Joint and several liability is not to be retained in our pure comparative negligence system on the basis that a plaintiff must be favored.
Plaintiff was injured in an automobile accident involving an unknown driver, who quickly turned in front of plaintiff causing her to stop suddenly, and defendant, who struck plaintiff's car from behind. The jury was instructed to determine the proportions of fault among the parties and found defendant 30 percent at fault and the unknown driver 70 percent at fault. The trial court ordered a new trial because the jury was not instructed on joint and several liability. On appeal, the court reversed the order granting a new trial.
Is a tortfeasor liable for all of the damages caused by concurrent tortfeasors under a theory of comparative negligence?
The court held that the trial court properly instructed the jury to ascertain the percentage of negligence of each participant and that a concurrent tortfeasor could not be held liable for damages caused by an unknown concurrent tortfeasor. The court held that in a comparative negligence case, a concurrent tortfeasor was liable only for the percentage of damages for which he was held accountable.