The negligent acts or omissions of two or more individuals or entities can
coincide or combine to injure another party. While this can occur in many other
types of personal injury situations, for the purposes of this discussion, we’ll use
this auto accident scenario:
Two motorists, D1, who is driving north while distracted by typing a text message
on his cell phone, and D2, who is driving west and runs a stop sign, collide in the
intersection of North Avenue and West Street. The impact forces D2’s car over
the curb and onto the sidewalk where it hits and seriously injures an innocent
pedestrian, P. P’s total damages as a result of the injury, including medical bills,
pain and suffering and lost wages, are $100,000.
How the total liability for P’s damages is apportioned between D1 and D2
depends on the law of the state where the accident occurs. There are 3 basic
approaches used by the 50 states’ laws to deal with that issue:
1. Pure Several Liability – used by 14 states, including North Carolina’s
2. Modified Joint and Several Liability – used by 29 states, including North
Carolina’s neighbor, South Carolina, and
3. Pure Joint and Several Liability – used by North Carolina, its neighbor,
Virginia, and only 5 other states.
In the following, we will first briefly describe the approaches used by other states,
then focus more closely on the approach used by North Carolina law.
In the 14 states that use the “pure several liability” approach, which is also called
the “proportionate liability” approach, each negligent defendant is liable for only a
portion of the total damages incurred by the injured plaintiff. That portion of
liability is based on the defendant’s percentage of fault for the plaintiff’s injury,
either as agreed to in a pre-trial settlement or as determined by the jury. To the extent to which any of the defendants is “judgment-proof” (uninsured and insolvent) and thus unable to compensate the plaintiff for his/her percentage share of the plaintiff’s damages, the plaintiff will not actually recover full compensation.
Assume that the accident described in our scenario occurred in Tennessee or
another several liability state. At the trial, the jury finds that D1 was 60% at fault
and D2 was 40% at fault. As a result, D1 is liable to P for only 60% of P’s
damages, $60,000, and D2 is liable for only the remaining 40%, $40,000. If D2
is unable to compensate P for any more than $10,000 of P’s damages, then P
will actually recover only $70,000 of P’s $100,000 of total damages.
In the 29 states that use the “modified joint and several liability” approach, each
negligent defendant is liable for only a portion of the injured plaintiff’s damages
based on that defendant’s percentage of fault for the plaintiff’s injury, up to a
defined percentage threshold. If the percentage of any defendant’s fault equals
or exceeds the applicable threshold, then that defendant is liable for all of the
Assume that the accident described in our scenario occurred in South Carolina, a
modified joint and several liability state where the liability threshold is 50%.
Again, the jury finds that D1 was 60% at fault and D2 was 40% at fault. Even if
D2 is nearly judgment-proof and cannot compensate P for any more than
$10,000 of damages, P can still recover all of P’s damages, $100,000, from D1
whose percentage of fault was above the 50% threshold.
In North Carolina and the other 6 states that use the “pure joint and several
liability” approach, every defendant whose negligence is a cause of the plaintiff’s
injury is liable for all of the plaintiff’s resulting damages, regardless of their
percentage of fault for such injury.
Assume that the accident described in our scenario occurred in North Carolina.
North Carolina’s courts do not apportion fault between defendants who are found to be jointly and severally liable. P could sue either D1 or D2 individually for all of
P’s damages. For instance, P might elect to sue D1 alone, because there is a
reliable eyewitness who clearly saw D1 texting just before the collision, and P
knows that D1 has more than enough insurance and assets from which to collect
all of P’s damages. In all likelihood though, P will sue both D1 and D2 in a single
action, because generally speaking, a plaintiff cannot receive two jury awards for
the same personal injury damages.
If D1 pays for all of P’s damages, then pursuant to a North Carolina statute, D1
can sue the other jointly and severally liable defendant, D2, for “contribution”
equal to D2’s “pro rata share” in the entire liability. Such pro rata share is based
solely on the number of jointly and severally liable defendants involved – their
respective percentages of fault are not taken into consideration. Because there
are two such defendants, D2’s pro rata share is equal to 50% of P’s total
damages, $50,000. If D2 is judgment-proof for any more than $10,000, then
after recovering that $10,000 from D2, D1 will end up having paid for 90% of P’s
As you can see, there are special issues that often arise in situations where
multiple negligent parties are responsible for causing a personal injury. If you
have been injured in such a situation and are considering taking legal action, call
us and arrange for a free consultation. Our experienced attorneys at Kelly &
West have been helping clients with their personal injury actions for more than 40
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