Joint and Several Liability: Is It Fair?

October 19th, 2012 - Carmichael Clark

In the realm of tort litigation in Washington State, the concept of joint and several liability can have a significant impact on the apportionment of a claimant’s total damages amongst at-fault parties.

Washington law provides:

In all actions involving fault of more than one entity, the trier of fact shall determine the percentage of total fault which is attributable to every entity which caused the claimant’s damages. The sum of the percentages of the total fault attributed to at-fault entities shall equal one hundred percent.  RCW 4.22.070

Judgment shall be entered in an amount which represents a party’s proportional share of the claimant’s total damages.

The trier of fact will compare the fault of all potential wrongdoers including the claimant, defendants, third-party defendants, and entities released by the claimant. Under comparative responsibility, each at-fault party is held proportionally responsible for the claimant’s injuries or damages. If an accident is caused by more than one party the trier of fact will apportion responsibility based upon each at-fault party’s own percentage of negligence, for a total % of fault of 100%. A judgment is then entered in an amount which represents each party’s proportionate share of the claimant’s total damages. 4.22.070(1).

As an example, in a motor vehicle accident case involving multiple vehicles, the trier of fact can find that two separate drivers are at-fault, and caused the claimant’s injury. The trier of fact would then apportion the fault between the two at-fault drivers. The financial responsibility for the claimant’s injuries would be shared comparatively based upon each driver’s proportion of fault. A driver deemed by the trier of fact to be 75% at- fault would be financially responsible for 75% of the claimant’s total damages. Pursuant to comparative responsibility law, a minimally responsible wrongdoer only bears minimum financial responsibility for the claimant’s injury or damages. The at-fault party deemed by the trier of fact to be, for example, 25% at fault, is responsible for his proportion of the total damages, or 25% of the total damages.


A person or entity can be held responsible for the fault of another if a plaintiff or claimant is fault-free (bears no responsibility for the accident). For fault-free claimants, Washington law provides that all parties found to be at-fault will be jointly and severally liable for the total of the fault-free claimant’s damages. This allows a fault-free claimant to collect the total damages from any at-fault defendant, no matter how minor his responsibility.

The law states specifically:

If the trier of fact determines that the claimant or party suffering bodily injury or incurring property damage was not at fault, the defendants against whom judgment is entered shall be jointly and severally liable for the sum of their proportionate shares of the claimant’s total damages.  4.22.070(1)(b)

A party can be responsible for a total stranger’s negligence if the claimant is not at fault (often seen with passengers in automobile accident cases).

This law, while compensating fault-free plaintiffs, makes any at-fault defendant legally responsible for the fault of other negligent parties.  Each defendant is 100% responsible for the claimant’s total damages. While this law does help to compensate fault-free plaintiffs, it can also hold minimally responsible defendants liable for injuries caused by others.  Often defendants who bear only a very minor part of the responsibility (even just 1%) have to shoulder the burden of responsibility for actions of another for whom they would otherwise have no responsibility. This law creates situations where very remotely responsible parties (with adequate insurance or financial means) get sued in the hopes of getting a small negligence finding against them so that the financially solvent entity will be responsible for the total damages. This is particularly prevalent in cases where the target at-fault party is uninsured or underinsured and without the financial ability to satisfy a judgment.  Using the motor vehicle accident case as an example, if the target at-fault driver is uninsured and the driver of the second vehicle involved in the accident is found to be negligent and even just 1% at fault, the second driver is responsible to any fault-free plaintiff (passenger) for the negligence of the uninsured target at-fault driver. An injured claimant can recover more than the proportional share of liability from the minimally responsible defendant if the target at-fault defendant does not have insurance or the financial ability to satisfy a legal judgment.

Supporters of Joint and Several Liability laws argue that the law protects those injured by negligence from being undercompensated.

In addition, the joint and several liability law states that a person can be held responsible for the fault of another person or for the payment of the proportionate share of another party where both were acting together or in concert to cause the injury, or when a person was acting as an agent or servant of the party (an employee).

Joint and Several liability is something we evaluate carefully with each case.    

-Jolyn Hunt, Attorney

Disclaimer: This article and blog are intended to inform the reader of general legal principles applicable to the subject area. They are not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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