On June 28, 2011, Governor Corbett signed SB113, the Fair Share Act (Act 17-2011) into law in Pennsylvania. The Fair Share Act significantly changes Pennsylvania law regarding joint and several liability in most tort actions, such as actions involving negligence.

Under prior law, two or more persons who committed a wrong to cause an injury were “jointly and severally liable” to the injured party. That meant that each wrongdoer was liable for the full amount of the judgment, regardless of his degree of fault. For example, if there were two defendants and one was found to be 1% liable and the other 99% liable, both defendants were liable to pay the full (100%) amount of the judgment, even the one defendant who was found to be only 1% liable. However, any defendant who paid more than his proportionate share of liability would have a claim against the other defendant for failing to pay his proportionate share.

The prior scheme of “joint and several liability” was more of an assurance for plaintiffs by helping guarantee payment of the judgment. However, it was viewed as unfair to the wrongdoer who had only a small portion of responsibility for the injury but could be held responsible to pay 100% of the damages owed to the injured party.

When Pennsylvania enacted the Fair Share Act it joined about 40 other states that have passed various types of reform so that wrongdoers are only liable in proportion to their degree of fault. Now under the Fair Share Act, defendants found to be less than 60% liable only have to pay their “fair share” of the damages. In other words, if 10% of an injury or loss is found to be the responsibility of a single defendant, that defendant pays 10% of the judgment.

The Fair Share Act contains the following exceptions to this amendment. Therefore, defendants in the following types of suits continue to be jointly and severally liable:

  1. A suit including an intentional misrepresentation
  2. A case of intentional tort
  3. A suit concerning the release or threatened release of a hazardous substance under the Hazardous Sites Cleanup Act or
  4. A civil action in which a defendant has violated section 497 of the Liquor Code

The enactment of the Fair Share Act is a significant change in Pennsylvania tort law. Governor Corbett called it just a first step in comprehensive legal reform for Pennsylvania.