At common law, co-defendants found to be joint tortfeasors in a personal injury action were subject to joint and several liability, such that the plaintiff could recover the entire verdict from any one tortfeasor—even if that particular defendant was found to be only 1% liable. On June 28, 2011, Pennsylvania passed the Fair Share Act which limits joint tortfeasors’ liability in negligence actions to only their share of negligence, unless a defendant’s fault was determined to be greater than or equal to 60%.  In such a case, the plaintiff could recover the entire verdict from that defendant. The Fair Share Act only applies to cases commenced on or after June 28, 2013.

Prior to full implementation of this Act, defense strategy has to distinguish liability as involving separate torts.  Where co-defendants are successful in this strategy, damages are apportioned to reflect percentages of individual liability.  However, this strategy is sometimes difficult to achieve.

In Hennessey v. Caruso, the Pennsylvania Superior Court upheld a $19.1 million verdict awarded to the plaintiff whose right leg was amputated following two car accidents that occurred within a five minute time span. Caruso was driving a car with Hennessy as a passenger when he rear-ended another vehicle. Hennessy was pushing Caruso’s car off to the side of the road when a car being driven by Robertson Jr. collided with Caruso’s car and severely injured Hennessy. The jury found co-defendant Ryan Caruso to be 45% negligent and co-defendant Shawn Robertson Jr. to be 55% negligent. Caruso argued on appeal that he should not be solely liable for the entire verdict under joint and several liability because he and Robertson Jr. were separate tortfeasors.

The Pennsylvania Superior Court found that the negligent acts of the co-defendants occurred “in close temporal proximity and in the same precise location.” Even though there was a gap of five minutes between the two accidents, the second accident involved the same vehicles that were disabled on the roadway due to the first accident. The “but for” test of negligence was satisfied because but for Caruso’s negligence, Hennessy would not have been put in a vulnerable position in the center of the roadway where he could potentially be injured by an oncoming motorist.

Even though Caruso was found to be 45% negligent, the case commenced in July of 2009—two years before the passage of the Pennsylvania Fair Share Act. As a result, Hennessy is entitled to recover the entirety of the verdict from Caruso. If the case were docketed today, Hennessy would only be able to recover 45% of the $19.1 million verdict from Caruso.

Thanks to Eric Clendening for his contribution.

For more information, please contact Denise Fontana Ricci at .