Joint and Several Liability: A Law and Economics Defense

from Maryland Injury Lawyer Blog

Contributory negligence is about as dead of an idea as communism. Maryland is one of five jurisdictions in the United States (along with Virginia, Washington D.C., Alabama, and North Carolina) that have maintained this antiquated notion that being 1% at fault for your own injuries should be a bar to your claim. It is pretty much intellectually indefensible, really.

One big impediment of changing this law in Maryland is a powerful plaintiffs' lawyer. I will not name this lawyer. (One small hint: he owns a baseball team, has more money than everyone reading this blog post combined, and recently donated a truckload of money again to the University of Baltimore School of Law.)

Why would any plaintiffs' lawyer oppose comparative negligence? The reason is simple: when this issue gets brought up in the Maryland legislature, a legislator always says something to the effect of, "This is not a bad idea. But certainly joint and several liability is a bad idea, too. How about we get rid of both contributory negligence and joint and several liability?" Some states have done exactly this. Other states, like Maryland, have allowed defendants to make contribution claims to try to reduce the claim of inequity that one defendant should bear the entire loss for an accident that was caused by more than one party.
... <a href="http://www.marylandinjurylawyerblog.com/2010/11/joint_and_several_liability_a.html">http://www.marylandinjurylawyerblog.com/2010/11/joint_and_several_liability_a.html</a>;

by B' Spokes

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trying to tie joint and several liability to contributory liability is like proposing banning slavery and smoking - one is clearly a poison pill to prevent the other one from being passed. I do happen to think contributory neg. is worse (less "fair") than comparative neg. but that's truly a close call in most any scenario other than bodily harm (where it is so hard to compensate appropriately). OTOH, I think if they are proposing the banning/abandoning of J/S liability they should just come right out and ban the tort system, and say to each his own - law of the jungle.