Pennsylvania originally adopted a comparative negligence statute which became effective on September 7, 1976. Prior to this, Pennsylvania allowed the defense of contributory negligence under which there could be no recovery if any negligence of the plaintiff contributed to the injury. The test for contributory negligence in Pennsylvania was whether the plaintiff’s “negligence contributed in any degree, however slight, to the injury.” Crane v. Neal, 389 Pa. 329, 333, 132 A.2d 675, 677 (1957).
However, this doctrine was abolished by the introduction of the doctrine of comparative negligence as codified in 42 Pa. C.S.A. § 7102, amended on June 28, 2011, by Senate Bill 1131. As one result of the 2011 amendments, joint and several liability in Pennsylvania was all but abolished in Pennsylvania for negligence and personal injury actions, reduced to a list of exceptions. § 7102 provides that “where liability is attributed to more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of that defendant’s liability to the amount of liability attributed to all defendants and other persons to whom liability is apportioned.”
Thus, simply put, the doctrine of comparative negligence means that each party is liable in proportion to their percentage of liability. Pennsylvania and twenty-one other states follow the doctrine of modified comparative negligence, specifically the 51% Bar Rule, under which a damaged party cannot recover if 51% or more at fault, but can recover if 50% or less at fault, with recovery reduced by the plaintiff’s degree of fault. Under the 51% Rule, a plaintiff’s negligence will diminish, but not bar, his recovery, unless he is more negligent than the defendants. 42 Pa C.S.A. § 7102.
As an example, Al incurs $100,000 of damages and consequentially sues drivers Bob and Chuck for his injuries. Al is 40% at fault, Bob is 40% at fault, and Chuck is 20% at fault. Applying the rule of contributory negligence to this case, Al recovers nothing. Applying the rule of comparative negligence, specifically Pennsylvania’s modified version of it, Al recovers $40,000 from Bob and $20,000 from Chuck. Under the same rule, if Al was 51% or more at fault, he would recover nothing.
Previously in Pennsylvania, under the doctrine of joint and several liability, each defendant could be held responsible for the total verdict rather than the proportion of liability attributed to each defendant. A defendant’s only remedy was to seek contribution from his fellow tortfeasors. Separate judgments for defendants whose liability is found to be less than 60-percent, dispenses with this result. A court must enter a several and separate judgment in favor of the plaintiff against each defendant for the apportioned amount of that defendant’s liability. Also, a judge or jury may apportion fault to parties that have agreed to a settlement and been released prior to trial.
Defendants may still be held jointly and severally liable to a plaintiff in civil actions involving: (i) intentional misrepresentation; (ii) intentional torts; (iii) a determination that a defendant is liable for not less than 60% of the total liability apportioned to all parties; (iv) a release or threatened release of a hazardous substance; (v) an action in which a defendant has violated section 497 of the Pennsylvania Liquor Code (4 Pa C.S.A. § 497). A defendant who has been held jointly and severally liable retains the ability to seek contribution from any other defendant who has paid less than their apportioned share of liability.
If you have been injured, contact Powell Law at (570) 961-0777. The consultation is FREE and you don’t pay anything unless we win.