Washington's Partial Rejection and Modification of the Common Law Rule of Joint and Several Liability

In this discussion of the 1986 rejection and modification of the joint and several liability rule, an abbreviated account of that rule's operation prior to the statute's enactment is followed by an analysis of how the adoption of comparative negligence provided the basis for a successful attack on joint and several liability. Comparable developments in other states will be reviewed. Attention will then be given to the provision in the Washington statute which requires allocating fault to an "entity" even though that "entity" has not been, or cannot be, joined as a defendant, reducing the recoveries of plaintiffs who are not at fault in the slightest degree. Plaintiffs who are partially at fault may have to pursue several defendants to obtain compensation, and that compensation similarly be reduced by allocating fault to non-joined entities.

Allocating fault to parents or spouses will produce what were probably uncontemplated results and complications. Negotiating settlements in tort cases will be drastically affected and involve parties who would not have been sued or retained in litigation under prior standards. The statute will encourage litigating third party tort claims of injured workers and result in a worsened experience rating for employers and higher losses for self insurers under workers compensation. The conclusion is that the statute requires redrafting and amendment even if its objectives remain acceptable after disclosing what must have been uncontemplated consequences.