Research And Enlightenment On Joint And Several Liability In American Tort Law

Joint and several liability in American tort law has four important features, (1)A plaintiff may collect all of his damages from any one of several tortfeasors who are found to be a proximate cause of his injuries. (2)Once the judgment was satisfied, by settlement or otherwise, the plaintiff was barred from pursuing a claim against any other joint tortfeasor. (3)Jointly liable defendants can seek contribution from their fellow tortfeasors. (4)The risk that one or more co-defendants will be insolvent, immune or otherwise unavailable falls completely on solvent defendants.From the historical point of view, modern tort law sense of joint and several liability can be traced back as early as 1613 in England, Sir John Heydon case.1691 Smithson v. Gates is the first and the most typical case which clearly stated the joint and several liability rules in common law. Under this original English rule, the plaintiff could join multiple tort-feasors together only when they acted in concert and followed the English "no-contribution" rule.In the late 1940s, Joint and several liability was introduced to the United States and applied. Wisconsin was one of the first batch of states which followed the Federal to accept joint and several liability, the Wisconsin Supreme Court first addressed joint and several liability in 1854, in Richardson v. Emerson.From the 1860s, the states of America start to expand the appliance of joint and several liability to the concurrent torts, and then allowed jointly liable defendants to seek contribution from their fellow tortfeasors. After 200 years of development, joint and several liability became a system which played the leading role of tort law in the United States in 1970s. But the modern tort law reform movement which started from the 1980s led to a great debate about abolition of joint and several liability system, scholars have joined in the discussion,and gradually form two aspects of view. One is "repeal faction",the other one is "reservations faction". The "repeal faction" believes that joint and several liability request some joint tortfeasors paying damages which were also caused by other defendants is unfair, It will result in an imbalance between the interests of the defendants, an imbalance between the interests of the plaintiff and the defendant, a high incidence of abuse of legal action and dramatic increase in social costs, furthermore it is is inconsistent with the principles of tort law. The "reservations faction" believes joint and several liability should be preserved to ensure full damage recovery for tort victims and prevent tort victims from having to bear the burden of damages done to them. They believe the risk transfer method of joint and several liability systemis reasonable, and the understanding of joint and several liability system of the "repeal faction" is inaccurate, the"deep pocket defendanf"is not a common phenomenon in United States, and it also have shortcomongs to replace joint and several liability system with several Liability. By the impact of the modern tort law reform movement, forty-three states of the United States have adopted some sort of joint and several liability reform Until early 2007. Joint and several liability in the United States has experienced the history of tort law to expand from the bud and then to a series of restrictions on the development process, this process was originally from the joint and several liability for complicity in violations, followed by a widely applicable in tort to reach its peak, and finally in modern tort law reform movement continued to narrow its scope of application of an end, which not only reflects the changes in American social policy, but also reflect the social development of tort law conform to the adjustments made.At present, China's mainly provides for joint and several liability is in General Principles of the Civil Law of he People's Republic of China and Interpretation of the Supreme People's Court of Some Issues concerning the Application of Law for the Trial of Cases on Compensation for Personal Injury. The former one only made some principle provisions of joint and several liability, the later one extended the scope of joint and several liability applies to quasi joint act of tort,joint dangerous act, employer's liability, the responsibility for injured workers, helper virulence responsibility and artificial structures set up defects liability. Such a large scale extended rationality is open to question.In the field of China's law study, Scholars for the common-law tort theories rarely involved, with joint and several liability-related research is even more rare. While there are many differences between China's Tort Law and American tort law, but the development process of joint and several liability in American tort law has an important significance as reference for us to re-examine our joint and several liability.By employing a comparative study, this paper is divided into four parts to research joint and several liability in American tort law. The first part analyzed some concepts which related to joint and several liability in American tort law,highlighting the concept of indivisible injury, satisfaction, settlement and contribution, as a basis of the below-depth research on joint and several liability in American tort law. The second part begins by describing the traditional joint and several liability under the common law rules of establishment and early development, followed by the analysis of the real foundation and theoretical basis of joint and several liability under the Anglo-American common law. The third part start with the introduction of the background start of the modern tort reform movement, in-depth study on the new development of joint and several liability in American tort law, more comprehensively summed up the different viewpoints of the "repeal faction" and the "reservations faction" about abolition of joint and several liability system, and introduced the effect of the modern tort reform movement on the American states' legislative practice of joint and several liability. The fourth part presents the enlightenment of joint and several liability in American tort law, with a view to provide a reference to the legislation of China's Tort Liability Act.