Massong |
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If a campfire starts the forest fire that burns down your house, do you care who brought the sticks and who brought the match? Wrongdoers want to blame the trees for burning.
Our civil justice system holds wrongdoers accountable under the law when their actions cause harm. The concept of joint and several liability is founded on the simple principle that, but for the actions of any wrongdoer, the injury would never have occurred. In other words, but for the use of sticks and matches, the forest would still be standing.
Opponents of joint and several liability always invoke this single untruth: wrongdoers are liable for 100 percent of the damages with only 1 percent of the blame. Wrong.
Negligent wrongdoers are 100 percent responsible for their actions because, under the law, before even 1 percent of fault can be allocated to any party, they have to have proximately caused the harm in simple terms, the legal standards says “but for” their actions the injury never would have occurred.
Marcus Morgan is an Example
Consider the story of Marcus Morgan. Marcus was a middle school student at Mann Middle School in Lakewood. On Dec. 15, 2003, Marcus stepped into a pedestrian crosswalk when the light turned green. He had the right of way. But a school bus struck and killed Marcus where he stood.
Both the bus driver and the school district are liable for Marcus’ wrongful death. Subsequent investigations revealed that the school bus driver had a history of heavy prescription drug use which the school district clearly should have known. While each defendant may be partially culpable for the negligence in varying degrees, each defendant is 100 percent responsible for the injury. It is important to remember that but for that one percent of fault, many preventable injuries and deaths would not have occurred—victims like Marcus Morgan would still be alive.
Defendants Need to Deal With Liability
If the bus driver’s insurance company and the school district choose to challenge their respective liabilities, that burden should be left to them—not the Morgan family. They are entitled to a full recovery under the law.
Our existing tort law already takes into account when a victim has some fault in causing their injury. Victims who are even 1 or 2 percent at fault do not get the benefit of joint and several liability. Thus this injured person has to fully bear the cost of any uncollectible damages. For example, if you cross against a red light, and are hit by a speeding drunk driver, you are probably contributorily negligent. Joint and several liability doesn’t apply. If you walk in the crosswalk when the light is green, and a drunk driver hits you, you are considered fault free. But a coalition of businesses, governments, and insurers says they are not 100 percent responsible for their actions—even if their percentage contributed to the demise of the victim.
Business, Insurers, Government Chipping Away Tort Laws
For decades, this coalition has worked to chip away at the legal rights of injured citizens with the hopes of dumping their responsibilities on the rest of us. Negligent wrongdoers would have us believe they are the victims. “I only meant to cause 40 percent of the injury, so I should pay 40 percent of the damages.” The injury inflicted upon the innocent person is indivisible.
Under joint and several liability, so are the damages. Each of us is 100 percent responsible for our own behavior. When we seek to abolish our responsibilities, we ask victims to absorb the consequences of the harm inflicted upon them. That’s not fair no matter how you try to divide it up or spin it. Nobody signs up to be injured or killed.
In 1986 legislative sponsors of the tort reform act recognized the fairness of this system. On the Senate floor, the sponsor, Irv Newhouse, argued that the changes in the law would be fair because “we do not change joint and several liability for innocent injured people."
Defendants Point Fingers at Phantoms
Defendants have a financial incentive to cast blame and point fingers at phantom defendants and co-defendants in an effort to reduce their proportionate share of damages in any given lawsuit. This forces innocent injured victims to name multiple defendants in a lawsuit and adds cost to the system.
This law was created in 1986 to benefit insurance companies looking for ways to cut their losses by cutting claims. Very simply, defendants who are not named, don’t pay. This is known as the “empty chair” problem. It fosters the blame game, increases litigation and reduces speedy settlements. Abolishing joint and several would magnify this problem further by forcing victims to file multiple lawsuits to obtain a full recovery for their injuries. It would also shift the costs of these injuries onto victims, taxpayers and private health insurers.
When we abolish joint and several, everyone loses. Most of all, innocent injured citizens and taxpayers.
Judy Massong is president of the Washington State Trial Lawyers Association and an attorney with the Seattle Firm Peterson, Young, Putra, Fletcher, Zeder, Massong & Knopp, PS.
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