Efficiency, Fairness, and Common Sense: The Case for One Action as to Percentage of Fault in Comparative Negligence Jurisdictions That Have Abolished or Modified Joint and Several Liability
1995 I 48 Vand. L. Rev. 739 I J. Scott Hickman
For full article with citations, please visit: https://scholarship.law.vanderbilt.edu/vlr/vol48/iss3/8/I.
I. Introduction
Plaintiffs are the masters of their own actions. They decide when, where, and whom to sue. Although the law has evolved in ways that limit a plaintiffs procedural choices, plaintiffs enjoy a growing number of situations in which they can recover, and an increase in the number of possible defendants. For example, governmental tort liability statutes, while limiting procedural choices, now allow plaintiffs to sue government entities. Modern jurisdictional rules give courts a wider reach and thus enable plaintiffs to reach more defendants in one action. Perhaps most importantly, a plaintiffs own negligence no longer bars recovery in most jurisdictions. The advent of comparative negligence has enabled many more plaintiffs to win judgments.
Another recent development in tort law that has greatly affected plaintiffs and defendants alike is the rejection of joint and several liability. The past decade has seen a marked increase in the number of states that have either abolished or modified the joint liability rule and replaced it with some form of comparative fault.
Under a joint liability regime, plaintiffs could sue a single defendant and still obtain a full recovery. Under comparative fault, however, a plaintiff may have the opportunity to sue defendants in separate, consecutive actions, keeping a defendant in reserve as a hedge against a bad result in the first case." This possibility creates inefficiencies that do not exist in joint liability regimes.
This Note identifies the barriers and disincentives to sue all defendants in one action in a comparative fault jurisdiction, the costs associated with these disincentives, and a possible solution in the form of a one-action rule for systems of comparative negligence without joint and several liability. Part II of this Note reviews the developments of the doctrines of comparative negligence and comparative fault and the corresponding demise of contributory negligence and joint liability. In addition, Part II notes the procedural differences in a joint liability regime and one employing comparative fault. Part III illustrates the possibilities for inefficient plaintiff behavior created by the modification of joint liability. Part III also observes that some courts have not stopped multiple litigation, despite their recognition of the inefficiencies of strategic behavior by plaintiffs. Part IV argues that comparative fault systems should, therefore, contain mandatory joinder provisions to combine the procedural efficiency of joint liability with the substantive fairness of comparative fault.
II. The Advent of Comparative Fault and the Demise of Joint and Several Liability
A. From Contributory Negligence to Comparative Negligence
In 1950 only five jurisdictions in the United States applied comparative negligence to most negligence cases. By 1995, forty-six states had adopted comparative negligence by either legislative or judicial action. This move toward comparative negligence has been defined as a reaction against the harsh results of the contributory negligence defense available at common law. Contributory negligence foreclosed recovery for any plaintiff who was negligent, even if that negligence was slight in comparison to the defendant's. Comparative negligence reformed this system by allowing a plaintiff to recover damages in proportion to the fault of the defendants.
The first states to adopt comparative negligence generally did so by legislative action. In states where the legislature had not acted, courts generally felt constrained to continue to follow the rule of contributory negligence, although many courts believed that the contributory negligence defense produced unfair results and was of dubious legal pedigree. A breakthrough in the judicial adoption of comparative negligence occurred in the mid-1970s when the supreme courts of Florida and California instituted the doctrine. Since then, ten more states have judicially adopted comparative negligence.
Typically, following the adoption of comparative negligence by the courts, state legislatures codified the doctrine during the wave of tort-law reform that swept the nation in the 1980s. Thus, in retrospect, the reluctance of the courts to make significant steps toward reform in the area of tort law was not justified. No legislature has reversed a state supreme court decision instituting comparative negligence. Rather, the legislatures have stepped in and codified the principle in question, allowing for more efficient and uniform implementation.
B. From Joint Liability to Comparative Fault
As state legislatures began to reform the tort system, they faced questions that the (often judicial) decision to move to comparative negligence generally left unresolved. Many state legislatures simply enacted comparative negligence using broad language and left the details up to the courts. Increasingly, however, legislatures have become more activist in dealing with the collateral issues involved in a comparative negligence system. One of the areas in which legislatures have been most active is in deciding whether or not to modify or abolish the doctrine of joint and several liability. By 1995, thirty-four of the forty-five comparative fault jurisdictions had amended their law on joint and several liability by legislative action.
All comparative fault systems attempt to balance two conflicting objectives. One is that each person involved in an action be liable only in proportion to his or her share of the total fault. The other is that full compensation be awarded to injured plaintiffs. These competing goals represent conflicting values and cannot both be given priority by any given system.
Allocating the fault of nonparties in tort cases, especially when they are insolvent, is at the center of the debate on joint and several liability. The presence of an insolvent party generally means either that an injured plaintiff receives less than full compensation, or that solvent defendants are liable for an amount greater than their proportional fault. In jurisdictions retaining joint and several liability, the burden of insolvency falls upon the party defendants who are forced to pay the full amount of the plaintiffs injuries, regardless of the proportion of their fault. In a jurisdiction that has abolished joint and several liability, this burden falls on the plaintiff. These two positions represent the extremes. Some jurisdictions have reached a middle position by allocating the share of an insolvent tortfeasor among all parties, including the plaintiff, in proportion to their relative fault However, the modern trend away from joint liability is still inherently a choice of proportional fault and, therefore, fairness for defendants over full compensation for plaintiffs.
Joint and several liability was instituted under very different circumstances than exist today. First, at the time joint and several liability developed, contributory negligence completely barred recovery; only innocent plaintiffs could recover. Comparing the tortfeasor to the innocent plaintiff, it did not seem unfair that the guilty party bear the risk of other insolvent, immune, unreachable, or unknown defendants. Secondly, it was widely believed that juries were incapable of apportioning fault among several defendants. The advent of comparative fault has undercut the first rationale and rests upon the converse of the second.
The very basis of comparative negligence is that the relative fault of individual actors can be determined and that each actor should be held responsible for that degree of fault. The basic fairness concerns that led to the demise of contributory negligence also militate against the continued use of joint and several liability. If it is unjust for a plaintiff who is ten percent negligent to recover nothing, it is equally unacceptable to require a defendant who is ten percent at fault to pay the entire recovery, especially when the plaintiffs fault is greater. Many statutes that have modified, but retained, some form of joint liability recognize this inequity and hold a defendant jointly liable only if the defendant's fault is relatively large in comparison to the plaintiffs fault.
The inequities that can result from retaining pure joint and several liability in comparative negligence jurisdictions are illustrated in many cases, one of which is Dunham v. Kampman. In Dunham a husband and wife, while riding a motorcycle, collided with an automobile. In the following suit, the jury found the husband, who drove the motorcycle, to be ninety-nine percent at fault and the automobile driver one percent at fault. Although Colorado's comparative negligence statute prevented the husband from recovering damages from the defendant, operation of joint and several liability required the defendant to compensate the wife for the entire amount of her injuries because her husband was immune from liability.
Much of the drive to modify joint and several liability resulted from a perceived insurance "crisis" in tort law. Local governments, often targeted as "deep-pocket" defendants with relatively low comparative fault, cited joint and several liability as a cause for increasing taxes and decreasing services. The call for tort reform, based on this perceived crisis, overwhelmed state legislatures across the nation in the mid-1980s. Many state legislatures responded with wide-ranging abolition and modification of the joint and several liability rule.
C. A Procedural Comparison of Comparative Fault and Joint Liability
The rise of comparative fault and the demise of joint and several liability have significantly altered the dynamics of an action in which there are at least two party defendants possibly at fault. Under joint and several liability, a plaintiff may choose to sue only one defendant, usually the so-called deep-pocket, and recover all her damages from that party. The defendant would institute an action for contribution against the other tortfeasors, assuming a right of contribution existed in the jurisdiction. The method of determining the amount of money each co-tortfeasor owed in contribution varied, but generally involved dividing the amount of the judgment into equal shares on a pro-rata basis. In jurisdictions that have adopted comparative fault and retained joint and several liability, the preferred method is to require contribution based on the relative findings of fault in the original action. In either situation, the party defendants are responsible for collecting from all nonparty co-tortfeasors and bear the risk of nonrecovery.
In jurisdictions that have abolished joint and several liability, however, the burden of collecting from each separate tortfeasor falls upon the plaintiff. Each defendant is responsible to the plaintiff only for its share of the total damages as apportioned by the findings of comparative fault. This shifted burden removes one incentive for the plaintiff to sue only the deep pocket. However, it creates new troublesome incentives that tort-reform statutes have not addressed.
III. The Problem of Inefficient Behavior by Plaintiffs in Comparative Negligence Jurisdictions with Modified Joint Liability
A. A Description of the Problem
Changes in the law of joint and several liability have created new opportunities for inefficient plaintiff behavior. With joint and several liability, a plaintiff needed to bring only one action to recover her full damages. The defendant was then responsible for a second action to obtain contribution from nonjoined parties. Under joint and several liability, joinder rules allowed defendants to join any potentially liable party that was not initially joined by the plaintiff as a third-party defendant to the original action. As a result, for all practical purposes, all litigation occurred efficiently in one case. This process conserved judicial resources and eliminated the danger of inconsistent judgments.
Without joint and several liability, a plaintiff may choose to bring two or more separate actions to obtain full compensation for her injuries. A plaintiff may bring separate actions for purely strategic purposes. That is, a plaintiff may keep a defendant in reserve so that if the first trial did not result in a sufficient judgment, she would have a second chance at a satisfactory recovery. This strategy is even more tempting in a jurisdiction that follows the Uniform Comparative Fault Act, which mandates that only the fault of the present party defendants can be at issue in a case. In either situation, the plaintiff has an incentive to sue one party, often the "deep pocket," first and reserve other defendants for possible future actions involving the same injury.
This practice occurs despite the fact that the majority of states have adopted so-called "mandatory joinder" provisions based on Rule 19 of the Federal Rules of Civil Procedure. Federal Rule 19 and its state progeny mandate the joinder of persons required for a 'Just adjudication!' of the case and require the plaintiff to identify all such nonjoined parties in the complaint. The rule does not, however, address the sanction for failure to identify nonjoined, but potentially liable, parties in the complaint. This Note argues that states should make the failure to join potentially liable persons a bar to future actions.
A plaintiff's ability to bring multiple actions in comparative fault regimes has resulted in a loss of efficiency. The Supreme Court has noted the obvious inefficiency that results when a defendant is forced to litigate the merits of a case that a plaintiff has lost in previous litigation. In a comparative fault context, plaintiffs may "lose" when the result of the first trial leaves them with either no recovery or with less recovery than they believe justified. In Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, the Court strongly criticized the possibility of multiple actions when it noted that allowing serial litigation against successive defendants represents a lack of discipline or interest by the courts and encourages plaintiffs to pursue inappropriate strategies. This same inefficiency occurs when a plaintiff sues multiple tortfeasors, voluntarily or involuntarily, in serial actions involving the same or new theories of liability.
Joint and several liability schemes that allowed for the joinder of third-party defendants gave defendants incentives to join all potentially liable parties. Controversies were litigated efficiently in one action. The shift to comparative fault removed these incentives because henceforth defendants were liable only for their share of the plaintiffs injury. The loss of this efficiency-enhancing aspect of joint and several liability cannot be an intended result of tort reform. As discussed in sub-Part B below, there is a split among courts about whether to bar serial suits. This Note, thus, proposes barring successive suits, a solution that would recapture the efficiency of the joint and several liability system without compromising the substantive gains achieved through comparative fault.
B. The Split among the Courts
The issue that most often confronts courts facing multiple actions is whether doctrines akin to res judicata or claim preclusion bar a plaintiff from bringing a second claim against a new defendant. Courts that have barred successive suits have relied on several theories to preclude them, including the entire controversy doctrine, collateral estoppel, and statutory interpretation. These courts have held that the inefficiencies and inequities of allowing multiple actions counsel against allowing such actions. In contrast, courts refusing to implement a ban on successive actions have done so because they did not believe that such a ban was within the spirit of the comparative fault statute, because the fault of the plaintiff relative to the defendant in the second action was not compared in the first case, and because different standards would govern a second case alleging a different cause of action.
- Court Rationales for Barring Successive Suits
a. The Entire Controversy Doctrine
In Cogdell v. Hospital Center at Orange, the New Jersey Supreme Court applied that state's unique entire controversy doctrine in determining that a plaintiff must join all possible defendants in one action or lose the chance to recover in subsequent actions against non-joined parties. In Cogdell, the plaintiff delivered a baby through emergency Cesarean section at the defendant hospital. The baby suffered permanent injury during or shortly after the birth. The plaintiff sued both her obstetrician and the emergency room physician for malpractice. Although the parties settled during jury deliberations, the jury returned a verdict for the defendants, thus negating the settlement. The plaintiff appealed the issue of the preclusive effect of the settlement to the New Jersey Supreme Court, but the appeal was denied.
While the appeal was pending, the plaintiff commenced a second action against the hospital, claiming negligent delay in the commencement of the operation. The hospital moved to dismiss, asserting that New Jersey's entire controversy doctrine barred a subsequent independent action against it.
The Cogdell court concluded that the joinder of parties was mandatory under the entire controversy doctrine. The court cited several factors in its decision, including judicial economy and avoidance of waste, efficiency and reduction of delay, fairness to the parties, and the need to adjudicate all claims in one action. The court also justified its decision by reference to the litigation explosion burdening judicial resources. Finally, the Court noted that although the hospital was not involved in the first action, its ability to defend by pointing to the doctors' role in the plaintiff's injuries had been severely compromised by the first action. The court noted that, under the facts of Cogdell, a second action would be a wasteful and inefficient reprise of the first suit.
The plaintiff in Cogdell knew long before trial that the hospital staff had been slow to assemble for the procedure and that the defendant-physicians considered this delay to be a factor in the injury to the child. The plaintiff instituted the second suit because of her dissatisfaction with the outcome of the first trial.
b. Collateral Estoppel
In Kathios v. General Motors Corporation, the First Circuit Court of Appeals dismissed the plaintiffs product liability claim against the defendant because plaintiff had a full and fair opportunity to litigate the issues in the first trial. Kathios was a passenger in an automobile involved in a single-car accident following a drinking spree by all the occupants. Kathios settled with the driver and with one bar at which they drank, but his dram-shop action against a second bar went to trial. Although he presented evidence of damages in excess of $800,000, the jury returned a verdict for $275,000, and his motion for additur was denied. Two years later, Kathios instituted a second suit against the manufacturer of the car, General Motors, on a product liability theory.
The Kathios court found that the issues in the second case, such as damages and comparative negligence of the plaintiff, were identical to those in the first case. The court observed that the plaintiff's attempt to relitigate the cause of his injuries was a manifestly inefficient waste of judicial resources and, therefore, could not be allowed. Because Kathios could offer no new evidence apart from his attempt to proceed under a new theory of liability, the court of appeals held that Kathios could not maintain a second cause of action against General Motors.
Kathios argued that he should be allowed to relitigate the issue of his comparative negligence as regards each individual defendant in a new action. The court found that such repeated litigation would waste judicial resources06 and would put defendants in an unfair and untenable position because, unless the negligence of all possible parties is considered in one action, a defendant might be forced to pay a judgment that is not in proportion to the defendant's percentage of fault. The court hypothesized that a plaintiff who was ten percent negligent could sue a defendant who was also ten percent negligent and recover fifty percent of her damages. The court deemed this result unacceptable as against public policy and as antithetical to the goals of New Hampshire's comparative fault statute.
c. Statutory Interpretation: Implying a One-Action Rule
While the First Circuit Court of Appeals and the New Jersey Supreme Court relied on judicial doctrines to bar successive actions, the Kansas Supreme Court relied on its interpretation of the Kansas Comparative Fault Act to preclude successive actions as to fault in tort cases. The Kansas Supreme Court interpreted this "one-action rule" in Albertson v. Volkswagenwerk Aktiengesellschaft. In Albertson, a case similar to Kathios v. General Motors, the plaintiff was involved in an automobile accident and sued the driver of the other vehicle first. That trial resulted in a determination of sixty percent fault to the defendant and forty percent to the plaintiff. Subsequently, Albertson filed a second suit in federal district court against Volkswagen, alleging strict liability for a defective product. After the defendant moved for summary judgment, the district court certified the question of whether this second action was allowed under Kansas law to the Kansas Supreme Court.
The Kansas court held that the second action was barred by the finding of comparative fault in the first trial. The court reasoned that the first comparative fault action apportioned all possible fault, both of parties and nonparties, that led to the plaintiffs injury. There being no fault remaining to apportion to the defendant in the second case, the plaintiff was not allowed to bring a second action. - Court Rationales Allowing Successive Suits
a. Statutory Interpretation: Finding No One-Action Rule
Not every court that has considered the matter, however, has concluded that its state's comparative negligence statute requires joinder of all parties in one action. In Selchert v. State, the Iowa Supreme Court determined that Iowa's statute did not require mandatory joinder. The court held that, under Iowa law, the prior action did not collaterally estop the plaintiff from bringing a second claim against a new defendant. According to the court, only the fault of the parties to the first action had been determined in the previous suit, and, therefore, the defendant's argument that there was no longer any fault to allocate in the second action failed. The court indicated an appreciation for the modern trend toward one-action rules, but strictly interpreted the Iowa statutes as prohibiting this result. Although the defendant asked the court to follow the lead of Albertson, the Iowa court refused to do so, holding that the implementation of a one-action rule would require an act of the legislature. The Iowa Supreme Court's refusal to enforce a one-action rule without explicit authorization from the legislature illustrates the danger of legislative silence on this issue.
b. Issues Not Precluded
Some courts have also refused to apply the judicial doctrines of res judicata and collateral estoppel to preclude subsequent actions. Rather, they have allowed the second suit to go forward because the first trial did not involve the second defendant, nor did it resolve issues relating to the second defendant's fault.
For example, in O'Connor v. State the plaintiffs decedent was killed by a bicyclist while crossing a street on property owned by the state. In a previous action, the plaintiff had sued the bicyclist and others involved in the time trials in which the bicyclist was participating. In that action, the jury found the plaintiffs decedent sixty percent at fault. The plaintiff then sued the state, which had allowed the use of the property for the time trials.
The New York Court of Appeals rejected the state's argument that collateral estoppel barred relitigation of the comparative negligence of the decedent. The court reasoned that the relative negligence between the decedent and the state was not at issue in the first case.
In the second action the state and the decedent were each found to be fifty percent at fault. The court allowed the state to contest the amount of damages found in the first case, but the plaintiff was estopped from claiming damages in excess of those found in the first case. The result was that the decedent was found sixty percent at fault in relation to the bicyclist, fifty percent at fault in relation to the state, and the amount of damages sustained by the decedent was found to be different in each case. Such a result leads to confusion and inefficency, and erodes confidence in the accuracy of the legal system by allowing multiple percentages of fault and multiple findings of the amount of damages, which should, in theory, be impossible.
Similarly, in Drescher v. Hoffman Motors Corporation, a federal district court refused to find issues relating to the second suit precluded by the first suit. In Drescher, the plaintiff was an automotive salesman and technician who sold, installed, and repaired electronic devices designed to start an automobile by remote control. While servicing a device that he had previously sold, Drescher was injured when the car on which he was working accidentally started and struck him. In his suit against the owner of the car, the Girard Motor Sales Company, Inc., on whose premises he was working, the jury found Drescher to be eighty percent at fault for his injuries. Following the unsuccessful conclusion of this first action, Drescher sued Hoffman Motors, the distributor of the car, on theories of negligence in both design and warning, breach of implied warranty, and strict tort liabilty.
The district court rejected Hoffman Motors's collateral estoppel argument that all issues material to Drescher's action against it had been litigated in the previous suit. As did the court in O'Connor, the court reasoned that Drescher's negligence in relation to Hoffman Motors had not been at issue in the first case. Further, the court found that Drescher's failure to join Hoffman Motors in the earlier case did not justify disallowing the second action altogether.
C. The Need for Legislative and Judicial Action
As these cases illustrate, courts have reached inconsistent results when deciding whether to bar successive suits involving the same occurrence. Courts have interpreted similar comparative fault statutes in inconsistent ways. For example, the statute which the Kansas Supreme Court interpreted in Albertson to mandate a one-action rule is not substantially different from the Iowa statute which was found not to support such a rule in Selchert. Moreover, a court that agrees with the policy goal of combining all actions in one trial, as did the Selchert court, may be unwilling to enforce such a rule absent clear legislative authorization. Thus, state legislatures should expressly provide that all defendants must be joined in one action and that subsequent actions will be barred.
However, even without express legislative authorization, the decisions in Cogdell, Kathios, and Albertson are justifiable. Before the modification of joint and several liability, the system fostered efficiency. A court should readily assume that the legislature, in adopting comparative fault, did not intend to create the inefficiencies attendant to serial suits.
Courts cannot remain unwilling to assume that the legislatures only inadvertently eliminated the efficiencies of joint and several liability. Absent express legislative authorization, a court should look to the doctrines of collateral estoppel and res judicata to preclude the inefficient results of serial suits in comparative fault jurisdictions.
IV. A Mandate for One Action as to Fault
A Justification of One Action
A rule requiring plaintiffs to join all possible defendants in a single action would serve the goals of efficiency, fairness, and consistency of judgments in comparative fault jurisdictions. That is, a one-action rule would recapture the inherent efficiency of joint liability systems, retain the fairness of comparative fault, and reduce the chance for inconsistent judgments, which undermine confidence in the judicial system. This Part discusses each of these policy goals in turn.
- Recapturing Efficiency
Almost everyone agrees there is too much litigation. While we might disagree as to the best course of action to decrease the load on courts, we should at least be able to agree that duplicative litigation wastes scarce judicial resources and should be eliminated. As Professors James and Hazard have observed, the inefficiency and inconsistency involved in multiple suits is easily avoidable.
As detailed above, the shift to comparative fault inadvertently decreased judicial efficiency by encouraging strategic behavior on the part of plaintiffs. By eliminating the evils of one opportunity for strategic behavior, the selective suing of deep pockets, state legislatures unwittingly created another, allowing plaintiffs to litigate fault twice against separate defendants.
Some commentators have suggested that joinder rules should be expanded to enable courts to take a more active role in avoiding duplicative litigation. Multiple litigation should never occur simply because of joinder deficiencies. Duplicative litigation is especially troubling when it results from a conscious choice by plaintiffs to increase the likelihood and amount of their recovery. Though some would leave joinder to the discretion of parties in the belief that they have incentive enough to create efficiency, such choices should be removed from parties who are likely to engage in strategic behavior that places undue strains on judicial resources.
Preclusion of relitigation is particularly justified when a plaintiff initiates a second suit against a defendant whom she could have joined in the first action, but was either held in reserve or was sought out following an unsuccessful result in the first case. In addition to decreasing the total volume of suits, requiring plaintiffs to join all possible defendants in one action would provide quicker and more streamlined litigation.
Mandatory joinder may cause plaintiffs to join defendants whom they would not initially sue under the present system, but courts can dispose of unfounded claims relatively early in the litigation. If a party whom the plaintiff otherwise would not have joined is found liable, the outcome serves efficiency because it better serves the deterrence goal of the tort system by introducing a deterrent to an at-fault party who otherwise would not have been identified. - Retaining Fairness
Courts and legislatures adopted and codified comparative fault in the place of joint liability because they believed the results under comparative fault were more just. Any modification or interpretation of this fault system should reinforce this choice. As discussed above, legislatures that adopted some form of comparative fault valued the goal of fairness to defendants over that of full recovery for plaintiffs. Joint liability, while it produced an efficient system, did not produce a fair one.
More inclusive joinder reinforces this policy choice in favor of greater fairness. Determining all fault in a single action by requiring the plaintiff to join all possible parties would protect second defendants from the harm that may result if the litigation goes forward in their absence. The defendants in serial cases would face severe disadvantages if they were forced to defend themselves in a jurisdiction that allows only the fault of the parties to be at issue. It would also protect plaintiffs in jurisdictions where the fault of nonparties can be considered by preventing the defendants from "whipsawing" the plaintiff through an empty chair defense.
Because it creates the possibility of inconsistent judgments, multiple litigation can force defendants to pay a greater share of the plaintiff's damages than they would have if the fault of all parties were determined in one action. Yet, legislatures adopted comparative fault to eliminate this very result. A rule of mandatory joinder would better serve the policy choice made by the legislatures in adopting comparative fault.
Defendants to second suits also often become the victims of desperate plaintiffs who feel that their action against the party primarily (if not solely) responsible for their injury resulted in an unacceptable judgment. In these second suits, plaintiffs often rely on attenuated causes of action that may not have been appropriate in the first case. Strategic use of successive suits unfairly and inefficiently forces serial defendants into the role of insuring the plaintiff against unsatisfactory recovery. - Reducing Inconsistency
A final justification for a one-action rule to determine fault is the avoidance of inconsistent judgments. Courts and commentators have become increasingly vocal in their concerns over the effect inconsistent judgments have on public confidence in the integrity of the judicial system.
Inconsistent judgments from multiple suits involving a single occurrence with multiple party defendants can harm any of the parties to the suits, including the plaintiff. To take an example from Professor McCoid's article on inconsistent judgments, if a single nonnegligent plaintiff, B, who should recover from A or C, proceeds against A and C serially, it is possible that B will recover from neither, solely because of A's and C's use of the empty chair defense in their independent suits. One might argue that when plaintiffs choose to proceed in this manner for strategic purposes, they take the risk of nonrecovery. This scenario seems particularly unjust, however, when the plaintiff is completely innocent and can satisfactorally prove both damages and A's or C's liability. The result of mandatory joinder would, therefore, protect plaintiffs.
Although the possibility that a plaintiff might lose both cases may encourage plaintiffs to join all parties voluntarily, a one-action rule would prevent plaintiffs from seeking out defendants who might be liable on different and often attenuated theories once a first trial has ended in an unsatisfactory result. Legislatures and courts should expressly preclude this result by denying plaintiffs this choice.
Serial suits with inconsistent results also disrupt the dual tort goals of deterrence and compensation. If the plaintiff, B, sues A and C serially, and in the first case, B v. A, A is found to be forty percent at fault and C, a nonparty, sixty percent at fault, B recovers forty percent of her damages from A. If in the second action, B v. C, A, now the nonparty, is found to be twenty percent at fault and C eighty percent, B will recover only sixty percent of her damages from C, constituting full compensation. These inconsistent judgments necessarily mean, however, that either A has overpaid or C has underpaid, depending on whether the adjudication of fault was correct in the first or second case. This result fails to serve the deterrence function of tort law because one party has been overdeterred and one party underdeterred.
Harm to the compensatory goal of tort law is illustrated by a third situation in which the nonparty is found to be mostly at fault in each case. Assume, for example, that in B v. A, A is found to be twenty percent at fault and C, the nonparty, is found to be eighty percent at fault. Then, in B v. C, C is found to be twenty percent at fault and the nonparty, A, is found to be eighty percent at fault. This situation serves neither the compensatory nor the deterrent goals of the tort system. The plaintiff has underrecovered by sixty percent, and one or both defendants have been underdeterred by an equal percentage.
B. Legislatures and Courts Should Enforce a One-Action Rule
As detailed above, a one-action rule would improve procedural efficiency, promote fairness to all parties involved in the incident leading to the suit, and reduce inconsistent judgments, which undermine both public confidence in the courts and the tort goals of deterrence and compensation. State legislatures should, therefore, enact statutes allowing plaintiffs to pursue only one action per incident and barring any further action by the plaintiff. To allow the state courts to reach all possible defendants, the statutes may need to grant broader jurisdictional authority as well.
The Kansas comparative fault statute provides a possible starting point in constructing such a law. The Kansas statute provides for the joinder of additional parties on the motion of a named defendant. The plaintiff must accept the joinder. Plaintiffs, however, may be in a better position than defendants to identify all potentially liable parties and are the only party with an incentive not to join possibly negligent parties.
To be effective, state statues should provide for more than the mere joinder of all parties. They should also make explicit what the Kansas Supreme Court found implicit in Kansas' joinder provision, that all causes of action arising out of a single occurrence or transaction should be litigated in one action. Subsequent litigation should be strictly prohibited.
Absent express provisions in their comparative fault statutes authorizing a one-action rule, courts should take judicial notice of the inefficiencies created by serial litigation and invoke the doctrines of collateral estoppel and res judicata to prevent plaintiffs from engaging in strategic and inefficient behavior. Courts should read comparative fault statutes as an effort on the part of the legislatures to increase fairness and efficiency. In light of such a reading, courts need not shrink from application of judicially created remedies to enforce fair and efficient litigation. The courts in many states enacted comparative fault by judicial action, without waiting for the legislatures to act. The same can and should be done in the area of one-action rules.
V. Conclusion
Under joint and several liability, plaintiffs recovered the entire amount of their damages in one action. Jurisdictions that either modified or abolished joint liability inadvertently discarded an effective tool for guaranteeing procedural efficiency, fair adjudication of claims, and consistent judgments. Simply put, the shift to comparative fault removed the incentives for defendants to join other potentially liable parties without placing comparable incentives on plaintiffs. Thus, the comparative fault statutes create the possibility of serial suits involving the same occurrence.
Plaintiffs have discovered this weakness and exploit it by using multiple actions to increase their recoveries. The results are both inefficient and unfair to defendants. However, the efficiency of a joint liability system is not inexorably lost in a comparative fault regime. It can be recaptured. It should be recaptured. Requiring plaintiffs to join in one action all potentially liable persons serves the same goals that led to the adoption of comparative fault. A system that requires plaintiffs to litigate their claims in one action would promote efficiency, fairness, and consistency, goals that are, becoming increasingly important in a litigious society.
Courts are justified in using judicially created preclusion doctrines or statutory interpretation to reach this outcome on their own, but such a result leaves the ultimate discretion to preclude a serial suit in the hands of the courts on a case-by-case basis. When a court will not preclude successive suits involving the same occurrence because of a perceived need to defer to the legislature, state legislatures should recast their comparative fault statutes to provide for a system in which a plaintiff can and must sue all parties in one action.
