Joint and Several Liability

50-state survey

CONTENTS

1 Introduction

13 Louisiana

2 A Primer on Joint
and Several Liability

13 Maine

5 Overview of State Law

14 Massachusetts

5 Alabama

15 Michigan

5 Alaska

15 Minnesota

6 Arizona

16 Mississippi

6 Arkansas

16 Missouri

7 California

17 Montana

24 South Carolina

7 Colorado

17 Nebraska

24 South Dakota

8 Connecticut

18 Nevada

25 Tennessee

8 Delaware

18 New Hampshire

25 Texas

9 Florida

19 New Jersey

9 Georgia

19 New Mexico

10 Hawaii

20 New York

10 Idaho

20 North Carolina

11 Illinois

21 North Dakota

11 Indiana

21 Ohio

27 West Virginia

12 Iowa

22 Oklahoma

28 Wisconsin

12 Kansas

22 Oregon

28 Wyoming

12 Kentucky

23 Pennsylvania

29 Offices & Affiliates

14 Maryland

23 Rhode Island

26 Utah
26 Vermont
26 Virginia
27 Washington

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Joint and Several Liability

The rule of joint and several liability makes each of multiple defendants liable
for the entirety of the plaintiffs loss, regardless of each defendants degree of
fault. For example, a defendant who is only 5 percent at fault might end up
paying the entirety of the plaintiffs damages especially if the other defendants
are insolvent. Obviously, where the rule applies it can have a significant impact
on the parties assessment of the case.
In cases with multiple defendants, defendants must know

This 50-state overview of the doctrine of joint and several

whether joint and several liability applies. If it does, it might

liability provides the answer to these questions for each of

determine the decision to defend or settle a case. In evaluating

the U.S. states. As will be seen, while some states follow pure

cases with multiple defendants, to start, defendants are

versions of either the several-only or the joint and several

advised to learn the answer to the following key questions:

liability rules, most states have adopted a middle-of-the road

approach. States have hybrid liability rules (where joint and

1. Does joint and several, several or some modified

several liability applies to some portion of damages, such

liability rule apply?

as the economic loss, and several-only liability applies to

2. Is there a right to contribution among the defendants?

the rest) or variable rules (where the type of liability turns on

3. In case of a partial settlement, what becomes of the

some aspect of the plaintiffs cause of action, such as joint

and several liability being triggered only for intentional and

remaining defendants liability?

environmental torts, or for a certain percentage of fault).

4. If the plaintiff is partially to blame for his own injuries,

what effect does that have on the defendants liability?

50-state survey
A Primer on Joint and Several Liability
The Concept of Joint and Several Liability
Joint and several liability allows a plaintiff to sue for and

Contribution Among Jointly and

Severally Liable Tortfeasors

recover the full amount of recoverable damages from any

Jointly and severally liable defendants are generally (and

[defendant]. Restatement (Third) of Torts: Apportionment of

theoretically) entitled to recover from one another the

Liability 10 (2000). In its pure form, the practical effect of this

percentage of damages attributable to the others conduct.

doctrine is that the plaintiff can recover the entire amount of

The reality, however, is that recovery by way of contribution can

damages from any of the jointly and severally liable tortfeasors,

be thwarted by a judgment-proof codefendant. Most often,

regardless of a particular defendants percentage share of fault.

this means a bankrupt party or one over whom jurisdiction

could not be had. Even where it is possible to collect from

Joint and several liability is meant to address the inequity that

the other party at fault, the process of doing so can have

flows from a responsible actor being unable to pay. In such

additional, sometimes significant, costs.

a case, someone the plaintiff or another defendant will

end up paying for the insolvent partys share. States are left

The risk of third-party insolvency creates pressure for solvent

with having to decide where to shift the risk created by the

defendants (or those with higher policy limits) to settle or

judgment-proof defendant. The choice of who (between the

else face the possibility of being held liable for the entirety of

remaining defendants and the plaintiff) will ultimately bear the

damages with no codefendant from which to recover. The right

risk is one of policy, which the states pursue according to their

to contribution works to deter undue pressure to settle, but it

own preferences. For states that choose to have defendants

is an imperfect remedy that does not completely eliminate the

bear this burden, joint and several liability is the preferred

harshness of joint and several liability for defendants.

option.

Variations on a Theme

Where the doctrine applies, the plaintiff is likely to search

for a financially viable (that is, well-insured) defendant with a

The Restatement (Third) of Torts discusses five different

sufficiently deep pocket to ensure full recovery.

approaches to dealing with multiple tortfeasors. Restatement

(Third) of Torts: Apportionment of Liability 17, comment a
(2000). Each approach allocates the risk of insolvency of one or

The Test for Application of the Doctrine

more of the responsible tortfeasors differently.

Entities may be joint and several tortfeasors if they are liable

to the same person for the same harm. Notably, they need

The first two approaches systematically favor either defendants

not act at the same time or in any concerted way. Instead, the

or plaintiffs in cases involving the insolvency of one of the

measure of joint and several liability is whether the tortfeasors

responsible actors. Pure joint and several liability places the

conduct produced an indivisible, single harm. For example,

risk of insolvency and the burden of identifying nonparty

where multiple contractors build a house and that house

tortfeasors on defendants. The second approach is pure several

collapses due to faulty construction, the contractors are jointly

liability. This approach allocates the risk of insolvency entirely

and severally liable. Similarly, where two or more drivers

to the plaintiff. Under pure several liability, the plaintiff may

negligently cause a collision in which a pedestrian is injured,

recover from each, severally liable, defendant only the portion

the drivers are jointly and severally liable.

of damages that are attributable to that defendants fault.

Joint and Several Liability

Because the wholesale risk-shifting of these two approaches

The model rule allows for reallocation of a defendants share

can lead to grossly unfair results, many states have adopted

of the judgment if the plaintiff is unable to collect from that

varied or hybrid versions of these allocation schemes. Some

defendant. Under the proposed rule, in such a circumstance

states attempt to alleviate the burden of insolvency through

the remaining defendants pay the portion of the uncollectable

reallocation of the insolvent partys liability. Under this track,

amount that corresponds to their percentage of liability. A

joint and several liability applies to the solvent defendants but

partys payment of an amount greater than its proportionate

the comparative share of any insolvent tortfeasor is spread out

share gives rise to the right to contribution.

among the remaining parties, sometimes the plaintiff included,

Under this scheme, the plaintiffs contributing fault diminishes

in proportion to their share of the fault.

but does not bar the plaintiffs right to recovery, provided that

Another approach splits the risk of insolvency between the

the plaintiffs fault does not exceed that of the defendants.

plaintiff and the solvent defendants: It imposes joint and

With respect to partial settlement, the rule directs a pro rata

several liability on each tortfeasor whose share of the harm

reduction of the judgment against the non-settling defendants,

exceeds a certain percentage of fault. Those tortfeasors who

corresponding to the portion of the settling partys share of

fall below the set threshold are severally liable. The rest are

the fault.

jointly and severally liable. The effectiveness of this approach

The Effect of Partial Settlement

turns on happenstance, not equity; however, because the more

tortfeasors there are, the more likely it is that each will have

Additional differences exist between the jurisdictions in their

a relatively small percentage of fault. Consequently, this rule

treatment of partial settlements; that is, cases where the

favors defendants when there are many of them and it favors

plaintiff reaches a settlement agreement with some, but not all,

plaintiffs when there are few tortfeasors.

of the defendants.

The last major variation is a hybrid one in which liability type

Jurisdictions tend to adopt either a pro rata or a pro tanto

is assigned based on the type of harm. Most commonly

method of apportionment of the settling defendants payment.

under this approach, joint and several liability is applied to

The different approaches lead to sharply different results and

the plaintiffs economic loss and several liability is applied to

require different consideration by the defendants. As the

noneconomic damages. The underlying policy consideration

Eleventh Circuit explains:

here values compensation for the tangible, calculable

economic loss and permits the risk of insolvency to rest on the

Assume, for example, that the negligence of A and B

plaintiff for his intangible noneconomic losses.

combine to injure C, who then files a lawsuit against A and

B. On the morning of trial A settles with C for $50,000.

In addition to these variations, many states draw distinctions

The jury subsequently finds that A was 75% responsible

between damages based on the type of action in which they

and B was 25% responsible for the accident and that Cs

are sought. Contract actions are frequently treated differently

damages totaled $100,000. If neither party had settled,

from tort cases. In some states, distinctions are drawn between

judgment would be entered against A for $75,000 and

tort cases while the risk of loss might be on the plaintiff

B for $25,000. But given As settlement for $50,000, how

in a negligence case, joint and several liability will apply for

much should B pay? Under a pro rata approach, B would

intentional torts or cases where the defendants act in concert.

receive a credit for 75% of Cs damages ($75,000) because

A, the settling joint tortfeasor, was 75% responsible for the

The Uniform Apportionment of Tort

Responsibility Act

accident. Thus, B would owe $25,000 ($100,000 - $75,000)

to C. Under the pro tanto approach, B would only receive

In 2003 the National Conference of Commissioners on

a credit for the dollar value of As settlement ($50,000).

Uniform Laws adopted the Uniform Apportionment of

Therefore, B would owe $50,000 ($100,000 - $50,000) to C.

Tort Responsibility Act. This model legislation calls for

Great Lakes Dredge & Dock Co. v. Miller, 957 F.2d

apportionment of liability on the several-only model.

1575, 1579 (11th Cir. 1992)

Exceptions are recognized for parties acting in concert

and for those who fail to prevent another from causing
intentional harm.

50-state survey
The Pro Tanto Approach

Conclusion

The pro tanto rule reduces a non-settling defendants liability

The application of pure joint and several liability is on the

by the amount paid by a settling defendant. This approach

decline between the various jurisdictions. In most jurisdictions,

allows for gamesmanship between the plaintiff and a favored

the pure form of the doctrine has given way to modified

tortfeasor since the plaintiff can settle with one party (for

versions, including those that take into account the plaintiffs

enough, for example, to finance the rest of the litigation) and

comparative fault. Some states have adopted approaches that

rest assured that he will collect the remainder from others if

protect, at least to some degree, the unfairness that might

the verdict is in his favor. To prevent such outcomes, some

otherwise befall deep pocket defendants who become

jurisdictions require a hearing on culpability and a showing of

targets simply because they have the means to satisfy a

good faith before settlements are approved.

judgment. Regardless of these shifts, however, states remain

mindful of the need to continue to ensure the ultimate goal

The Pro Rata Approaches

of the joint and several liability doctrine: an innocent plaintiffs

recovery.

A pure pro rata rule divides liability equally among defendants.

If there are three liable defendants, each becomes responsible
for one third of the plaintiffs damages, regardless of how much
they actually contributed to the loss. A modified pro rata or
proportional approach is more common, however. Under this
approach, liability between defendants is apportioned based
on their relative degree of fault as determined by a jury. This
apportionment then governs each defendants liability to the
plaintiff.
Under either approach, if the plaintiff reaches a settlement with
some but not all defendants, the plaintiffs damages award
is reduced by the settling defendants share of the fault. The
non-settling defendants pay their own shares. If a defendant
settles and it turns out the settlement is less than its share
of liability would have been, the plaintiff may not collect the
additional money from the other, non-settling defendants.
Conversely, if a defendant pays more in settlement than it
would have after verdict, it is barred from seeking contribution
from the non-settling tortfeasors.

Joint and Several Liability

Overview of State Law

Alabama
Pure Joint and Several Liability

Alabama applies the doctrine of pure joint and several

Where there has been a settlement with some but not all

liability. Keibler-Thompson Corp. v. Steading, 907 So.2d

defendants, Alabama applies the pro tanto approach and

435 (Ala. 2005). The state does not provide for fault-based

offsets the remaining defendants liability by the settlement

apportionment between tortfeasors. Ex parte Goldsen, 783

amount. Ex parte Barnett, 978 So.2d 729 (Ala. 2007).

So.2d 53 (Ala. 2000). Tortfeasors who pay more than their

proportionate share are entitled to contribution. Hardy v.
McMullan, 612 So.2d 1146 (Ala. 1992).
Where the plaintiffs claims are for negligence (not, for
example, wanton conduct), any negligence by the plaintiff
defeats his entitlement to recover damages. Otherwise, the
plaintiffs damages are reduced by his portion of the fault. John
R. Cowley & Bros., Inc. v. Brown, 569 So.2d 375 (Ala. 1990).

Alaska
Pure Several Liability

Alaska has adopted several liability and permits the plaintiff to

Alaska has a proportionate offset rule for partial settlements.

recover from each defendant only that defendants share of the

Under this rule, a non-settling defendants share of the

fault. Alaska Stat. 09.17.080 (1989); Asher v. Alkan Shelter,

damages is offset by the payment made by the settling

LLC, 212 P.3d 772 (Ak. 2009). The plaintiffs total damages are

defendants in the same ratio as the settling and non-settling

offset by his share of the fault. Alaska Stat. 09.17.080 (1989);

defendants relative degree of fault. [stat]; Diggins v. Jackson,

Joseph v. State, 26 P.3d 459 (Ak. 2001).

164 P.3d 647, 648 (Ak. 2007).

There is no statutory right to contribution between Alaskas

severally liable tortfeasors but a common-law right to
contribution is available against non-parties. Alaska Stat.
09.17.080 (1989); McLaughlin v. Lougee, 137 P.3d 267
(Ak. 2006).

50-state survey
Arizona
Variable Liability

For most torts, Arizona tortfeasors are severally and not jointly

Tortfeasors have a right to contribution only where joint and

liable. Ariz. Stat. 12-2506(A) (1984); State Farm Ins. v. Premier

several liability applies. Ariz. Stat. 12-2501 (1993); Dietz v.

Manufactured Sys., 172 P.3d 410 (Ariz. 2007). The plaintiffs

General Electric Co., 821 P.2d 166 (Ariz. 1991). When partial

negligence is taken into account and his entitlement is reduced

settlements are had, unless the case is one of joint and several

by his share of the fault. Ariz. Stat. 12-2505 (1984); Gunnell v.

liability, the non-settling tortfeasor is not entitled to a setoff.

Ariz. Public Service Co., 46 P.3d 399 (Ariz. 2002).

Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493 (Ariz. 1996).

There are some notable exceptions to Arizonas several

liability rule. Joint and several liability remains the rule in cases
where vicarious liability applies; where the tortfeasors acted
in concert; for actions brought under the Federal Employers
Liability Act, which addresses compensation of injured
railroad workers; and for waste disposal cases. Ariz. Stat.
12-2506 (1984); Yslava v. Hughes Aircraft Co., 936 P.2d 1274
(Ariz. 1997).

Arkansas
Pure Several Liability

Arkansas defendants are severally and not jointly liable.

In case of a partial settlement, the non-settling tortfeasors

Ark. Code 16-55-201 (2003). Assessment is made against

remain liable for their proportionate share of the plaintiffs

the plaintiff if he is also at fault, and the plaintiffs recovery

damages. Scalf v. Payne, 583 S.W.2d 51 (Ark. 1979).

is barred if he is more than 50 percent at fault. Ark. Code

16-55-216 (2003); Johnson v. Rockwell Automation, Inc., 308
S.W.3d 135 (Ark. 2009). Arkansas permits courts to compensate
for any portion of the plaintiffs damages that are deemed
uncollectable by increasing, within limits, the solvent
defendants share of liability. Ark. Code 16-55-203 (2003).
The statute gives a defendant whose share has been increased
the right to seek contribution from the defendants who are
thought to be judgment-proof. Ark. Code 16-55-203 (2003).

Joint and Several Liability

California
HYBRID AND VARIABLE LIABILITY

In California, a modified approach to joint and several

of partial settlements, the non-settling defendants are entitled

liability is in place. In any action for personal injury, property

to a setoff of any judgment for which they are jointly and

damage, or wrongful death, tortfeasors are held jointly and

severally liable. Goodman v. Lozano, 223 P.3d 77 (Cal. 2010).

severally liable for economic damages and severally only for

For noneconomic damages where each defendant is liable only

noneconomic damages. Cal. Civ. Code 1431 and 1431.2

for its proportionate share, partial settlement does not affect

(1986); Evangelatos v. Superior Court, 753 P.2d 585 (Cal. 1988).

the remaining defendants liability. Buttram v. Owens-Corning

The defendants liability is offset by the plaintiffs comparative

Fiberglas Corp., 941 P.2d 71 (Cal. 1997).

fault. Diaz v. Carcamo, 253 P.3d 535, 540 (Cal. 2011). In cases

Colorado
VARIABLE LIABILITY

In nearly all Colorado actions, a rule of several (and not joint)

In cases where joint and several liability applies, the defendants

liability applies. Colo. Stat. 13-21-111.5 (1987); Vickery v.

are entitled to contribution from one another for any portion

Evans, 266 P.3d 390 (Colo. 2011). An exception is in place

of the damages they pay that is beyond their own share. Colo.

for defendants who act in concert. Colo. Stat. 13-21-

Stat. 13-50.5-102 (1989); Fibreboard Corp. v. Fenton, 845

111.5(1987); Resolution Trust Corp. v. Heiserman, 898 P.2d

P.2d 1168 (Colo. 1993).

1049 (Colo. 1995).

In case of a partial settlement, the non-settling defendants

In Colorado, the defendants liability is offset for the plaintiffs

are entitled to a setoff against the entirety of damages by the

comparative negligence. Colo. Stat. 13-21-111(1987);

pro rata share of the settling tortfeasors liability. Colo. Stat.

Kussman v. Denver, 706 P.2d 776 (Colo. 1985). Further, where

13-50.5-105 (1986); Smith v. Zufelt, 880 P.2d 1178 (Colo. 1994).

the plaintiffs action contributed to his own damages to a

greater degree than the defendants combined negligence,
recovery is barred altogether. B.G.s, Inc. v. Gross, 23 P.3d 691
(Colo. 2001).
Where the damages are punitive, there is no offset for the
plaintiffs comparative share of the fault. Union Pacific Railroad
Co. v. Martin, 209 P.3d 185 (Colo. 2009).

50-state survey
Connecticut
Variable Liability

Connecticut defendants in negligence cases are subject to

Where the plaintiffs negligence is an issue, the plaintiff

several-only liability. Conn. Stat. 52-572h (1986); Collins v.

may recover only if his negligence is not greater than the

Colonial Penn Ins. Co., 778 A.2d 899 (Conn. 2001). Joint and

defendants combined share of the fault. Conn. Stat. 52-572h

several liability remains the rule for actions that do not sound

(1986); Juchniewicz v. Bridgeport Hosp., 914 A.2d 511 (Conn.

in negligence. Conn. Stat. 52-572h (1986); Allard v. Liberty

2007). Where this is true, the plaintiffs recovery is still reduced

Oil Equip. Co. Inc., 756 A.2d 237 (Conn. 2000). Where the

by the percentage of his negligence. Conn. Stat. 52-572h;

plaintiff is unable to collect from a defendant, however, the

Fleming v. Garnett, 646 A.2d 1308 (Conn. 1994).

uncollectable portion of his damages may be reapportioned

In case of a settlement with fewer than all defendants,

among the remaining defendants in the same proportion as

the judgment is reduced by the proportion of the settling

their share of liability. Conn. Stat. 52-572h (1986); Babes

defendants fault. Conn. Stat. 52-572h (1986); Carlson v.

v. Bennett, 721 A.2d 511 (Conn. 1998). In case of such

Waterbury Hosp., 905 A.2d 654 (Conn. 2006).

reapportionment, the right of contribution exists. Conn. Stat.

52-572h (1986).

Delaware
Pure Joint and Several Liability

In Delaware, joint and several liability applies, so a plaintiff may

In case of a partial settlement, the non-settling tortfeasors

recover the entirety of his damages from any one of multiple

liability is reduced by the amount of the settlement or by what

tortfeasors. 10 Del. Code 6301 (1953); Blackshear v. Clark,

would have been the settling tortfeasors pro rata share of the

391 A.2d 747 (Del. 1978). The joint and several tortfeasors

judgment, whichever is greater. 10 Del. Code 6304 (1953);

have a right of contribution against each other. 10 Del. Code

Medical Center v. Mullins, 637 A.2d 6 (Del. 1994).

6302 (1953); Reddy v. PMA Insurance Co., 20 A.3d 1281

(Del. 2011).
Where a Delaware plaintiff is more than 50 percent at fault for
his own injuries and where the defendants conduct was plain
negligence (rather than recklessness), the plaintiffs recovery
is barred. Brittingham v. Layfield, 962 A.2d 916 (Del. 2008).
Where the plaintiff bears no more than 50 percent of the fault,
his recoverable damages are limited proportionately.

Joint and Several Liability

Florida
Variable Liability

Florida repealed the doctrine of joint and several liability

Where the plaintiff settles with some (but not all) defendants,

in negligence cases and replaced it with a system of pure

the settling tortfeasor waives its right to contribution. Fla. Stat.

comparative fault. Fla. Stat. 768.81 (2006); Merrill Crossings

768.31 (2006). The remaining tortfeasors are entitled to a

Assocs. v. McDonald, 705 So.2d 560 (Fla. 1997). The pure

setoff for the settlement amount; however, for noneconomic

several liability rule does not apply to a host of actions,

damages this right is triggered only if the settling defendant

including those concerning environmental torts, intentional

is assessed some portion of the fault. DAngelo v. Fitzmaurice,

torts and transactions in securities. Fla. Stat. 768.81 (2006);

863 So.2d 311 (Fla. 2003).

Smith v. Department of Ins., 507 So.2d 1080 (Fla. 1987).

Any fault of the plaintiff proportionally diminishes the amount
that he is entitled to recover. Fla. Stat. 768.81(2)(2011); Am.
Home Assur. Co. v. Natl R.R. Passenger Corp., 908 So.2d 459
(Fla. 2005).

Georgia
Pure Several Liability

Liability is purely several in Georgia. Ga. Code 51-12-33(b)

There is no right to contribution between the codefendants,

(1987); Cavalier Convenience, Inc. v. Sarvis, 699 S.E.2d 104

as each is liable only for its proportionate share. Ga. Code

(Ga. 2010). Where the plaintiff contributed to his own loss but

51-12-33 (2005); McReynolds v. Krebs, 725 S.E.2d 584 (Ga.

the plaintiffs fault accounts for less than 50 percent of the fault,

2012). Any settling tortfeasors fault is considered in assessing

total liability is reduced by the plaintiffs share. Ga. Code

the non-settling tortfeasors portion of fault, but no setoff is

51-12-33 (2005); Merry v. Robinson, 313 Ga. App. 321 (Ga. Ct.

permitted for the settlement amount. McReynolds v. Krebs,

App. 2011). Where the plaintiffs share of the fault is more than

725 S.E.2d 584 (Ga. 2012).

50 percent, the plaintiff may not recover. Ga. Code 51-12-33

(2005); Bailey v. Annistown Rd. Baptist Church, 301 Ga. App.
677 (Ga. Ct. App. 2009).

50-state survey
Hawaii
Hybrid and Variable Liability

Hawaii replaced joint and several liability with several-only

A plaintiff who contributed to his own injuries may recover for

liability but it did so with significant exceptions and limitations.

his loss, less the pro rata share that is his own fault, provided

Haw. Stat. 663-10.9 (1999); Taylor-Rice v. State, 94 P.3d 659

that his fault does not outweigh the defendants cumulative

(Haw. 2004). Joint and several liability remains the rule for

share of fault. Haw. Stat. 663-31 (1984); Steigman v.

noneconomic damages in personal injury cases, all damages

Outrigger Enterprises, 267 P.3d 1238 (Haw. 2011). Where the

in intentional tort cases, strict liability cases, environmental

plaintiffs fault is greater than the defendants fault, however,

damage cases and lawsuits having to do with the maintenance

the plaintiff may not recover. Haw. Stat. 663-31 (1984); Ozaki

of highways. Haw. Stat. 663-10.9 (1999); Kienker v. Bauer,

v. Assn of Apartment Owners of Discovery Bay, 954 P.2d 644

129 P.3d 1125 (Haw. 2006). In cases where one of these

(Haw. 1998).

exceptions applies, joint and several liability is the rule, and

Where there is a partial settlement, there is also a right to

tortfeasors are entitled to contribution from one another for

a setoff, in the amount of the settlement, against any sums

any payment they made beyond their proportionate share.

payable to the plaintiff by any remaining joint tortfeasors.

Haw. Stat. 663-12 (1984); Gump v. Wal-Mart Stores, Inc., 5

Haw. Stat. 663-15.5 (2001); Troyer v. Adams, 77 P.3d 83

P.3d 407 (Haw. 2000).

(Haw. 2003).

Idaho
Variable Liability

Idaho abolished the common-law doctrine of joint and several

Partial settlement by a jointly and severally liable tortfeasor

liability for all cases except those involving defendants acting

reduces the remaining tortfeasors liability by the settlement

in concert and cases where liability is vicarious. Idaho Code

amount. Idaho Code 6-805 (1991); Quick v. Crane, 727 P.2d

6-803 (1971); Jones v. HealthSouth Treasure Valley Hosp., 206

1187 (Idaho 1986). Where the defendants are only jointly (and

P.3d 473 (Idaho 2009). Tortfeasors have a right to contribution

not severally) liable, partial settlement has no effect on the

from each other for any payment beyond their proportionate

remaining defendants liability. Idaho Code 6-805 (1991);

share, provided that joint and several liability applies. Idaho

Tuttle v. Wayment Farms, 952 P.2d 1241 (Idaho 1998).

Code 6-803 (1971); Horner v. Sani-Top, Inc., 141 P.3d 1099

(Idaho 2006).
Where the plaintiff is 50 percent or more at fault, he may not
recover. Idaho Code 6-801 (1971); Ross v. Coleman Co.,
141 P.3d 1099 (Idaho 1988). Where the plaintiff is at fault to
some degree that is less than 50 percent, he may recover his
damages less the percentage that is attributable to his own
actions. Idaho Code 6-801 (1971); Salinas v. Vierstra, 695 P.2d
369 (Idaho 1985).

10

Joint and Several Liability

Illinois
Variable Liability

Illinois defendants are jointly and severally liable for damages.

Damages are discounted by the plaintiffs comparative

735 Il. Comp. Stat. 5/2-1117 (1995); Miller v. Rosenberg,

negligence. 735 Il. Comp. Stat. 5/2-1116 (1995); Coney

749 N.E.2d 946 (Ill. 2001). The exception to this rule is for

v. J.L.G. Industries, 454 N.E.2d 197 (Ill. 1983). Where the

defendants who bear less than a quarter of the plaintiffs

plaintiff is more than 50 percent at fault, however, he may not

own liability. With some exclusions (such as for medical

recover at all. 735 Il. Comp. Stat. 5/2-1116 (1995); Burke v. 12

malpractice cases) these defendants remain liable jointly

Rothschilds Liquor Mart, 593 N.E.2d 522 (Ill. 1992).

and severally for plaintiffs medical and related expenses but

In case of a partial settlement, the non-settling tortfeasors

are only severally liable for the remainder of the plaintiffs

liability is reduced by the amount of the settlement. 740 Il.

damages. 735 Il. Comp. Stat. 5/2-1117 (1995); Unzicker v.

Comp. Stat. 100/2 (1987); Board of Trustees v. Coopers &

Kraft Food Ingredients Corp., 783 N.E.2d 1024 (Ill. 2002).

Lybrand, 803 N.E.2d 460 (Ill. 2003).

The right of contribution exists among jointly and severally

liable tortfeasors. 740 Il. Comp. Stat. 100/2 (1987); People v.
Brockman, 574 N.E.2d 626 (Ill. 1991).

Indiana
Variable Liability

Under Indianas Comparative Fault Act, defendants are

In addition, a settlement between plaintiff and one defendant

severally liable for damages unless the action sounds in

does not have an effect on the other tortfeasors. Should the

medical malpractice. Ind. Code 34-51-2-8 (1985); Control

settlement amount be greater than the settling defendants

Techniques, Inc. v. Johnson, 762 N.E.2d 104 (Ind. 2002).

liability, the windfall (or, conversely, the loss) is the plaintiffs;

non-settling defendants do not receive a credit for anothers

If the plaintiff is more than 50 percent at fault, he is barred

settlement. R.L. McCoy v. Jack, 772 N.E.2d 987 (Ind. 2002).

from recovering damages. Ind. Code 34-51-2-8 (1985); TRW

Vehicle Safety Sys. v. Moore, 936 N.E.2d 201 (Ind. 2010).
Otherwise, damages are reduced pro rata by the plaintiffs
percentage of fault. Ind. Code 34-51-2-5 (1985); Green v.
Ford Motor Co., 942 N.E.2d 791 (Ind. 2011).
Where each party is liable only for their percentage of fault,
there is no right of contribution among Indiana tortfeasors. Ind.
Code 34-51-2-12 (1998); Simon v. United States, 805 N.E.2d
798 (Ind. 2004).

11

50-state survey
Iowa
Hybrid and Variable Liability

In Iowa, joint and several liability applies but only to defendants

In all cases, the defendants liability is offset by the plaintiffs

who are 50 percent or more at fault and only with respect to

share of negligence. Iowa Code 668.3 (1984); Mulhern v.

the plaintiffs economic damages. Iowa Code 668.4 (1984);

Catholic Health Initiatives, 799 N.W.2d 104 (Iowa 2011). In no

Estes v. Progressive Classic Ins., 809 N.W.2d 111 (Iowa 2012).

event may the plaintiff recover if he is more than 50 percent

Where liability is joint and several, a defendant paying more

at fault. Iowa Code 668.3 (1984); Franklin v. Andrews, 595

than its proportionate share is entitled to contribution from the

N.W.2d 488 (Iowa 1999).

other defendants. Iowa Code 668.5 (1984); Wilson v. Farm

In case of a partial settlement, the non-settling tortfeasors

Bureau Mut. Ins., 770 N.W.2d 324 (Iowa 2009).

liability is reduced by the settling defendants percentage share

of liability. Iowa Code 668.7 (1984); Thomas v. Solberg, 442
N.W.2d 73 (Iowa 1989).

Kansas
Pure Several Liability

In Kansas, each party found liable is responsible to pay only its

The defendants liability is offset by the plaintiffs share of

portion of the awarded damages. Kan. Stat. 60-258a (1974);

the fault. Kan. Stat. 60-258a (1974); Gaulden v. Burlington

Brown v. Keill, 580 P.2d 867, 874 (Kan. 1978). Since defendants

Northern, Inc., 654 P.2d 383 (Kan. 1982). Where the plaintiffs

do not pay anothers share of the damages, there is no right

negligence is of equal or greater proportion than the

of contribution between them. Mathis v. TG&Y, 751 P.2d 136

defendants negligence, however, the plaintiff may not recover

(Kan. 1988). For the same reason, a partial settlement has no

at all. Kan. Stat. 60-258a (1974); Wilson v. Kansas Power &

effect on the liability of the remaining tortfeasors. Dodge City

Light Co., 657 P.2d 546 (Kan. 1983).

Implement, Inc. v. Board of County Commissioners, 205 P.3d

1265 (Kan. 2009).

Kentucky
Pure Several Liability

Kentucky has also replaced joint and several liability with

The plaintiffs negligence is considered in fault allocation under

several-only liability. Ky. Stat. 411.182 (1988); Degener v. Hall

the Kentucky statutory scheme: the defendants liability is

Contracting, 27 S.W.3d 775 (Ky. 2000). The right of contribution

reduced by the plaintiffs share of the fault. Ky. Stat. 411.182

between codefendants was extinguished with joint and several

(1988); Koching v. International Armament Corp., 772 S.W.2d

liability. Dix & Assocs. Pipeline Contractors v. Key, 799 S.W.2d

634 (Ky. 1989). Any settling defendants share is similarly

24 (Ky. 1990).

considered and used to reduce the remaining defendants

liability. Ky. Stat. 411.182 (1988); Owens Corning Fiberglass
Corp. v. Parrish, 58 S.W.3d 467 (Ky. 2001).

12

Joint and Several Liability

Louisiana
Variable Liability

Louisiana defendants are generally severally liable. La. Code

Regardless of the type of liability, all Louisiana defendants are

Art. 2324 (1979); Johnson v. Morehouse Gen. Hosp., 63 So.3d

entitled to a setoff for the percentage share of fault of any

87 (La. 2011). There is no right to contribution among severally

settled party. Farbe v. Casualty Reciprocal Exch., 765 So.2d

liable defendants as each is liable to pay only its share of the

994 (La. 2000).

plaintiffs damages. Cole v. Celotex Corp., 599 So.2d 1058

(La. 1992).
Defendants who are found to have conspired to commit an
intentional tort, however, are jointly and severally liable to the
plaintiff. La. Code Art. 2324 (1979); Ross v. Conoco, Inc., 828
So.2d 546 (La. 2002). Further, while severally liable defendants
liability is offset by the plaintiffs percentage of fault, this
setoff is unavailable to those defendants who are liable for an
intentional tort. La. Code Art. 2323 (1979); Landry v. Bellanger,
851 So.2d 943 (La. 2003).

Maine
Pure Joint and Several Liability

In Maine, all defendants are jointly and severally liable to

If a partial settlement is reached, the amount of that settlement

the plaintiff for the full amount of a judgment. 14 Ma. Stat.

is deducted from the plaintiffs judgment as against the

156 (1965); Peerless Div. v. United States Special Hydraulic

remaining defendants. Me. Stat. 163 (1965); Hoitt v. Hall, 661

Cylinders Corp., 742 A.2d 906 (Me. 1999). The right of

A.2d 669 (Me. 1995).

contribution exists among these jointly and severally liable

tortfeasors. Peerless Ins. Co. v. Progressive Ins. Co., 822 A.2d
1125 (Me. 2003).
The defendants liability for damages is reduced by any
negligence attributable to the plaintiff. 14 Ma. Stat. 156
(1965); Austin v. Raybestos-Manhattan, 471 A.2d 280 (Me.
1984). Where the plaintiff is as much at fault as the defendants,
however, the plaintiff may not recover at all. 14 Ma. Stat. 156
(1965); Amica Mut. Ins. Co. v. Estate of Pecci, 953 A.2d 369
(Me. 2008).

13

50-state survey
Maryland
Pure Joint and Several Liability

In tort cases, Maryland follows the doctrine of pure joint and

In a partial settlement, the judgment against non-settling

several liability. Md. Code 3-1401 (1973); Owens-Illinois,

tortfeasors is reduced by the amount of the settlement. Md.

Inc. v. Cook, 872 A.2d 969 (Md. 2005). There is a right to

Code 3-1404 (1973); Scapa Dryer Fabrics v. Saville, 16 A.3d

contribution among joint tortfeasors for amounts paid beyond

159 (Md. 2011).

their proportionate share of the judgment. Md. Code 3-1402

(1973); Parler & Wobber v. Miles & Stockbridge, 756 A.2d 526
(Md. 2000).
Significantly, a Maryland plaintiff who contributes to his own
injuries is barred from all recovery. Harrison v. Montgomery
County Bd. of Ed., 456 A.2d 894 (Md. 1983). The exception
to this rule lies in strict liability cases, in which a plaintiff who
contributes to his own injuries may still recover his damages.
Ellsworth v. Sherne Lingerie, 495 A.2d 348 (Md. 1985).

Massachusetts
Pure Joint and Several Liability

Massachusetts tort defendants are jointly and severally liable.

In case of a partial settlement, the non-settling tortfeasors

Ann. L. Mass. Ch. 231B, 1 (1962); OConnor v. Raymark

liability is reduced by the settlement amount. Ann. L. Mass. Ch.

Industries, 518 N.E.2d 510 (Mass. 1988). Defendants share of

231B, 4 (1962); Boston Edison Co. v. Tritsch, 346 N.E.2d 901

liability is divided equally, regardless of their degree of fault.

(Mass. 1976).

Ann. L. Mass. Ch. 231B, 1 (1962); Zeller v. Cantu, 478 N.E.2d

930 (Mass. 1985). If they pay more than their share, they are
entitled to contribution from defendants who paid less. Ann.
L. Mass. Ch. 231B, 1 (1962); Shantigar Found. v. Bear Mt.
Builders, 804 N.E.2d 324 (Mass. 2004).
The plaintiffs comparative negligence reduces the defendants
liability. Ann. L. Mass. Ch. 231, 85 (1973); Mirageas v.
Massachusetts Bay Transp. Authority, 465 N.E.2d 232 (Mass.
1984). Where the plaintiffs relative degree of fault is greater
than the defendants relative degree of fault, the plaintiff
may not recover at all. Ann. L. Mass. Ch. 231, 85 (1973);
DeSanctis v. Lynn Water & Sewer Commn, 666 N.E.2d 1292
(Mass. 1996).

14

Joint and Several Liability

Michigan
Variable Liability

Generally, any Michigan tort defendant is severally liable for

The right to contribution among joint tortfeasors exists. Gerling

damages attributed to its percentage of fault. Mich. Comp. L.

Konzern Allgemeine Versicherungs AG v. Lawson, 693 N.W.2d

600.6304 (1995); Romain v. Frankenmuth Mutual. Ins., 762

149 (Mich. 2005).

N.W.2d 911 (Mich. 2009). Significant exceptions exist, however;

When a partial settlement is reached in cases where joint and

most notably, joint and several liability remains the rule in

several liability is the rule, the non-settling defendants liability

medical malpractice actions. Mich. Comp. L. 600.6304 (1995);

is offset by the amount of the settlement. Kaiser v. Allen, 693

Driver v. Naini, 802 N.W.2d 311 (Mich. 2011).

N.W.2d 149 (Mich. 2008).

If the plaintiff is partially at fault in his resulting damages, then

his recovery is limited to exclude the portion of his loss that is
attributable to him. Mich. Comp. L. 600.6304 (1995); Craig v.
Larson, 439 N.W.2d 899 (Mich. 1989).

Minnesota
Variable Liability

Minnesota largely follows the several-only liability model.

Where there is a partial settlement, the settlement amount is

Minn. Stat. 604.02 (2003); Staab v. Diocese of St. Cloud, 813

deducted from the jurys award after apportionment, so that

N.W.2d 68 (Minn. 2012). Joint and several liability remains the

only in cases of joint and several liability does the non-settling

rule, however, for defendants who are more than 50 percent at

tortfeasor benefit from the settlement of another party. Minn.

fault, where there is collusion among the defendants, and for

Stat. 604.01 (2003); Rambaum v. Swisher, 435 N.W.2d 19

intentional and environmental tort cases. Minn. Stat. 604.02

(Minn. 1989).

(2003); Staab v. Diocese of St. Cloud, 813 N.W.2d 68 (Minn.

2012). In cases of joint and several liability, any defendant
that pays more than its proportionate share is entitled to
contribution. Tolbert v. Gerber Indus., Inc., 255 N.W.2d 362
(Minn. 1977).
Where the plaintiff is at fault and his fault is less than the
defendants fault, the defendants liability is reduced
proportionately. Minn. Stat. 604.02 (2003); Moorhead
Economic Development Authority v. Anda, 789 N.W.2d 860
(Minn. 2010).

15

50-state survey
Mississippi
Variable Liability

Mississippi generally follows the doctrine of several liability.

Negligence by the plaintiff does not bar recovery but it does

Miss. Code 85-5-7 (1989); City of Ellisville v. Richardson, 913

diminish the amount of damages by the proportion of the

So.2d 973 (Miss. 2005). However, defendants are jointly and

plaintiffs fault. Miss. Code 11-7-15 (1911); Coho Resources,

severally liable if they act on a common plan. Miss. Code

Inc. v. Chapman, 913 So.2d 899 (Miss. 2005).

85-5-7 (1989); J. B. Hunt Transport v. Forrest General Hosp.,

In case of a partial settlement, the settlement amount is

34 So.3d 1171 (Miss. 2010). When joint and several liability

deducted from the plaintiffs award prior to apportionment.

applies, defendants paying more than their proportionate

Mack Trucks, Inc. v. Tackett, 841 So.2d 1107 (Miss. 2003).

share are entitled to contribution. Miss. Code 85-5-7 (1989);

DePriest v. Barber, 798 So.2d 456 (Miss. 2001).

Missouri
Variable Liability

In Missouri, joint and several liability applies only to defendants

The plaintiffs negligence, if any, reduces the defendants

who are 51 percent or more at fault; are employees of

liability by the degree of the plaintiffs fault. Gustafson v.

another partyor are liable by operation of the Federal

Benda, 661 S.W.2d 11 (Mo. 1983).

Employers Liability Act. Mo. Stat. 537.067 (2005). For all

If the plaintiff settles with some but not all defendants, the right

other defendants, Missouri applies several liability. Mo. Stat.

to contribution is extinguished and the judgment against the

537.067 (2005); Burg v. Dampier, 346 S.W.3d 343 (Mo. Ct.

remaining defendants is offset by the settlement amount. Mo.

App. W. Dist. Div. 2 2011).

Stat. 537.060 (1939); Fast v. Marston, 282 S.W.3d 346 (Mo.

2009).

Where joint and several liability applies, defendants

paying more than their proportionate share are entitled to
contribution. Mo. Stat. 537.060 (1939); Missouri Pacific
Railroad Co. v. Whitehead & Kales Co., 566 S.W.2d 466
(Mo. 1978).

16

Joint and Several Liability

Montana
Variable Liability

Montana follows the rule of joint and several liability for

The plaintiffs negligence, provided it is less than the

defendants who are most at fault. Mont. Code 27-1-703

defendants share of the fault, proportionately diminishes his

(1979); Deere & Co. v. District Court, 730 P.2d 396 (Mont.

right to recovery. Mont. Code 27-1-70 (1987). Otherwise,

1986). Liability is several only for defendants whose negligence

the plaintiff may not recover. Payne v. Knutson, 99 P.3d 200

is 50 percent or less, provided they did not act in concert with

(Mont. 2004).

others. Mont. Code 27-1-703 (1979); Newville v. Department

In case of a partial settlement, the right to contribution is

of Family Services, 883 P.2d 793 (Mont. 1994). There is a right

extinguished and the remaining defendants liability is reduced,

to contribution from another defendant where a party pays

using the pro tanto approach, by the amount of the settlement.

more than its proportionate share of the plaintiffs damages.

Hulstine v. Lennox Indus., 237 P.3d 1277 (Mont. 2010).

Mont. Code 27-1-703 (1979); Consolidated Freightways v.

Osier, 605 P.2d 1076 (Mont. 1979).

Nebraska
Hybrid and Variable Liability

Generally, for economic damages, Nebraska defendants

Only where the plaintiffs negligence is less than 50

face joint and several liability. Neb. Stat. 25-21,185.10

percent may a plaintiff recover. In these cases, the plaintiffs

(1992); Haag v. Bongers, 589 N.W.2d 318 (Neb. 1999). For

comparative negligence proportionally diminishes the amount

noneconomic damages, liability is several only. Neb. Stat.

to which the plaintiff is entitled. Neb. Stat. 25-21,185.09

25-21,185.10 (1992); Maxwell v. Montey, 631 N.W.2d 455

(1992); Shipler v. General Motors, 710 N.W.2d 807 (Neb. 2006).

(Neb. 2001). An exception exists for defendants acting in

If the plaintiff settles with some, but not all, defendants,

concert with each other: their liability is joint and several

the judgment for the remaining jointly and severally liable

regardless of the type of damages. Neb. Stat. 25-21,185.10

defendants is reduced by the pro rata share of the settled

(1992). The right to contribution exists for jointly and severally

party. Neb. Stat. 25-21,185.11 (1992); Tadros v. City of

liable parties that pay more than their share. Estate of Powell

Omaha, 735 N.W.2d 377 (Neb. 2007).

ex rel. Powell v. Montange, 765 N.W.2d 496 (Neb. 2009).

17

50-state survey
Nevada
Variable Liability

In most cases, Nevada defendants liability is several only.

A comparatively negligent plaintiff may recover the portion of

Nev. Stat. 41.141 (1973); Buck v. Greyhound Lines, 783 P.2d

his damages that is not attributable to his own fault, provided

437 (Nev. 1989). Significant exceptions exist, however. Joint

that his negligence is less than the combined negligence of the

and several liability remains the rule for cases involving strict

defendants. Nev. Stat. 41.141 (1973); Cromer v. Wilson, 225

liability, environmental torts and cases where the defendants

P.3d 788 (Nev. 2010).

act in concert. Nev. Stat. 41.141 (1973); GES, Inc. v. Corbitt,

If a defendant settles with the plaintiff, the plaintiffs recovery

21 P.3d 11 (Nev. 2001). Should a jointly and severally liable

from the other defendants is reduced by the amount of the

defendant pay more than its proportionate share, it generally

settlement and the right to contribution is extinguished. Nev.

has a right to contribution from codefendants. Nev. Stat.

Stat. 41.141 (1973); Nev. Stat. 17.245 (1973); Banks v.

17.225 (1973); Van Cleave v. Gamboni Constrution, 706 P.2d

Sunrise Hosp., 102 P.3d 52 (Nev. 2004).

845 (Nev. 1985). There is no right to contribution, however, in

cases involving intentional torts. Nev. Stat. 17.255 (1973);
Evans v. Dean Witter Reynolds, Inc., 5 P.3d 1043 (Nev. 2000).

New Hampshire
Variable Liability

New Hampshire applies joint and several liability to defendants

Fault by the plaintiff does not bar his recovery provided that

who are 50 percent or more at fault, but applies several-only

it is not greater than the defendants fault, but the plaintiffs

liability for defendants whose fault is less than 50 percent.

damages are reduced by the portion of the fault attributed

N.H. Stat. 507:7-e (1997); Rodgers v. Colbys Ol Place, 802

to the plaintiff. N.H. Stat. 507:7-d (1997); Ocasio v. Federal

A.2d 1159 (N.H. 2002). Liability is joint and several, however,

Express, 33 A.3d 1139 (N.H. 2011).

regardless of the parties percentage of fault if the defendants

If the plaintiff settles with some but not all tortfeasors in a

acted in concert. N.H. Stat. 507:7-e (1997); Gouldreault v.

case where the remaining defendants liability is joint and

Kleeman, 965 A.2d 1040 (N.H. 2009).

several, the settlement amount is deducted from the total

A defendant who pays more than its proportionate share

damages award. Otherwise, the remaining defendants pay

is entitled to contribution. N.H. Stat. 507:7-e (1997); Pike

their proportionate share of the judgment, irrespective of the

Industries v. Hiltz Construction, 718 A.2d 236 (N.H. 1998). If a

settlement. N.H. Stat. 507:7-h (1997); N.H. Stat. 507:7-i

judgment for contribution is uncollectable from a defendant,

(1997); Nilsson v. Bierman, 839 A.2d 25 (N.H. 2003).

the amount of that judgment is reallocated among the

remaining defendants in accordance with their proportionate
share of the plaintiffs damages. N.H. Stat. 507:7-e (1997);
Rodgers v. Colbys Ol Place, 802 A.2d 1159 (N.H. 2002).

18

Joint and Several Liability

New Jersey
Variable Liability

New Jersey draws a distinction between defendants based

A comparatively negligent plaintiff may recover his

on their degree of fault: several only liability is applied to a

proportionately reduced damages only if his negligence does

defendant less than 60 percent at fault, while a defendant 60

not exceed the degree of fault of the defendant from whom

percent or more at fault is liable jointly and severally. N.J. Stat.

the plaintiff seeks to collect. N.J. Stat. 2A:15-5.3 (1995);

2A:15-5.3 (1995); Gennari v. Weichert Co., 691 A.2d 350

Reyes v. Egner, 991 A.2d 216 (N.J. 2010).

(N.J. 1997). If judgment is uncollectable from a defendant,

If a partial settlement is reached, the remaining defendants

the plaintiff may recover the uncollectable amount of his

liability is reduced on a pro rata basis. N.J. Stat. 2A:15-5.3

damages from solvent defendants who are responsible to

(1995); Steele v. Kerrigan, 689 A.2d 685 (N.J. 1997).

pay their proportionate share of the unrecoverable award.

N.J. Stat. 2A:15-5.3 (1995); Brodsky v. Grinnell Haulers, 853
A.2d 940 (N.J. 2004). A defendant who pays more than its
percentage share is entitled to seek contribution from the other
defendants. N.J. Stat. 2A:15-5.3 (1995); Steele v. Kerrigan,
689 A.2d 685 (N.J. 1997).

New Mexico
Variable Liability

The general rule in New Mexico is several liability. N.M. Stat.

The plaintiff contributing to his own damages does not bar

41-3A-1 (1987); Herrera v. Quality Pontiac, 73 P.3d 181

his right to recover, but it does diminish his entitlement on

(N.M. 2003). Certain exceptions exist, however, including for

a proportionate basis. N.M. Stat. 41-3A-1 (1987); Barth v.

intentional tortfeasors, vicariously liable defendants, the first of

Coleman, 878 P.2d 319 (N.M. 1994).

successive tortfeasors, defendants named in products liability

In case of a partial settlement, the settlement amount is

cases and cases involving inherently dangerous activities. Lewis

deducted from the total damages in joint and several liability

v. Samson, 35 P.3d 972 (N.M. 2001). The right of contribution

cases only. N.M. Stat. 41-3-4 (1987); McConal Aviation v.

exists among joint tortfeasors. N.M. Stat. 41-3-2 (1987);

Commercial Aviation Insurance, 799 P.2d 133 (N.M. S. 1990).

Payne v. Hall, 137 P.3d 599 (N.M. 2006). Of course, severally

liable defendants who pay only their proportionate share are
not entitled to contribution. Otero v. Jordan Restaurant, 922
P.2d 569 (N.M. 1996).

19

50-state survey
New York
Hybrid and Variable Liability

In New York, the general rule is joint and several liability.

The plaintiffs fault, if any, diminishes the amount of damages

Cooney v. Osgood Machinery, 612 N.E.2d 277 (N.Y. 1993).

he is entitled to recover by the degree of his own fault but

Exceptions exist, however. Personal injury defendants who

it does not bar the plaintiffs action. N.Y. Civ. Prac. L. and R.

are less than 50 percent liable face several-only liability for

1411 (1975); Trupia v. Lake George Central School Dist., 927

the plaintiffs noneconomic damages. N.Y. Civ. Prac. L. and R.

N.E.2d 547 (N.Y. 2010).

1601 (1986); Cole v. Mandell Food Stores, 710 N.E.2d 244

A partial settlement extinguishes the right to contribution for

(N.Y. 1999). Intentional acts, collusion and recklessness always

and from the settling tortfeasor. N.Y. Gen. Obl. L. 15-108

trigger joint and several liability. N.Y. Civ. Prac. L. and R.

(1972); Glaser v. M. Fortunoff of Westbury Corp., 524 N.E.2d

1602 (1986); Chianese v. Meier, 774 N.E.2d 722 (N.Y. 2002). A

413 (N.Y. 1988). In case of such a partial settlement, the

host of other exceptions also exist that are intended to yield

remaining defendants are entitled to a setoff of the total

to the rules of substantive areas of law, including Labor Law

damages by the greater of the pro rata or the pro tanto

and Business Corporation Law. N.Y. Civ. Prac. L. and R. 1602

approach. Pollicina v. Misericordia Hospital, 624 N.E.2d 974

(1986); In re Seagroatt Floral Co., 583 N.E.2d 287 (N.Y. 1991).

(N.Y. 1993).

Where a tortfeasor has paid more than its proportionate

share, it is entitled to contribution. N.Y. Civ. Prac. L. and R.
1401 (1986); Sommer v. Fed. Signal Corp., 593 N.E.2d 1365
(N.Y. 1992).

North Carolina
Pure Joint and Several Liability

North Carolina follows the rule of joint and several liability.

In case of a partial settlement, the non-settling defendants

N.C. Stat. 1B-2 (1967); Yates v. New South Pizza, 330 N.C.

liability is reduced by the settlement amount. N.C. Stat. 1B-4

790 (N.C. 1992). Defendants paying more than their share of

(1967); Brown v. Flowe, 507 S.E.2d 894 (N.C. 1998).

the plaintiffs loss are entitled to contribution unless they have

committed an intentional tort. N.C. Stat. 1B-2 (1967); Teachy
v. Coble Dairies, 293 S.E.2d 182 (N.C. 1982).
North Carolina generally follows the rules of pure contributory
negligence: if the plaintiffs failure to use ordinary care was
a proximate cause of his injury, he may not recover. Champs
Convenience Stores. v. United Chemical, 406 S.E.2d 856 (N.C.
1991). The exception to this rule lies in cases involving willful
or wanton conduct by the defendants or where the defendants
had the last clear chance to avoid the plaintiffs injury.
VanCamp v. Burgner, 402 S.E.2d 375 (N.C. 1991).

20

Joint and Several Liability

North Dakota
Variable Liability

North Dakota has abolished joint and several liability for almost

Negligence by the plaintiff is a bar to recovery only if it

all cases. N.D. Code 32-03.2-02 (1987); Kavadas v. Lorenzen,

exceeds the fault of others but even where it does not, his

448 N.W.2d 219 (N.D. 1989). The exceptions to this rule are for

recovery is reduced by the degree of his own fault. N.D. Code

cases where the defendants act in concert with one another or

32-03.2-02 (1987); M.M. v. Fargo Public School District No. 1,

otherwise aid or ratify the tort. N.D. Code 32-03.2-02 (1987);

815 N.W2d 273 (N.D. 2012).

Target Stores v. Automated Maintenance Services, 492 N.W.2d

In case of a partial settlement, the settling tortfeasors pro rata

899 (N.D. 1992).

share is deducted from the damages for which the non-settling

Contribution among the defendants may only be had if there is

defendants are liable. N.D. Code 32-35-04 (1987); Hoerr

joint and several liability. N.D. Code 32-03.2-02 (1987); Pierce

v. Northfield Foundry & Machine Co., 376 N.W.2d 323

v. Shannon, 607 N.W.2d 878 (N.D. 2000).

(N.D. 1985).

Ohio
Hybrid and Variable Liability

An Ohio defendant who is more than 50 percent liable for

A tortfeasor who is jointly and severally liable for damages

the plaintiffs loss is jointly and severally liable for economic

and has paid more than its proportionate share is entitled to

damages. Ohio Code 2307.22 (2003); Gurry v. C.P., 972 N.E.

contribution. Ohio Code 2307.25 (2003); Hoffman v. Fraser,

154, (Oh. 2012). Defendants liable for intentional torts are also

__ N.E.2d ___, 2011 Ohio 2200 (Oh. Ct. App., Geauga County

jointly and severally liable for the plaintiffs economic losses.

May 6, 2011). Settlement extinguishes the right to contribution

Ohio Code 2307.22 (2003); Romig v. Baker Hi-Way Express,

and generally reduces, by the amount of the settlement, the

__ N.E. __, 2012 Ohio 321 (Ohio Ct. App., Tuscarawas County

plaintiffs right to recover from the non-settling defendants.

Jan. 27, 2012). Several-only liability applies to noneconomic

Ohio Code 2307.28 (2003); Spalla v. Fransen, 936 N.E.2d 559

losses, regardless of the defendants percentage of fault or the

(Oh. Ct. App. Geauga County July 23, 2010). No setoff may be

type of tort. Ohio Code 2307.22 (2003); Waverly City Sch.

had, however, if the defendant is liable for an intentional tort.

Dist. v. Triad Architects, __ N.E. __, 2008 Ohio 6917 (Oh. Ct.

Ohio Code 2307.25 (2003); Eysoldt v. Proscan Imaging, __

App., Franklin County Dec. 30, 2008).

N.E. __, 2011 Ohio 6740 (Oh. Ct. App., Hamilton County Dec.
28, 2011).

If the plaintiff (by his own negligence) is responsible for his

injuries to a greater degree than the defendants, then the
plaintiff may not recover. Ohio Code 2315.33 (2003); Crosby
v. Radenko, __ N.E. __, 2011 Ohio 4662 (Ohio Ct. App.,
Montgomery County Sept. 16, 2011). Otherwise, the plaintiffs
recovery is reduced by the amount of his own fault. Ohio Code
2315.33 (2003); Sauer v. Crews, __ N.E. __, 2011 Ohio 3310
(Ohio Ct. App., Franklin County June 30, 2011).

21

50-state survey
Oklahoma
Pure Several Liability

Since 2011, Oklahomas rule is one of purely several and not

After a partial settlement, the settling tortfeasor no longer has

joint liability. 23 Okl. Stat. 15 (2011). A tortfeasor is entitled to

any obligation to pay contribution to another and the plaintiffs

contribution only if it paid more than its proportionate share of

recovery from the remaining tortfeasors is reduced by the

the judgment which is to say, only if its liability arose prior to

settlement amount. 12 Okl .St. 832 (1979); Hoyt v. Paul R.

the recent enactment of pure several liability. 12 Okl .St. 832

Miller, M.D., Inc., 921 P.2d 350 (Okl. 1996).

(1991); Barringer v. Baptist Healthcare, 22 P.3d 695 (Okl. 2001).

The plaintiffs negligence is not a bar to his recovery. 23 Okl .St.
13 (1979); Bode v. Clark Equipment Co., 719 P.2d 824 (Okl.
1986). It does, however decrease the amount he is entitled
to recover by the portion of his damages for which he is
responsible. 23 Okl .St. 14 (1979); Smith v. Jenkins, 873 P.2d
1044 (Okl. 1994).

Oregon
Variable Liability

With an exception for environmental torts, Oregon follows the

A partial settlement affects the non-settling tortfeasors liability

rule of several-only liability though it does allow for reallocation

only where there is joint and several liability, in which case

of uncollectable judgments. Or. Stat. 31.610 (1971); Lasley v.

a setoff is had from the damages award. Or. Stat. 31.610

Combined Transportation, 261 P.3d 1215 (Or. 2011). The right

(1971); Kerry v. Quicehuatl, 162 P.3d 1033 (Or. Ct. of App.

to contribution exists for defendants who pay more than their

2007).

proportionate share of the damages. Or. Stat. 31.800 (1975);

Lasley v. Combined Transportation, 261 P.3d 1215 (Or. 2011).
Negligence by the plaintiff diminishes his right to recovery, but
it does not bar the action. Or. Stat. 31.600 (1971); Bjorndal v.
Weitman, 184 P.3d 1115 (Or. 2008).

22

Joint and Several Liability

Pennsylvania
Variable Liability

Most Pennsylvania cases fall under the several-only liability

Unless the plaintiffs negligence is greater than the defendants

rule. 42 Pa. Stat. 7102 (2011); Harris v. Kellogg, Brown & Root

fault, it merely diminishes but does not preclude the plaintiffs

Servs., 796 F.Supp.2d 642 (W.D. Pa. 2011). A few exceptions

right to recovery. 42 Pa. Stat. 7102 (2011); Hannon v. Temple

exist, however, including for defendants who are more than

Univ., 2011 Phila. Ct. Com. Pl. LEXIS 43 (Pa. C.P. Feb. 11,

60 percent at fault as well as intentional and environmental

2011).

tortfeasors and for Dram Shop actions. 42 Pa. Stat. 7102

A partial settlement triggers a pro rata reduction of the

(2011); Jacobs v. Glenn O. Hawbaker, Inc., 13 A.3d 1056 (Pa.

remaining tortfeasors liability. Taylor v. Solberg, 566 Pa. 150

County Ct. 2012).

(Pa. 2001).

The right to contribution exists for jointly and severally liable

defendants but only where their liability is not for an intentional
tort. 42 Pa. Stat. 8324 (1976); Toll Bros. v. Panitch, Schwarze,
Jacobs & Nadel, P.C., 2011 Pa. Dist. & Cnty. Dec. LEXIS 381
(Pa. County Ct. March 2, 2011). This right is extinguished by
settlement. 42 Pa. Stat. 8324 (1976); Baker v. AC&S, Inc., 562
Pa. 290 (Pa. 2000).

Rhode Island
Pure Joint & Several Liability

Rhode Island tortfeasors are jointly and severally liable. R. I.

A partial settlement reduces the non-settling defendants

Gen. Laws 10-6-2 (1956); Graff v. Motta, 695 A.2d 486 (R.I.

liability by the settlement amount. R.I. Gen. Laws 10-6-7

1997). There is a right to contribution among tortfeasors for

(2006); Shepardson v. Consolidated Med. Equip., 714 A.2d

a defendant who paid more than its proportionate share. R. I.

1181 (R.I. 1998).

Gen. Laws 10-6-3 (1956); Hawkins v. Gadoury, 713 A.2d 799

(R.I. 1998). The right to contribution ceases with a settlement.
R.I. Gen. Laws 10-6-5 (1956); Calise v. Hidden Valley
Condominium Assn, 773 A.2d 834 (R.I. 2001).
Rhode Island is a comparative negligence state, so the
negligence of the plaintiff is weighed against his right to
recover. R.I. Gen. Laws 9-20-4 (1971); Najarian v. Natl
Amusements, 768 A.2d 1253 (R.I. 2001).

23

50-state survey
South Carolina
Variable Liability

A defendant who is less than 50 percent at fault faces several-

In case of a partial settlement, the right to contribution is

only liability in South Carolina, provided that its conduct was

extinguished and the damages payable by the non-settling

not willful and that it did not involve illegal drugs or alcohol.

defendants is reduced by the amount of the settlement. S.C.

S.C. Code 15-38-15 (2005); Branham v. Ford Motor Co.,

Code 15-38-50 (1988); Simmons v. Greenville Hosp., 586

701 S.E.2d 5 (S.C. 2010). All other defendants are jointly and

S.E.2d 569 (S.C. 2003).

severally liable and have a right to contribution when they pay

more than their proportionate share provided that they did not
commit an intentional tort. S.C. Code 15-38-20 (1998); First
Gen. Servs. v. Miller, 445 S.E.2d 446 (S.C. 1994).
South Carolina offsets the plaintiffs award by the degree of his
own negligence. Berberich v. Jack, 709 S.E.2d 607 (S.C. 2011).

South Dakota
Variable Liability

In South Dakota, defendants 50 percent or more at fault are,

A plaintiffs negligence does not bar recovery provided that it

without limitation, jointly and severally liable for the plaintiffs

was slight. S.D. Codified Laws 20-9-2 (1998); Harmon v.

damages. S.D. Codified Laws 15-8-11 (2005); Centrol, Inc.

Washburn, 751 N.W.2d 297 (S.D. 2008). Whether the plaintiffs

v. Morrow, 489 N.W.2d 890 (S.D. 1992). Defendants who are

fault is slight is determined on a case-by-case basis and

less than 50 percent at fault are still jointly and severally liable,

not by assignment of a specific percentage of liability. S.D.

but there is a cap on their liability for no more than twice their

Codified Laws 20-9-2 (1998); Schmidt v. Royer, 574 N.W.2d

proportionate share of fault. S.D. Codified Laws 15-8-15.1

618 (S.D. 1998). Where the plaintiffs action is not barred by

(1987); Landstrom v. Shaver, 550 N.W.2d 699 (S.D. 1996).

excessive negligence on his part, his recovery is reduced by

the proportion of his negligence. S.D. Codified Laws 20-9-2

Joint tortfeasors have a right to contribution should they pay

(1998); Steffen v. Schwans Sales, 713 N.W.2d 614 (S.D. 2006).

more than their proportionate share of the plaintiffs damages.

S.D. Codified Laws 15-8-12 (1960); Freeman v. Berg, 482

A partial settlement reduces by its amount what the plaintiff

N.W.2d 32, 34 (S.D. 1992).

may recover from the non-settling tortfeasors. S.D. Codified

Laws 15-8-17 (1960); Fix v. First State Bank, 807 N.W.2d 612
(S.D. 2011).

24

Joint and Several Liability

Tennessee
Variable Liability

In most cases, Tennessee defendants are liable severally, not

The plaintiffs fault does not bar his recovery, but it does

jointly. Banks v. Elks Club Pride of Tenn. 1102, 301 S.W.3d

proportionately reduce his entitlement to damages. McIntyre v.

214 (Tenn. 2010). Exceptions in which joint and several liability

Balentine, 833 S.W.2d 52 (Tenn. 1992).

remains the rule are for products liability cases and for cases

In case of a settlement with some but not all tortfeasors, the

where the defendants act in concert. Limbaugh v. Coffee Med.

plaintiffs recovery from the non-settling defendants is reduced

Ctr., 59 S.W.3d 73 (Tenn. 2001).

by the amount of the settlement. Tenn. Code 29-11-105

(1968); Tutton v. Patterson, 714 S.W.2d 268 (Tenn. 1986).

Where the rule of joint and several liability applies, tortfeasors

are entitled to contribution when they pay more than their
proportionate share, if they did not commit an intentional tort.
Tenn. Code 29-11-102 (1999); GE v. Process Control Co., 969
S.W.2d 914 (Tenn. 1998).

Texas
Variable Liability

Texas defendants who are more than 50 percent at fault

If some defendants settle, the plaintiffs damages recoverable

and those who act with intent to harm, regardless of their

from the remaining defendants are generally reduced by the

proportionate share, are jointly and severally liable in tort.

amount of the settlement. Tex. Civ. Prac. 33.012 (2005);

Tex. Civ. Prac. 33.013 (2003); Sharyland Water Supply Corp.

Battaglia v. Alexander, 177 S.W.3d 893 (Tex. 2005). If the

v. City of Alton, 354 S.W.3d 407 (Tex. 2011). A jointly and

case involves a health care claim, the non-settling defendants

severally liable defendant that pays more than its proportionate

liability is reduced either by the amount of the settlement or

share does have a right to contribution. Tex. Civ. Prac. 33.015

the pro rata share of the discontinued party defendants

(1995); C & H Nationwide v. Thompson, 903 S.W.2d 315

choice. Tex. Civ. Prac. 33.012 (2005).

(Tex. 1994).
A comparatively negligent plaintiff, whose fault is not greater
than 50 percent, may recover his damages less the portion
attributed to his own fault. Tex. Civ. Prac. 33.001 (1995); Tex.
Civ. Prac. 33.012 (2005); Del Lago Partners v. Smith, 307
S.W.3d 762 (Tex. 2010).

25

50-state survey
Utah
Pure Several Liability

Utah defendants are always severally, and not jointly, liable.

Utah adopted a modified version of comparative negligence:

Ut. Code 78B-5-818 (1986); Egbert v. Nissan Motor Co.,

the plaintiff may recover, less the portion of his damages

228 P.3d 737 (Utah 2010). Utah provides for the reallocation

attributable to him, if the defendants are at greater fault than

of the portion of fault of those who are immune from suit,

the plaintiff. Ut. Code 78B-5-818 (1986).

provided that the fault of the non-parties is less than 40

A partial settlement does not affect the non-settling tortfeasors,

percent. Therefore, a defendant may still pay more than its

unless the settling parties agree otherwise. Bodell Construction

proportionate share of liability. Ut. Code 78B-5-819 (1986).

v. Robbins, 215 P.3d 933 (Utah 2009).

Additionally, there is no right to contribution. Ut. Code

78B-5-820 (1986).

Vermont
Variable Liability

In Vermont, defendants are severally, and not jointly, liable only

There is no right to contribution among Vermont defendants,

where the plaintiff is also at fault. Vt. Stat. 1036 (1980); Levine

even for those who pay more than their proportionate share

v. Wyeth, 944 A.2d 179 (Vt. 2006). Under such circumstances,

of the plaintiffs damages. Howard v. Spafford, 321 A.2d 74

the negligent plaintiff may recover for the portion of his loss

(Vt. 1974).

that is not attributable to him, provided that his fault is less

If the plaintiff settles with some but not all defendants, then the

than the defendants taken together. Vt. Stat. 1036 (1980);

amount of the settlement is deducted from the total damages

Smedberg v. Detlefs Custodial Serv., 940 A.2d 674 (Vt. 2007).

award. Slayton v. Ford Motor Co., 435 A.2d 946 (Vt. 1981).

Virginia
Pure Joint & Several Liability

Tortfeasors face joint and several liability in Virginia. Va. Code

Where some but not all defendants settle with the plaintiff,

8.01-443 (1977); Cox v. Geary, 624 S.E.2d 16 (Va. 2006). They

the settling defendants are no longer subject to a claim

do have a right to contribution provided their liability arises

for contribution and the non-settling defendants liability is

from negligence (not from an intentional tort) and provided

reduced by the amount of the settlement. Va. Code 8.01-

that it does not involve an act of moral turpitude. Va. Code

35.1. (1983); Downer v. CSX Transportation, 507 S.E.2d 612

8.01-34 (1977); Sullivan v. Robertson Drug Co., 639 S.E.2d 250

(Va. 1998).

(Va. 2007).
Virginia follows the rule of contributory negligence: if the
plaintiff contributed to his own loss to any degree, then he
is barred from recovery. Norfolk & W. R. Co. v. Sonney, 374
S.E.2d 71 (Va. 1988).

26

Joint and Several Liability

Washington
Variable Liability

Washington state defendants are jointly and severally liable in

If the plaintiff settles with some but not all parties, the settling

cases where the plaintiff does not bear any of the fault, in cases

defendants are no longer subject to any claim for contribution.

where the defendants act in concert, where vicarious liability

Wash. Code 4.22.070 (1987); Wash. State Physicians Ins.

applies, and in cases involving hazardous waste disposal,

Exch. v. Fisons Corp., 858 P.2d 1054 (Wash. 1993). The

asbestos and tortious interference with contract. Wash. Code

plaintiffs entitlement to a recovery from the remaining

4.22.070 (1986); Kottler v. State, 963 P.2d 834 (Wash. 1998).

defendants is reduced by the amount of the settlement only

If none of these exceptions apply, the defendants liability is

if the settlement is reached after judgment or if the settling

several only. Wash. Code 4.22.070 (1986); Washburn v. Beatt

defendants are liable under a vicarious liability theory. Wash.

Equipment Co., 840 P.2d 860 (Wash. 1992).

Code 4.22.070 (1987); Washburn v. Beatt Equipment Co.,

840 P.2d 860 (Wash. 1992).

If joint and several liability applies, the defendants have the

right to seek contribution from one another. Wash. Code
4.22.050 (1981); Wash. Code 4.22.070 (1986); Mazon v.
Krafchick, 144 P.3d 1168 (Wash. 2006).
In a case where the plaintiff contributes to his own damages,
his actions are allocated their own percentage share for
which the defendants are not liable. Wash. Code 4.22.070
(1986); Hiner v. Bridgestone/Firestone, Inc., 978 P.2d 505
(Wash. 1999).

West Virginia
Variable Liability

West Virginia defendants are largely jointly and severally liable.

The right of contribution exists in favor of defendants who pay

W.V. Code 55-7-24 (2005). There is a limited exception under

more than their share of liability. W.V. Code 55-7-13 (1923);

which several-only liability applies for defendants who are

Rowe v. Sisters of the Pallottine Missionary Socy, 560 S.E.2d

less than 30 percent at fault, did not act in concert with others

491 (W.V. 2001).

and are not liable for an intentional or an environmental tort

The plaintiff may not recover for the portion of his damages

or in products liability. W.V. Code 55-7-24 (2005). Provisions

that are his own fault. Bradley v. Appalachian Power Co., 256

limiting several liability exist for cases involving political

S.E.2d 879 (W.V. 1979).

subdivision defendants and for medical malpractice claims.

W.V. Code 55-7B-9 (2003); W.V. Code 29-12A-7 (1986);

In case of a partial settlement, the settlement amount is

Strahin v. Cleavenger, 603 S.E.2d 197 (W.V. 2004). Additionally,

reduced from the total judgment only where there has been no

uncollectable portions of the plaintiffs damages award may be

apportionment of liability between the settling and non-settling

reallocated to other defendants who are 10 percent or more

defendants. Johnson v. General Motors Corp., 438 S.E.2d 28

at fault provided their fault is greater than the plaintiffs. W.V.

(W.V. 1993).

Code 55-7-24 (2005).

27

50-state survey
Wisconsin
Variable Liability

Defendants who are 51 percent or more at fault and all

A Wisconsin plaintiffs negligence defeats his entitlement

those who acted in a concerted way that led to the plaintiffs

to recovery only if it exceeds the defendants share of the

damages are liable jointly and severally. Wis. Stat. 895.045

fault. When it does not, the damages award is reduced by

(1995); Richards v. Badger Mut. Ins., 749 N.W.2d 581 (Wis.

the portion that correlates to the plaintiffs share. Wis. Stat.

2008). Other defendants liability is several only where the

895.045 (1995); Matthies v. Positive Safety Mfg., 628 N.W.2d

case is one of strict products liability. Wis. Stat. 895.045

842 (Wis. 2001).

(1995); Fuchsgruber v. Custom Accessories, 628 N.W.2d 833

A partial settlement results in a reduction of the plaintiffs

(Wis. 2001).

damages award (recoverable from the remaining defendants)

If a defendant pays more than its proportionate share, it

by the settling defendants pro rata share. Brandner v. Allstate

is entitled to recover from codefendants in contribution.

Ins. Co., 512 N.W.2d 753 (Wis. 1994).

Wisconsin Natural Gas Co. v. Ford, Bacon & Davis

Construction, 291 N.W.2d 825 (Wis. 1980).

Wyoming
Pure Several Liability

Wyoming follows the rule of pure several liability. Wyo. Stat.

If the plaintiff settles with some but not all parties, the

1-1-109 (1986); Pinnacle Bank v. Villa, 100 P.3d 1287 (Wyo.

remaining, non-settling defendants remain liable for their

2004). Since tortfeasors pay only their proportionate share

percentage of the plaintiffs damages, irrespective of the

of the judgment, there is no right to contribution. Anderson

settlement. Haderlie v. Sondgeroth, 866 P.2d 703 (Wyo. 1993).

Highway Signs & Supply, v. Close, 6 P.3d 123 (Wyo. 2000).

In Wyoming, a negligent plaintiff is not barred from recovery,
but his damages will be reduced by the portion of his own
fault, as long as his portion of fault is at most 59 percent. Wyo.
Stat. 1-1-109 (1986); Parrish v. Groathouse Construction, 130
P.3d 502 (Wyo. 2006).

28

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