“Whatever Happened to Our Old Friend Joint and Several?”

I get that question every once in a while, so let’s address it.

Many years ago (before the Legislature intervened), Oklahoma common law followed the rule of “joint and several liability,” which the courts sometimes called the “entire liability rule.” Under that rule, when a plaintiff was injured by the combined negligence of more than one tort-feasor, each tort-feasor was liable to the injured plaintiff for all of the damages, without regard to how much of the negligence was attributable to that particular tort-feasor.

The rationale supporting that common-law rule was that there was an inevitable risk in the tort system that one or more of the entities causing a loss would be insolvent, leaving the injured plaintiff without a remedy as to that tort-feasor. The common law reasoned that fairness would allocate that risk to the guilty tort-feasor, as opposed to imposing the risk on the innocent victim of the tort-feasor’s negligence or other wrongful act. This “pure” common law rule of joint and several or entire liability prevailed in Oklahoma until 1978.

Under that rule, plaintiffs had the benefit of the “one percent rule.” Under that rule, any defendant found guilty of 1% negligence could recover 100% of his or her damages from the 1% negligent defendant. The one percent rule was a powerful tool for extracting a settlement from an imminently solvent defendant who just might be slightly negligent in inflicting a severe injury.

In 1978, the Supreme Court decided Laubach v. Morgan, 1978 OK 5, 588 P.2d 1071. There was a three-car collision and the jury attributed 30% liability to the plaintiff, 50% to one defendant and 20% to the second defendant. The Court noted that the Legislature had, in 1973, adopted comparative negligence, instead of the common-law rule of contributory negligence.

Before 1973, under the contributory negligence rule, if the jury found any negligence, however slight, on the plaintiff, the plaintiff got nothing. To avoid this terribly unjust result, the Legislature enacted the first of two versions of a comparative negligence rule under which the negligent plaintiff could recover if the plaintiff’s negligence was less than 50%. (A later Legislature changed the rule to where a plaintiff can recover half of his damages if the negligence is 50-50.)

The Laubach court had to decide how to apply that rule to the facts before it. Did the “greater than” negligence rule of comparative mean that the plaintiff there, with 30% negligence could not recover from the defendant with 20% negligence or would the negligence of the two defendants be added together so that the total negligence of the defendants (80%) exceeded plaintiff’s 20% negligence?

The Court decided that the proper reading of the ambiguous statute was that the 30% negligent plaintiff could recover from both defendants. However, the Court said, it would be unfair for the 30% negligent plaintiff to be able to recover 100% of his damages from the 20% negligent defendant who was, after all, less negligent than the plaintiff. And, the court noted, since the common law then in effect did not provide for contribution among tort-feasors, it would be grossly unfair to require the 20% negligent defendant to bear the entire liability to plaintiff and be unable to pass some of that liability on to the 50% negligent defendant.

The solution for which the Laubach court opted was to hold that the plaintiff who was guilty of some comparative negligence could recover only several liability against each of the negligent defendants and not joint liability, as had previously been the case. So, in a sense, we traded a really bad system under which any percentage of negligence prevented recovery altogether for a less bad system, in which the negligent plaintiff could recover but could recover only several and not joint liability.

Perhaps more importantly, under Laubach, the blame-free plaintiff could still recover joint and several liability. This was the holding in Boyles v. ONG, 1980 OK 163, 619 P.2d 613. There the plaintiff was blame-free. (He was a passerby walking past a building which blew up due to a natural gas leak the jury found was caused by a combination of negligence on the part of the gas company, the building owner and a contractor who had worked on the building. The Court held there was no need to allocate negligence among the defendants because the plaintiff was negligence free so the comparative negligence statute did not apply.

So, beginning with Boyles the rule was that the negligence free plaintiff could still recover joint and several liability but the negligent plaintiff could recover only several liability, that is, could get only the percentage of negligence which the jury found for a particular defendant. This was the rule applicable to cases arising from the time of Laubach until the increasingly Republican and conservative legislature began to legislate about joint and several liability, in 2004.

The rule continued even after the legislature corrected the problem the Supreme Court had earlier identified in Laubach that Oklahoma did not have contribution among tort-feasors. In Berry v. Empire Indemnity, 1981 OK 106, 634 P.2d 718, the Supreme Court noted that, after the event involved in Laubach, Oklahoma had adopted contribution among tort-feasors when it enacted 12 O.S. 1979 §832, the Contribution Among Tort-feasors Act.

Under that statute, if a tort-feasor had to pay more than its share of the liability, that tort-feasor could recover contribution from another tort-feasor whose wrongful act created the liability for which the paying tort-feasor was held liable.

In Berry, plaintiff was a passenger on a city garbage truck which collided with the defendant. The jury found the garbage truck driver (who was protected from liability by the exclusive remedy of Workers’ Compensation) 70% at fault and found the defendant 30% liable. The defendant argued that adoption of the contribution among tort-feasors act had the effect of reversing Laubach since one of the Court’s rationales in Laubach was the unavailability of contribution.

The Berry Court rejected this argument, holding that, since the plaintiff/passenger in Berry was negligence-free, he was still able to recover joint and several liability. And that’s where the law remained from 1980 until 2004.

Then the legislature enacted the first of several versions of 23 O.S. § 15, effective 11/1/2004. Under that statute, joint and several liability applied only to defendants so long as the negligence attributed to that defendant was greater than 50%. The statute did not apply to a defendant whose negligence was willful, wanton or with reckless disregard for the consequences of the conduct or if the plaintiff was found to have no comparative negligence. This version of the statute was effective as to injuries occurring between 2004 and 11/1/2009.

Effective 11/1/2009, the legislature took out the provision that the statute did not apply to the blame-free plaintiff. Thus, with regard to injuries occurring between 2009 and 11/1/2011, joint and several applied only with regard to defendants more than 50% negligent and did not apply to willfully liable defendants.

But the legislature was not through with us yet. Effective 11/1/2011, the present version of 23 O.S. § 15 became effective. As to injuries after that date, the liability for damages caused by two or more persons is “several only and a joint tortfeasor shall be liable only for the amount of damages allocated to that tortfeasor.” That same legislation took out the provision imposing joint and several liability on the grossly negligent or willful.

So, by this time, almost all the cases you see will involve several, and not joint liability. The legislature has managed to protect the guilty and afflict the innocent victims. Run for legislature. And support your OAJ PAC!

by Rex Travis

This article originally appeared in the Spring 2017 edition of the Oklahoma Association for Justice (OAJ) Advocate.