Joint and Several Liability
When there is more than one defendant in a lawsuit, the courts may find the defendants “jointly and severally liable” for the plaintiff’s injury. Generally speaking, a defendant is only required to pay the percentage of damages the court finds them legally responsible for. However, joint and several liability provides an exception to this general rule. When a court awards damages under joint and several liability, the plaintiff can recover the whole amount from a defendant if the defendant is found to be greater than 50 percent responsible, or is otherwise found to have acted with a specific intent to do harm or has engaged in certain criminal activity . The theory of joint and several liability essentially increases a plaintiff’s chance of recovering the full amount they’re owed, especially when one of the defendants is financially unable to pay.
For actions based in tort law, the Texas Supreme Court emphasized in G.T. Leach Builders, LLC v. Saphire that the law allows for joint and several liability for the majority of tort actions, so long as the defendant is responsible for at least 50 percent of the plaintiff’s injuries . Actions based in tort include negligence, products liability, or intentional unlawful acts . The rules for joint and several liability are the same for all lawsuits (regardless of whether the lawsuit is for negligence, strict liability, or intentional unlawful acts).
The plaintiff can collect the full amount of damages from any defendant who is joint and severally liable, and then the defendant who pays the full amount can sue the other defendant(s) to collect back some of that money. The Texas Civil Practice and Remedies Code provides a right to contribution to the defendant who overpaid the plaintiff. When a defendant pays the entire amount of the plaintiff’s judgment (or any amount larger than they’re responsible for), that defendant has the right to get paid back from the other defendants who underpaid or didn’t pay .
There are a few ways defendants can become jointly and severally liable; either by:
- Causing more than 50% of the plaintiff’s injuries,
- Acting together with other defendants to cause injury,
- Acting separately but causing an injury that’s indivisible, or
- Vicarious liability
1) More than 50% Responsible (Direct Liability):
If the court determines a defendant is more than 50% responsible for the plaintiff’s injuries, that defendant can be held jointly and severally liable for the plaintiff’s injury.
- Example: Say two drivers (“Defendant A” & “Defendant B”) are at fault for an accident where another party (the plaintiff) is injured. If Defendant A was 25% responsible for the accident and Defendant B was responsible for the other 75%, joint and several liability allows the plaintiff to recover the entire amount against either defendant. So even though Defendant B was only responsible for 75% of the plaintiff’s injuries, he may be on the hook for the full 100% because he’s more than 50% responsible for the injuries. If Defendant B pays the full amount of damages to the plaintiff, he can sue Defendant A and demand A pay him back the 25% the court held him responsible for.
2) Defendants Acting Together (Direct Liability):
There are two similar theories of joint and several liability that are used in Texas courts: “concert of action” and conspiracy. Although some courts of appeals have applied the “concert of action theory”, conspiracy is the more common theory and the only one of the two that has been adopted by the Texas Supreme Court. The 1964 Texas Supreme Court case, Great National Life Insurance Co. v. Chapa, defined a conspiracy as at least two people working together “to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means .” It’s important to note that a lawsuit for conspiracy is the most popular method, but not the exclusive method, of proving the defendants acted together.
- Example: Two drivers (“Defendant A” & “Defendant B”) are at fault for an accident where another party (the plaintiff) is injured. Defendant A was responsible for 25% of the injury and Defendant B was responsible for the remaining 75%. If Defendant A & Defendant B were found to have acted together with the specific intent to cause harm, either party could be held responsible for the full amount. This means, even though Defendant A is only responsible for 25% of the plaintiff’s injuries, he can be held responsible to pay the full 100% (Defendant A can still sue Defendant B to recover back the 75% B is responsible for).
3) Defendants Acting Separately but Causing Indivisible Injury (Direct Liability):
Defendants can sometimes be held joint and severally liable when they did not act together, if their actions caused an injury that is “indivisible.” An indivisible injury can’t be properly divided into separate parts, so each defendant is held responsible for the entire injury. In other words, it’s impossible to trace who caused which part of the injury. This does not include situations where one defendant causes an injury, and the second defendant only aggravates this preexisting injury. If the defendant doesn’t want to be held joint and severally liable, it is up to the defendant to prove to the court that an injury is, in fact, divisible.
- Example: In the 1947 Texas Supreme Court case, Austin Road Co. v. Pope, a worker was struck by a truck and injured at a construction site. The contractor driving the truck was held joint and severally liable along with the construction company, which was negligent in its failure to have a watchman to prevent car accidents at the site . In that case, although the two defendants didn’t work together to cause the plaintiff’s injuries, it was impossible to determine who caused which part of the injury, making the injury “indivisible.” The court determined that the construction company defendant was negligent for not having a watchman on the site, but the driver defendant was also negligent in his operation of the truck. Both parties were considered the proximate cause of the collision and it was impossible to trace which part of the injury each defendant was responsible for causing.
4) Indirect: Vicarious Liability:
Joint and several liability can also extend to a defendant indirectly, through vicarious liability. Vicarious liability is legal concept that holds a principal (employer) generally responsible for its agents’ (employees’) acts.
If the defendant acted in concert to commit certain serious crimes with another defendant, they both may be joint of severally liable even if their percentage of responsibility was less than 50%. However, if the defendants did not act in concert, a defendant can only be held jointly and severally liable if they are responsible for over 50% of the injury or if the defendants acted independently and caused an indivisible injury. Alternatively, if a plaintiff is considered at least 50% responsible for their own injury, they will not be allowed to recovery any damages from the defendant(s).
- ^ C.P.R.C. § 33.013(b).
- ^ G.T. Leach Builders, LLC v. Saphire V.P., L.P., 458 S.W.3d 502, 530 (Tex. 2015) (quoting Tex. Civ. Prac. & Rem. Code § 33.013(b)(1)).
- ^ Sharyland Water Supply v. City of Alton, 354 S.W.3d 407, 424 (Tex. 2011).
- ^ C.P.R.C. § 33.015.
- ^ Great National Life Insurance Co. v. Chapa, 377 S.W.2d 632, 635 (Tex. 1964).
- ^ Austin Road Co. v. Pope, 147 Tex. 430, 216 S.W.2d 563, 565-566 (Tex. 1949)