Joint and Several Liability: A California Primer

Author: Kelly Denham

“Joint and several liability” comes into play in a personal injury lawsuit involving negligence causes of action or an intentional tort asserted against multiple defendants. Joint and several liability allows a plaintiff to sue for and recover the full amount of recoverable damages from any defendant, regardless of a particular defendant’s percentage share of fault. “One of the principal by-products of the joint and several liability rule is it frequently permits an injured party to obtain full recovery for his injuries, even when one or more of the responsible parties do not have the financial resources to cover their liability.” (American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 590.)

Defendants may be joint and several tortfeasors if they are liable to the same person for the same harm. They do not need to act at the same time or in the same way. The measure of joint and several liability is whether the defendants’ conduct produced an indivisible, single harm.
Under California Code of Civil Procedure Section 875(a), jointly and severally liable defendants are generally entitled to recover from one another the percentage of damages which are attributed to the other’s conduct in what is known as a contribution action. (C.C.P. § 875(a).) However, a tortfeasor who intentionally injures another has no right of contribution from any other tortfeasors. (C.C.P. § 875(d).) On the other hand, intentional tortfeasors are permitted to seek contribution and indemnity from other intentional tortfeasors in the action. (Baird v. Jones (1993) 21 Cal.App.4th 684, 686.)

California adopted Proposition 51 in 1968, which is codified as Civil Code Section 1431.2. Proposition 51 changed California’s rules about who must pay for non-economic damages. Defendants are still jointly and severally liable for economic damages. However, under Proposition 51, “in any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant’s percentage of fault, and a separate judgment shall be rendered against that defendant for that amount.” (Cal. Civ. Code § 1431.2(a).) In other words, a defendant may be responsible for 100% of a plaintiff’s economic damages as long as they are assigned at least a 1% share of liability, but would only be responsible for non-economic damages in proportion to their share of fault.
A simple example illustrates the concept of joint and several liability after Proposition 51. Imagine two drivers (defendant A and defendant B) negligently cause a collision and injure a pedestrian. For purposes of the hypothetical, assume defendant A was 70% at fault and defendant B was 30% at fault. Under the rule of joint and several liability, the injured plaintiff can collect the entire amount of his economic damages from either defendant A or B. However, defendant A would only be responsible for 70% of plaintiff’s non-economic damages, while defendant B would be responsible for 30% of plaintiff’s non-economic damages.

The apportionment of non-economic damages under Proposition 51 is designed to benefit co-defendants who act negligently. Proposition 51 did not change the law regarding intentional tortfeasors, whose liability is not based on comparative fault. Intentional tortfeasors remain jointly and severally liable for all of the plaintiff’s damages and are not entitled to Proposition 51 apportionment of non-economic damages. (Thomas v. Duggins Const. Co., Inc. (2006) 139 Cal.App.4th 1105, 1112-1113.)

ABOUT THE AUTHOR: Kelly Denham graduated from Loyola Law School in 2012. Ms. Denham’s primary focus at Tyson & Mendes is construction defect litigation. Contact Kelly at 858.263.4117 or kdenham@tysonmendes.com.

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