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A Primer on Joint & Several Liability

Common Law Joint and Several Liability:

Under the common law, joint and several liability allows a personal injury plaintiff to pursue multiple defendants as if they were jointly liable and it becomes the responsibility of the defendants to sort out their respective proportions of culpability and payment. In other words, a plaintiff may recover all of the damages from any single defendant, regardless of his individual share of culpability, and that defendant has to pursue other defendants for contribution to their respective share of liability.

Joint and Several Liability under Article 16:

Article 16 of CPLR now restricts the common law’s application of joint and several liability. Under this article, if a defendant’s equitable share of liability is determined to be 50% or less of the total liability for all the defendants, regardless of whether they are named in the action or not, then that defendant will be liable only to the extent of his degree of culpability. Hence, the party secures the “several only” status. Please note that this rule only applies to liability for non-economic losses, such as pain and suffering, loss of consortium, and mental anguish. If a tort-feasor is found 51% or more at fault, his liability remains “joint”.

Common law joint and several liability still applies for the economic losses, such as medical expenses, lost income, and wrongful death damages. In addition, if a particular defendant is found to be liable more than 50%, he may be liable for the full damages, regardless of his share of culpability, and it will become his responsibility to pursue remaining defendants for contribution.

Application of Article 16:

Under CPLR § 1601, the respective percentage of culpability of unnamed defendants can be apportioned along with the other named defendants. Yet, if a plaintiff can prove that with due diligence he was unable to obtain jurisdiction over that unnamed party, then that party’s respective share of liability will not be considered.

Limitations on Article 16:

CPLR § 1602 imposes limitations on application of apportionment. Specifically, the Article 16 does not apply to a defendant’s claim for common law indemnification. It also does not apply to a claim for vicarious liability where an employer cannot seek apportionment between itself and its employee. Further, this article denies apportionment as to liability under Article 10 of NY Labor Law, which sets forth nondelegable duty of owners and contractors to provide their employees with safe working condition.

In addition, NY Workers’ Compensation Law prevents a third-party action against an employer for a job related injuries unless the employee plaintiff has sustained a grave injury. Thus, the employer’s share of culpability will not be considered under the Article 16, and defendants cannot seek the employer’s contribution.

Burden of Proof:

CPLR § 1603 requires defendants asserting limited liability to prove by a preponderance of the evidence their equitable share of the total liability. Thus, defendants should plead limited liability as an affirmative defense if a claim is to be made for the liability of unnamed defendants or if the defendants wish to minimize his culpability on a theory of liability different from that of plaintiff.


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