Update: Pa. Superior Court Holds That Plaintiff Must Be Found Comparatively Negligent For Fair Share Act To Apply
A Superior Court panel in Spencer v. Johnson, et. al., 2021 PA Super 48 (2021) has held that a plain reading of the Fair Share Act limits applicability only to situations where plaintiffs are comparatively at fault. In cases where the plaintiff’s conduct is not at issue, courts should apply the common-law principles of joint and several liability that had been in place before the 2011 Act took effect.
Spencer concerned a motor vehicle/pedestrian accident with multiple parties and a $13 million judgment. The plaintiff pedestrian was lawfully crossing a street when struck by a vehicle operated by defendant Johnson. Other parties included Johnson’s wife and her employer/owner of the vehicle, all of whom were found partially liable for the accident. Under the Fair Share Act, defendants are liable only for the percentage of damages for which they have been found liable, and can only be made to pay a full award if they are found more than 60% responsible for the injuries or in other limited exceptions set forth in the Act. Before the Fair Share Act took effect, Pennsylvania’s longstanding joint and several liability rule permitted a plaintiff to recover the full amount of a verdict from any liable defendant no matter how liability was apportioned by a jury among several defendants.
Superior Court President Judge Jack Panella in Spencer held that the “Fair Share Act concerns matters where a plaintiff’s own negligence may have or has contributed to the incident.” Analyzed in light of the history of the Fair Share Act’s predecessor, the Comparative Negligence Act, the Court found that the General Assembly intended only to “modify which parties bear the risk of additional losses in cases where the plaintiff was not wholly innocent.” The Court found “no indication the legislature intended to make universal changes to the concept of joint and several liability outside of cases where a plaintiff has been found to be contributorily negligent.”
Spencer also held that the percentage liability of an employee and vicariously liable employer could be added together to meet the 60% threshold needed to impose joint several liability under the Act.
Spencer considerably alters the legal landscape for tort actions by limiting the Fair Share Act solely to cases where a plaintiff is partially at fault portending the reapplication of joint and several liability after a decade of defendant liability limited to percentage apportionment.