Joint and Several Liability: A Theoretical Perspective


Joint liability, several liability and joint & several liability are the concepts which are used by the court in the cases where there are more than two parties to a contract. It can be defined as when two or more entities or persons are alleged to be liable to another person. Either due to breach of contract or due to a tortious wrong such as assault or negligence, then there the doctrine of joint and several liability can come into play. According to joint and several liability, it means that each defendant is liable to the plaintiff for the entire claim.

What is a Joint liability?

Joint liability means that there is more than one defendant liable for the injury of the plaintiff’s. In joint liability, each defendant is fully liable for the total amount of damages.

For example, suppose in a case where two cars collapse and a pedestrian is hurt, both the drivers are jointly liable to pay for their negligence. If one of the defendants is unable to pay or passes away, the other party is liable to pay the full amount.

In the case where one party pays for the full amount, the plaintiff ’t can’t sue the other party for the amount.

What is Several liability?

Several liability is when multiple defendants are each held liable individually for the damages caused by them.

For example, in a case where there is a fault of three doctor’s severally for the damages to the patient, in that case, each doctor would be liable for a certain percentage of the damages. The concept of several liability sometimes becomes very difficult to calculate, and it requires expert testimony to determine the rate of liability of each defendant.

The relation between joint and several liability

Joint & several liability” arises when the defendant is sued by the plaintiff as a whole for the damages.

The difference here is that in such cases the defendants themselves are left to determine how much each individual is responsible for the damages.

For example, where two doctors are held liable for the damages to the plaintiff. If the patient believes that one of the doctors is completely responsible for his damages, then that doctor will be held liable for all the damages. In cases where the doctor disagrees with the allegation, there he can file a separate lawsuit against the other doctor to get half of the damages.

How is the liability determined?

Liability can be determined using various approaches. Liability is dependent on the type of injury.

  • In the case of automobile accidents, the physical evidence of the cars is a prime factor to determine the liability.
  • In cases of medical malpractices, the testimony of the doctors and the medical records are considered to be a significant point of review.

In the case of personal injury, proving fault is also complicated by various matters such as previous injuries, insurance options or contributory negligence.

Joint & Several Liability in Tort cases

In Tort cases, defendants are held jointly and severally liable if the concurrent acts of the defendants cause damage to the plaintiff. For the imposition of such type of liability, each wrongful act must contribute to the damage.

For example, in a case where a person drives his car negligently and hits a pedestrian. The brakes in the car didn’t work due to the negligence of the mechanics as he was negligent in the installation of a break. Both the driver and mechanic were negligent in their respective performance. Hence both of them can be sued, and liability can be imposed on both of them.

In those states in which comparative negligence is the doctrine, and tort liability for negligence are divided by the percentage of responsibility of the defendant in such cases joint & several liability does not apply.

Whereas in cases of torts which are not based on negligence, the doctrine of joint and several liabilities can be applied.

In Contract and Leases

Joint & Several liabilities can also arise in the cases of contract or lease when liability is imposed upon more than one party. For example, in a certain case A, B & C executed a lease which states that they are jointly and severally liable under the lease. In that case, A, B & C  each face the same liability as if they are joint tortfeasors. The other party can sue all of them or any one of them and can collect the full amount either from one or from all of them.

It can also be applied to joint guarantors, partners in a general partnership and husband and wives.

Limitations of liability by various states

Certain states have imposed limits on the joint and several liabilities without completely abolishing the doctrine.

  • States like California limited it to apply only on economic damages and not to punitive damages.[1]
  • Louisiana & Mississippi had limited joint liability to fifty per cent of the total damages to the plaintiff.[2]
  • In states like Ohio, the defendants who are responsible for damage of more than fifty per cent of the tortious conduct can be held liable jointly & severally for economic losses. In the cases where the responsibility of the injury by the defendants is less than fifty per cent, he is responsible only for his share of the plaintiff’s economic loss. Non-economic losses such as loss of companionship or pain & sufferings can be assigned proportionately.[3]
  • Hawaii allows joint & several liabilities for all economic damages. Still, in cases of non-economic damages, the defendants are only liable when the damage is intentional, or it is related to environmental pollution or the damages is for some other selected classes.[4]
  • States like New York[5] and Lowa[6] have abolished joint & several liability in cases of torts where the action of parties negligence is less than fifty per cent at fault.

Most states in the United States have developed a hybrid approach and have limited the use of joint and several liability. Such as the liability in these cases are applied only to parties who are found responsible for more than fifty percent of the damage. The approach was adopted by various states as a means to reform the system which encourages some of the plaintiffs to file suit against a single party with more money, to get an outsized award.

Advantages of Joint and Several liabilities

Joint and several liability are commenced on the hypothesis that the defendants are in the best situation to allot damages among themselves. When damages are paid according to the liability to the defendants, the defendants are free to litigate among themselves and divide liability in a better way among themselves. The plaintiff doesn’t need to be a part of the litigation anymore, and he can avoid the cost of continuing litigation.

As every defendant contributes to a single result, although there are differences in the character or extent of duties of every defendant. It might be contended that their joint contribution to the single result prevents any reasonable division of the damages.

Joint and several liability benefit the plaintiff as this increases the chances of the plaintiff to get all the damages.

In joint and several liability the defendant might end up paying more than his share of damages. But it is considered to be better than getting paid less for his injury to the plaintiff.

Criticism of Joint and Several liability

The doctrine of joint & several liability can result in severe inequalities. For example, in cases where a defendant has only ten per cent responsibility for an accident, and he is jointly and severally liable with another defendant who is at ninety per cent fault for the accident. The person with ten per cent fault may have to bear the full amount of financial damages, even though his/her mistake was quite minor.


Tortious liability is still an evolving branch in India, though of paramount importance. With the ever-increasing cases of medical negligence and motor vehicle accidents, imparting legal literacy amongst the masses is of utmost importance to create educated citizenry. The nuances of joint liability and joint and several liability can often be eluding, henceforth coming up with dedicated and comprehensive literature on this topic is the need of the hour.


Frequently Asked Questions

  1. How do we define joint and several liability?
  2. How are they determined?
  3. How are they applied in tort cases, contracts and leases?
  4. What are its limitations?
  5. What advantages are obtained from this?







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