Document Type


Publication Date

January 2002


Tort reform advocates hoped to use a recent case, Norfolk & Western Railway Co. v. Ayers, 123 S. Ct. 1210 (2003), as a vehicle for obtaining a Supreme Court opinion critical of the traditional doctrine of joint and several liability. Under this doctrine, each of the multiple responsible causes of an injury is potentially fully liable for that injury. The specific issue in Ayers was the availability of joint-and-several liability under the Federal Employers' Liability Act (FELA), which employs common-law tort doctrines while excluding some of the traditional defenses. The defendant claimed that the traditional common law used fractional apportionment of liability (proportionate several liability), rather than full (joint and several or several) liability, for all cases other than those involving tortfeasors acting in concert; that this was the state of the law when FELA was enacted in 1908; that FELA incorporates the common law's supposed preference for proportionate several liability; that joint and several liability for independent tortfeasors existed only for a brief period during the middle of the twentieth century; that joint and several liability results in a defendant's being liable for more damages than she caused or for which she is responsible; and that the evolving common law, the Restatements, and just principles of liability all support proportionate several liability. As this paper argues, and the Supreme Court recently unanimously concluded, all of these assertions are clearly incorrect. Under both the common law and federal admiralty law at the time of FELA's enactment, and long before, each defendant who tortiously contributed to a plaintiff's injury was severally fully liable for that injury, regardless of whether other tortious causes of the plaintiff's injury could be joined in the same lawsuit. Full liability was intended and has been consistently employed by federal and state courts under FELA from the time of FELA's enactment. Joint-and-several liability is the universal rule in other countries, and all but a handful of the courts in the United States have consistently stated, even after the adoption of comparative responsibility, that joint-and-several liability is the fairest method of allocating liability among the multiple responsible causes of an injury. The courts note that, under joint and several liability, a defendant generally is only liable for injuries for which it is fully responsible as a tortious, actual, and proximate cause. The Restatement Third, while not adopting any single allocation method, states that the fairest method for allocating liability among multiple responsible causes of an injury is joint-and-several liability with re-allocation of uncollectible shares among the responsible parties, and it strongly criticizes proportionate several liability. Moreover, despite the misleading arguments of the tort reformers, which have resulted in many legislative inroads on the joint-and-several liability doctrine, the doctrine has nowhere been completely eliminated, and it continues to be the primary allocation rule in a majority of the states, especially for environmental, hazardous material, and product-liability claims.

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