If there are multiple defendants in a personal injury case, the question is which defendants are liable and for how much of the damages will each defendant be liable for?
Joint liability means each defendant is liable up to the total amount of the plaintiff’s recovery. If one defendant dies or is otherwise unable to pay the financial obligation, the other defendant(s) will be responsible for the entire amount.
In states that have adopted a system of several liability, each defendant is only liable for his or her share of the damages regardless of the other defendants’ respective ability or inability to pay.
The argument for joint and several liability is that the system allows the plaintiff to be fully compensated regardless of the financial circumstances of one defendant. The plaintiff was injured, thus the recovery should not be affected due to one defendant’s inability to pay. Critics of joint and several liability claim the rule turns every case into a search for the defendant with the most money who will be able to pay the entire judgment if another defendant cannot pay his or her share.
To address both sides of the argument, some states, like Hawaii, have developed a modified approach to joint and several liability. Hawaii’s modified joint and several liability means that economic loss in personal injury cases will generally hold defendants jointly and severally liable. If the defendant is 25% negligent or more, the defendant will be liable up to the total amount of the plaintiff’s award. If the defendant is less than 25% negligent, the defendant will only be severally liable, responsible only for his or her share of the damage.
Tortfeasors who are only minimally negligent, are the only ones who have limited liability in Hawaii.
Hawaii’s joint and several liability is governed by statute Haw. Rev. Stat. § 663-10.9 (1995).