The Constitutional Validity of the Modification of Joint and Several Liability in the Washington Tort Reform Act of 1986

With the Washington Supreme Court having recently invalidated the statutory cap placed on awards of noneconomic damages to tort plaintiffs as a violation of the state constitutional right to a jury trial, we may expect an increasing onslaught upon other controversial provisions of the Washington Tort Reform Act of 1986. In particular, the modification of the common law doctrine of joint and several liability, which was also accomplished by the Tort Reform Act and is codified at section 4.22.070 of the Washington Revised Code, has already become a target of plaintiffs' attorneys in tort litigation and has also come under repeated attack by commentators in Northwest regional law reviews. The need for eventual resolution of this dispute by the Washington Supreme Court seems certain. To balance the legal debate, this Article suggests that the statutory revision and partial abolition of joint and several liability was the necessary and appropriate next step in the evolution of modern tort law to a system founded upon the concept of comparative fault among all parties.

Properly understood in its historical context and interpreted under established, rather than innovative and unfounded, principles of constitutional law, the modification of joint and several liability passes muster under the Washington Constitution.