|Posted:||December 11, 2014 12:02 PM|
|From:||Senator Stewart J. Greenleaf|
|To:||All Senate members|
|Subject:||Joint and several liability exception for children|
|Through Act 17 of 2011 the General Assembly amended section 7102 of the Judicial Code, Title 42 of the Pennsylvania Consolidated Statutes, relating to comparative negligence, specifying when the concept of joint and several liability applies.
The legislation provided a general rule that when there are multiple defendants in a civil case, a defendant’s liability is several and not joint. Each defendant is responsible for that defendant’s own portion of the negligence which caused the harm to the plaintiff. The court must enter a separate judgment for the apportioned amount of each defendant’s liability.
Act 17 provided for five exceptions to this rule. In cases involving these exceptions, a defendant’s liability is joint and several, and the court must enter a joint and several judgment in favor of the plaintiff and against each defendant for the total amount awarded as damages. Each defendant who is negligent is individually responsible for the entire amount owed to the plaintiff but a defendant who pays more than that defendant’s share has the right of contribution from the under or nonpaying defendants.
I intend to reintroduce Senate Bill 749 from last session. My legislation adds a new exception to which joint and several liability will apply. The new exception is aimed at protecting the interests of minors. Pennsylvania law has always favored the protection of children, and it should not be the public policy of Pennsylvania to deprive them of compensation when they are injured.
The current exceptions include (1) an intentional misrepresentation; (2) an intentional tort; (3) where the defendant has been held liable for not less than 60% of the total liability apportioned to all parties; (4) a release or threatened release of a hazardous substance; and (5) a civil action in which a defendant has violated a provision of the Liquor Code relating to the liability of licensees (dram shop liability). I am adding a sixth exception to cover a case where a person less than 18 years of age has a beneficial interest. A beneficial interest includes when a child is injured through the negligent action of others and in certain cases when the child has a derivative claim as a beneficiary.
The exception for a minor who has a beneficial interest is not as broad as it may seem. A Superior Court case, affirmed by the Supreme Court, held that an injury to a parent does not give rise to a derivative claim on behalf of a child. However, the language is necessary because where a parent is killed, a child does not have a direct claim but does have a derivative claim either as a beneficiary of an estate or under the Survival Act, or as a beneficiary of the Wrongful Death Act. The latter specifically recognizes a child’s loss of guidance, tutelage and parental service.
Introduced as SB209