In Washington, there is an exception to the rule of comparative fault. That exception occurs when the injured child is considered fault-free. In that situation, if there are multiple negligent parties who have caused injury to the child then each of them will be jointly and severally liable for all damages. This means that each negligent party is also individually responsible for 100% of the damages and not just limited to his or her respective share of fault.
Take the example of Party A and Party B above. If joint and several liability exists, then Party A is liable for the full amount of damages calculated at $100,000 and not just Party A’s proportionate share of $25,000. This is the same for Party B, who is also responsible for the full award of $100,000 and not just Party B’s share of $75,000. Some people question whether the law of joint and several liability is fair or just. Sometimes a negligent party who shares a very small percentage of fault could be legally required to pay a much higher percentage of the child’s damages. For example, if Party A was only found to be 1% at fault and Party B 99% at fault, Party A could still be made to pay much more than its share of $1,000 of the child’s damages. Let’s say Party B is uninsured and has no money to pay a verdict. Then Party A could be liable for the full $100,000. Is this fair? Well, the rationale behind joint and several liability is that it is more just to fully compensate an innocent victim than to allow a negligent party to limit his or her share of damages to that actor’s proportionate share of fault. Other commentators have noted that joint and several liability benefits society by effectively placing the economic burden on those who can afford it most (e.g., corporations, governmental entities, insurance companies, etc.) while at the same time protecting the innocent victim.
Note: See also: Guido Calabresi & Jon T. Hirschoff, Toward a Test for Strict Liability in Torts, 81 YALE L.J. 1055 (1972).
Special Note: The information in this article is just that – INFORMATION. This article does not constitute legal advice and no attorney-client relationship has been formed by receiving and reading this article. Washington State’s attorney ethics rules).