Enactment of ‘Fair Share Act’ Results in Major Civil Liability Reform

Pennsylvania, along with forty other states, has adopted the doctrine of proportional fault by enacting the Fair Share Act.  The Act applies to "causes of action which accrue on or after" June 28, 2011.  42 Pa. C.S. § 7102.  On June 28, 2011, Gov. Tom Corbett signed the Fair Share Act into law, which significantly limits defendants’ exposure to joint and several liability in negligence cases by recognizing the doctrine of “proportional fault.”  42 Pa. C.S. § 7102.  Under the prior doctrine of joint and several liability, plaintiffs in negligence cases were able to recover one hundred percent of the damages from any one of the joint defendants.  Comparatively, the Fair Share Act provides that joint defendants will only be responsible for their proportionate share of liability. 

Prior Joint and Several Liability  Law
 “Joint tort-feasors” are two or more individuals who are liable for the same tortious conduct.  42 Pa. C. S. § 8322 (2012).   Before the enactment of the Fair Share Act, joint tort-feasors were “jointly and severally liable” to the injured party; each tort-feasor could be held liable for the full amount of the judgment.  A particular tort-feasor’s proportionate degree of fault had no bearing on their duty to pay the full judgment amount. 

An illustration: 

  • Consider a judgment wherein tort-feasor “A” is determined to be one percent liable by a judge or jury. 
  • Tort-feasor “B” is determined to be ninety-nine percent liable by a judge or jury. 
  • Prior to the enactment of the Fair Share Act, either one of these parties would be liable to pay the full amount of the judgment. 

Under the Doctrine of Joint and Several Liability, the only remedy available to an over-paying tort-feasor was the right of contribution.  Under this doctrine, a tort-feasor could seek recovery of contributions from co-defendants after that tort-feasor had paid more than their proportionate share.  42 Pa. C. S. § 8324 (2012).

Fair Share Act
The Fair Share Act has transformed the common-law, plaintiff-friendly paradigm by creating a model that permits the fact-finder to delegate damages based on a percentage of fault.  Though subject to some exceptions, the Act requires individual defendants to pay only their proportionate share of the judgment:

“(a.1)(1)Where recovery is allowed against more than one person, including actions for strict liability, and where liability is attributed to more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of that defendant's liability to the amount of liability attributed to all defendants and other persons to whom liability is apportioned....”

“(a.1)(2)...[A] defendant's liability shall be several and not joint, and the court shall enter a separate and several judgment against each defendant for the apportioned amount of that defendant's liability.”

Exceptions to the Fair Share Act
Exceptions to this proportional model are spelled out in section (a.1)(3):

  • Joint and Several Liability still applies if the defendant is found liable for sixty percent or more of the total liability.
  • Joint and Several Liability still applies for certain types of conduct claims: an intentional misrepresentation; an intentional tort; a violation of Pennsylvania's Liquor Code; or a violation of Pennsylvania's Hazardous Sites Cleanup Act.

Practical Considerations for Litigants
The Act will likely produce a decrease in settlements because plaintiffs are unlikely to settle with a defendant who may be proportionally sixty percent, or more, liable for the injury, unless they can recover the entire judgment.  It is unlikely that defendants will be willing to settle at such high costs.  Primary litigants will be less likely to introduce “deep pocket” co-defendants with minimal liability into litigation.

Support and Opposition for the “Fair Share Act”
Plaintiff’s lawyers have criticized the bill, stating that it seeks to harm already injured victims of negligence.  They argue that the only beneficiaries of the Fair Share Act are large corporate defendants and insurance companies.  Long-time supporters of common-law reform stand by the proposition that the new law will ensure that business owners and other defendants will not pay a disproportionate share of damages awarded in civil court cases.

Please contact the attorneys at Nicolson Law Group for further information, questions and comments about this article.

The information herein is provided for consumer educational purposes only. The statements contained herein are general statements of law, as of the date stated, and there may be exceptions that are not set forth below, or changes due to later legislative developments and/or newer case law. The Nicolson Law Group does not suggest that any provision contained herein will or must apply to any specific issue or case. For legal information and advice for any particular matter, you are encouraged to consult advice from one of Nicolson Law Group’s licensed attorneys.