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FL: Leaving the Injured without Justice

The corporate lobby scored a big victory in Florida last week, as the Sun Sentinel detailed:

The Florida Senate gave final approval Thursday to a measure toppling a centuries-old principle of civil law that will make it harder for people to collect damages when they're injured in an accident.

The new law eliminates "joint and several liability", the principle that when a company negligently injures a person, they are responsible for the harm they cause, regardless of whether others also contributed to the harm. The traditional idea has been that the first priority is to make whole the victim. A particular wrong-doer is free to go to court to reclaim costs from others who might have also contributed to harm to the victim, but that relative apportionment of blame is irrelevant to whether the victim is made whole.

The new approach under Florida law is being sold as "fairly" assigning liability by assigning only a proportion of costs to any party harming a victim, but as Public Citizen outlines in this policy brief, it's all rhetorical sleight-of-hand to talk about a fair "portion" of the costs:

[A]n individual defendant's responsibility does not decrease just because another wrongdoer was also an actual and proximate cause of the injury...[I]mposing the full measure of that damage on an individual defendant is not unfair, as they have already been found to be fully responsible for the harm.

 

With joint and several liability, polluters for example can't as easily escape responsibility for their actions: "members of the community injured by these emissions can sue and collect the entire sum of damages from the corporate wrongdoers without proving the exact proportion of damage each corporation caused." Companies can sue each other to apportion blame, but that is left up to the guilty parties, not the injured plaintiffs, and if any of the companies go bankrupt, the doctrine of joint and several liability assured that the plaintiffs could collect their damages.

But under Florida's new approach, it's the guilty who will escape liability and the injured who will be left holding an empty bag when any wrong-doers declare bankruptcy.

While a number of other states have limited joint and several liability in recent years, there has been resistance in a number of states. In Illinois a few years ago, the state Supreme Court struck down a package of business-backed restrictions on tort damages, including limits on joint and several liability, as violating the state constitution. And Pennsylvania Governor Edward Rendell just last week vetoed a bill similar to Florida's that would have limited joint and several liability in that state.

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