State Rep. Dwight Kay: Joint liability is a job-killer in Illinois

News-DemocratApril 4, 2011 

Suppose an employee gets hurt in an accident at work, and the company is at least partially to blame because it didn't have proper safety precautions.

And suppose a couple of subcontractors are also involved and they share some of the blame. When the matter goes to court, who should be held responsible, especially if some of the parties already reached settlements with the worker?

These issues, involving the complicated matter of "joint and several liability," are behind a bill pending in the state legislature. The measure, HB 1902, would allow juries to consider the relative blame of any party "who could have been sued by the plaintiff."

It's sponsored by state Rep. Dwight Kay, R-Glen Carbon, who says it would improve the business climate in Illinois. Its opponents include the Illinois Trial Lawyers Association, which says it would hamper plaintiffs seeking justice.

"Joint liability is a job-killer in Illinois," Kay said. "When a company is assessed 1 percent of the liability in a lawsuit -- 1 percent -- and they have to pay 100 percent of the judgment, that's simply wrong. That's what we're doing to businesses large and small in Illinois."

Joint liability is when two or more parties are each liable up the full amount of an obligation. An example would be a husband and wife getting a loan. Typically, if one of them dies, the other is still fully liable for the loan.

With joint and several liability, a plaintiff can recover the total verdict from any single defendant, regardless of the defendant's share of liability. That single party is responsible for paying the entire judgment, or it can pursue other parties that share the blame.

An often-cited example of joint and several liability is a case in which a woman was injured on the bumper-car ride at Disney World when her fiance rammed his car into the rear of hers. The jury found the woman 14 percent at fault, the fiance 85 percent at fault and Disney 1 percent at fault, but Disney had to pay its percentage plus the fiance's because he was unable to pay.

Todd A. Smith, president of the Illinois Trial Lawyers Association, said the proposal will encourage plaintiffs to name more defendants in lawsuits.

"It would require a plaintiff to name parties that they might not have named, out of fear that other defendants in the case will point a finger at parties that are not there," he said.

Smith also said informing jurors about settlements reached with other parties will discourage settlements.

"The plaintiff's lawyer is going to say, 'If I settle with you, Defendant No. 3, there's going to be an empty chair in the courtroom. The remaining defendants are going to point at the empty chair and say that is the party that is responsible,'" Smith said.

Opponents of joint and several liability say it encourages plaintiff attorneys to go after parties with "deep pockets," even if those parties are only remotely to blame.

"Defendants should only have to pay for the portion of the damages they actually caused," Kay said. "The current law of the land allows personal injury lawyers to target the deep pockets in cases involving multiple defendants."

Proponents of joint and several liability argue that it protects plaintiffs in cases where one defendant is incapable of paying his share. They argue that even if a defendant is only 1 percent at fault, it's better for that defendant to pick up the tab if a more culpable defendant is unable to fully compensate a victim.

The measure also would allow juries to consider how much fault the plaintiff's employer has, even though an employee typically is required to seek a judgment from an employer through workers' compensation, rather than a civil lawsuit.

Smith said if the employer cannot be a defendant in the civil lawsuit, the employer's culpability shouldn't be an issue for the jury.

"If the employer's conduct is not at issue in the case, then that shouldn't be something the plaintiff is harmed by," he said.

KAY sponsors other bills to curb lawsuits

State Rep. Dwight Kay, R-Glen Carbon, is sponsoring two other bills aimed at curb lawsuits: HB 17, which would restrict where a lawsuit can be filed, and HB 1899, which involves trespassers who try to sue a property owner. It would not require property owners to do anything beyond making sure they refrain from willful and wanton conduct that would endanger the safety of a trespasser.

Al Adomite, vice president of the Illinois Civil Justice League, and Travis Akin, director of Illinois Lawsuit Abuse Watch, support the three measures.

Adomite said, "Enticing more out-of-state cases to the local court jurisdictions in Madison and St. Clair Counties is not exactly the formula to improve the region's legal climate. What Madison and St. Clair counties need are more jobs -- not more lawsuits."

Akin said: "Enacting legal reforms would send a message to job creators that we are serious about job growth in Illinois and unlike the recent income tax hike, legal reforms won't cost taxpayers one penny."

Contact reporter Brian Brueggemann at or 239-2511.

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