Courting Justice: Child Sex Abuse and Joint and Several Liability

March 14, 2013

By Robert N. Hunn

Penn State officials were enablers when it came to the horrific crimes of Jerry Sandusky. By looking the other way, these officials facilitated Sandusky’s ability to attract and sexually abuse young boys. I believe Penn State officials acted tortiously and should compensate the victims.

There are numerous civil causes of actions that can be brought against Penn State. But, did you know that if the Sandusky scandal happened today and the only civil action that could be brought was a negligence claim, Penn State would likely only compensate the victims for a fraction of their damages or not at all. It’s all because of the abolishment in 2011 of Pennsylvania’s joint and several liability.

Tort reformers like to reduce everything to a sound bite. They told you that joint and several liability meant that if a negligent person is only responsible for 10% of a victim’s injury, they still had to pay 100% of the victim’s damages. They lied to you.

Unfortunately, complex legal principles like joint and several liability cannot be reduced to a sound bite, or even a few sentences. Nonetheless, I am going to try to explain it. The term joint tortfeasor means that the separate actions (or inactions) of two or more people caused indivisible harm to a person. The key word here is indivisible. If only one person acted negligently, the victim would still have suffered the same injuries.

When there is a trial where there are two joint tortfeasors as defendants, the jury first determines the liability of each defendant separately. For each defendant, the jury determines if (a) the person was negligent and (b) whether the negligence caused the harm. Thereafter, the jury determines the total amount of compensation for the harm suffered. Even before the issue of joint and several liability is reached, the jury has to determine that each individual defendant is responsible for all of the damages.

Next the jury addresses the issue of joint and several liability. The jury apportions a percentage of the liability for the harm to each defendant. The apportionment has nothing to do with the question of responsibility; it has to do with culpability. Two defendants can each be responsible for all of the injuries but one defendant may be more culpable than the other. That’s why even if a defendant was considered only 20% liable; he was still responsible to pay the entire verdict because he was responsible for 100% of the harm.

If it turns out that the 20% defendant paid more than 20% of the verdict, he, in turn, has a claim against the 80% defendant for the difference (I told you this was complicated). That’s what joint and several liability was all about. It was a concept that made sure the victim was fully compensated and the negligent defendants had to litigate further to decide who ultimately paid what amount.

That’s where the tort reformers tricked you. They led you to believe that joint and several liability was unfair because it made defendants pay more than they were responsible for. Not true. If it could be determined that a defendant was only responsible for 20% of a victim’s injury, then that person wouldn’t be a joint tortfeasor because the injury is divisible. They would not be responsible for 100% of the harm. That’s the part the tort reformers didn’t tell you.

Let’s go back to Penn State. And, again, let’s just assume that the only civil action that could be brought against the University was negligence. Sandusky is clearly liable to the children. Penn State, as the enabler, is also liable to the children. But Sandusky is clearly more culpable than Penn State. Do to the fact that joint and several liability has been abolished, if Sandusky was found 90% liable and Penn State was found 10% liable, the abused child would only receive 10% of the verdict award. If a child was awarded damages of a million dollars, Penn State would only have to pay $100,000. Since Sandusky doesn’t have any money, that’s the total amount the child would receive. Does that seem fair?

Say a woman was raped (God forbid) in an apartment complex because of negligent security. Had the security system worked, the woman would not have been raped. Had the criminal not acted, the woman would not have been raped. Each one is 100% responsible for the rape and they would be considered joint tortfeasors.

But who is more culpable? Clearly, the rapist. Sadly, this woman could never be fully compensated for the harm as the rapist could be held 99% liable and the apartment complex 1% liable. The rapist doesn’t have any money so the woman only receives 1% of a jury award.

This was an actual case I was involved in as a young attorney, although the percentages I cite above were different. The woman was raped by three men and savagely beaten. She was traumatized for the rest of her life. The jury awarded $6 million. The rapists had no money but because of joint and several liability, the client was able to be compensated by the apartment complex. If that case happened today, my client would only receive a fraction of the verdict.

These are the types of cases where victims will not be fully compensated because of the abolishment of joint and several liability. Unfortunately, abuse victims need a civil justice system that works properly.