Abstract

In 1987, the Arizona legislature enacted a statute that put Arizona among a growing number of states which have discarded the doctrine of joint and several liability. Under this doctrine, victims injured by multiple defendants can recover fully for their injuries from any one of the defendants. Thus, the victim is fully compensated even if one tortfeasor is insolvent, judgment proof, or unwilling to pay. Joint tortfeasors are then free to seek contribution from one another without further involving the victim. The new statute, Arizona Revised Statutes section 12-2506, abolishes the doctrine of joint and several liability in most situations, allowing the defendant in multiple tortfeasor personal injury actions to pay only the percentage of damages for which he was at fault. While the defendant is protected from paying for injuries which were caused partially by others, the chance that innocent victims will go uncompensated for their injuries is increased.

Although section 12-2506 acts as a virtually complete bar to the doctrine of joint and several liability, other states have enacted a variety of statutes with the same objectives, but with less drastic results. For example, some states permit the plaintiff to collect under the doctrine of joint and several liability only when they are entirely without contributory fault. Other states have retained joint and several liability to the extent that the plaintiff may recover her own monetary losses, such as medical expenses, while at the same time allowing liability to be apportioned for pain and suffering. Still others have abolished joint and several liability only where the defendant is found to be less negligent than the plaintiff. In that instance the plaintiff is able to recover fully when found to be less negligent than the defendant.

This Note examines the development of the judicial treatment of joint torts in the United States. The emphasis is on courts' efforts to develop a system of laws which both achieves the most equitable results for all those involved in a tort claim, and yet does not lose sight of the necessity that the claimant secure a full recovery for his injuries. The Note then focuses specifically on the property/casualty insurance industry's role in prompting the courts to shift away from ensuring compensation for the injured tort victim. Finally, the ramifications of a provision in the Arizona Constitution which guarantees that the tort victim's right to recover damages shall not be abrogated is scrutinized in light of section 12-2506.

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