Imagine that you are stopped at a red light with one vehicle in front of you. Without warning, a third vehicle rear-ends you – propelling you forward into the vehicle in front of you. The driver of the front vehicle then brings a negligence suit against you and the third driver, seeking $10,000 in damages. Your striking of Plaintiff’s vehicle and ultimately his damages, in your mind were clearly caused by the third driver’s failure to stop – i.e. his negligence. However, the jury inexplicably finds you 1% liable and the third driver 99% liable.
Common sense may suggest that in this scenario, the third driver would be responsible for 99% or $9,900 of Plaintiff’s damages and you would only be responsible for the remaining 1% or $100. However, the legal concept of joint and several liability allows a plaintiff to collect the entire award from any defendant who was found liable to any extent, even if only a mere 1%. In other words, you and the third driver would both be responsible for Plaintiff’s entire $10,000 judgment and he could collect the entire amount from either one of you.
Joint and several liability was consistently and exclusively applied in Pennsylvania until 2011 when the Fair Share Act was passed. The Fair Share Act limits a defendant’s liability to their “fair share” of an award. In the above scenario, under the general principals of the Fair Share Act, you would only be responsible for 1% of Plaintiff’s total judgment – the third driver would be responsible for the remaining 99%.
However, nothing in the law is ever that simple. The Fair Share Act, is not without its “fair share” of exceptions. One major exception is that joint and several liability applies defendants who are found 60% or more liable. In our scenario, the third driver would be responsible for Plaintiff’s entire $10,000 award due to his percentage of liability exceeding 60%. You would remain responsible for only 1% of the award based upon your 1% liability share. Joint and several liability also remains applicable in actions for intentional misrepresentation and intentional torts, e.g. assault, battery, and trespass.
Defendants and insurance companies alike rejoiced upon the passing of the Fair Share Act in 2011. The Act operated in the aforementioned manner, essentially unquestioned for ten years. That is until the Superior Court’s 2021 decision in Spencer. Spencer v. Johnson 249 A.3d 529 (Pa. Super. 2021).
Spencer involved a motor vehicle accident between a pedestrian and an unlicensed driver who was driving a company vehicle that had been entrusted to his wife by her employer. The jury found the driver 36% liable, his wife 19% liable and the wife’s employer 45% liable.
On appeal, the Superior Court held that the wife’s and employer’s liability should be combined to produce a total of 64% liability, exceeding the 60% liability threshold and subjecting them to joint and several liability under the Fair Share Act.
Although the question at issue in the case was decided at this point, the Court engaged in a sua sponte or voluntary discussion of the applicability of the Fair Share Act. Essentially, the Court determined that in order for the general principles of the Fair Share Act to apply, a plaintiff must be found to have negligently contributed to his own injuries. In other words, unless a plaintiff is found negligent to some degree in causing his damages, the defendants are jointly and severally liable. According to the Spencer Court in the above scenario you and the third driver would be jointly and severally liable for the entire award as no amount of negligence or liability was attributed to Plaintiff.
This discussion in Spencer caused immense confusion. It was unclear whether Pennsylvania Courts would follow it or whether it would considered mere dicta due to its sua sponte and irrelevant nature. Shortly after Spencer, the Superior Court relied upon the same to sua sponte instruct a trial court to apply joint and several liability to the defendants in a slip and fall case. Snyder v. Hunt, 268 A.3d 416 (Pa. Super. 2021).
At this time, there appears to have been only three occasions in which trial courts have directly considered Spencer – all three of which followed and imposed joint and several liability where fault was not apportioned to the plaintiff. In Tucchi, the Northumberland County Court of Common Pleas explicitly referred to Spencer as precedential. Tucchi v. Carroll, No. CV-2018-1794 (Pa. Com. Pl. Northumberland Cnty. 2023). Referred to Spence as “dicta” and “absurd” but nevertheless followed its ruling. Ace v. Ace, et al., 6242 CIVIL 2020 (Pa. Com. Pl. Monroe Cnty. 2023). The Federal District Court for the Western District of Pennsylvania has also imposed joint and several liability in reliance on Spencer. Anderson v. Motorist Mut. Ins. Co., 608 F. Supp. 3d 214 (W.D. Pa. 2022).
In conclusion, although many questions remain regarding the precedential nature of Spencer, both Pennsylvania and Federal trial courts have begun to follow the same. Defendants must give due consideration to the possibility of joint and several liability in all negligence cases moving forward.