At common law, liability against joint tortfeasors was originally joint and several in all jurisdictions. See Keeton et al., Prosser and Keeton on the Law of Torts 47 (5th ed 1984); Henry Woods, Comparative Fault 13:4 (2d ed. 1987). Joint and several liability was designed to obviate a plaintiff's burden of proving for which share of an injury each of several defendants was responsible. Lee & Lindahl, 1 Modern Tort Law 19.02, at 652 (rev.ed. 1994); J. H. Wigmore, Joint-Tortfeasors and Severance of Damages, 17 Ill.L.Rev. 458 (1923). This alleviated the "unfairness of putting on the injured party the impossible burden of proving the specific shares of harm done by each, and the ingenuity of letting all [of the defendants] go scot free because the respective shares cannot be ascertained." Wigmore, at 458.

    Nonetheless, a purely joint and several liability system had its disadvantages including the perceived inequity of requiring one tortfeasor to bear full responsibility for other insolvent or immune defendants in order to make the injured plaintiff whole. See Carol A. Mutter, Moving to Comparative Negligence in an Era of Tort Reform, 57 Tenn. L. Rev. 199 (1989). Many states, including Indiana, adopted comparative fault in an effort to eliminate this problem inherent in this common law rule. In other words, the legislatures declared that it was a better public policy to permit the injured to go uncompensated and become social service wards than to have a wrongdoer pay more than its share of fault. According to former Ind.Code 34-4-33-5, it was the intent of the Indiana legislature in promulgating the Indiana Comparative Fault Act that a defendant should only be required to pay its proportionate share of the total fault in any given case. Of course, this necessarily implies that there be some rational basis for apportioning such fault.

    Needless to say, the advent of comparative fault prompted reconsideration of numerous tort principles including joint and several liability. Yet rather than attempt to reconcile the theories, some courts and commentators seized upon comparative fault as a blanket invalidation of joint and several liability for all claims based upon fault. See, e.g., Soo Line R. R. Co. v. Overton, 992 F.2d 640 (7th Cir. 1993); 3 Comparative Negligence Handbook 13.30 (1998). The rationale for this premature reaction, as one commentator explains it, is that "since a defendant can only be responsible for its proportionate share of the total fault, there is no basis for joint and several liability under the Comparative Fault Act." W. F. Conour, 1 Indiana Practitioner Series: Personal Injury and Torts 4.15, at 128 (1996). See also Damon Ball, A Reexamination of Joint and Several Liability Under a Comparative Negligence System, 18 St. Mary L. J. 891, 898 (1986).

    Nonetheless, complete abrogation of joint and several liability is an over inclusive and unnecessary interpretation of the impact of the Indiana Comparative Fault Act. There are recognized situations in tort law where a basis for joint and several liability must remain consistent with the legislative intent that a defendant only be held responsible for its proportionate share of the total fault. Sometimes, each of multiple tortfeasors is responsible for the entire fault. This article explores two of these types of situations.

    In one of the leading articles on the subject, Professor Prosser lists nine separate situations in which two or more defendants might be jointly liable for the same injuries:

1. where there is concerted action by the defendants resulting in the same injury;

2. where there is vicarious liability;

3. where there are successive injuries;

4. where there is damage of the same kind which is difficult to apportion;

5. where there are acts innocent in themselves which together cause damage;

6. where there is alternative liability;

7. where there is concurrent causation of a single, indivisible result which neither defendant would have caused alone;

8. where there is concurrent causation of a single indivisible injury which either defendant would have caused alone; and

9. where there is a common duty owed by the defendants to the plaintiff.

Prosser, Joint Torts and Several Liability, 25 Calif. L. Rev. 413 (1937); Lee & Lindahl, supra at 651. Without comment on the remainder of Professor Prosser's list, situations (8) and (9) require application of joint and several liability to multiple defendants wholly consistent with comparative fault.

(A) Single Indivisibly Injury Either Defendant Could Cause Alone

First, consider the situation where there is concurrent causation of a single indivisible injury which either of two defendants would have caused alone. Take as an example two separate industrial complexes resting on the banks of the same river. Both of the complexes have been dumping chemical waste into the river for years, and the water pollution has gradually contaminated the drinking water in several downstream communities. Either one of the complexes acting alone would have produced sufficient pollutants to contaminate the river. Both complexes had a duty to refrain from damaging the environment, both complexes breached their respective duties, and in fact both complexes polluted the river. Does the Comparative Fault Act require us to arbitrarily assign various percentages of fault to one complex or the other? Certainly not! See Farley v. Crystal Coal & Coke Co., 85 W.Va. 595, 102 S.E. 265 (1920).

Similarly, imagine a horse-drawn carriage touring the downtown streets of a large Indiana city. Two separate youths throw firecrackers at the horse. Startled, the horse bolts, eventually injuring the carriage driver or the carriage passengers. Had only one youth been involved, no one would question the negligent "cause" which precipitated the horse's actions. In reality, it is no more difficult to apportion fault when two youths are involved. Either of the two youths individually and independently would have caused that horse to bolt, and the coincidence of two tortfeasors rather than one absolves neither. Each youth is 100% at fault, and any lesser allocation could be nothing short of arbitrary.

The pollution and the firecracker illustrations represent examples of multiple tortfeasors each of whom, by its actions, caused 100% of a single, indivisible harm. It is not that the tortfeasors' conduct combined to collectively cause an injury; nor is the argument that one tortfeasor should be held responsible for the act of the other. Rather, joint and several liability must apply in these situations because the conduct of each tortfeasor, alone, caused the entire injury. One tortfeasor acting all alone would have polluted that river or caused that horse to bolt; the coincidence of a second tortfeasor doing exactly the same thing has nothing at all to do with what the first tortfeasor would have accomplished alone. The harm is indivisible not because it is too difficult to separate out the varying causes, but rather because each tortfeasor acting independently would have caused the entire harm.

The Restatement (2d) of Torts reflects this view. Restatement (2d), Torts, 875 provides that: "Each of two or more persons whose tortious conduct is a legal cause of a single and indivisible harm to the injured party is subject to liability to the injured party for the entire harm." Indivisibility, in turn, is determined by reference to Restatement (2d), Torts 433A which states:

(1) Damages for harm are to be apportioned among two or more causes where;

(a) there are distinct harms, or

(b) there is a reasonable basis for determining the contribution of each cause to a single harm.

(2) Damages for any other harm cannot be apportioned among two or more causes.

(Emphasis added)

Comment I to 433A goes on to explain that in the absence of a reasonable basis for dividing a single injury, "the courts have refused to make an arbitrary apportionment for its own sake, and each of the causes is charged with responsibility for the entire harm." Restatement (2d), Torts 433A, Comment I, at 439-40 (1965). The possibility of arbitrarily or irrationally apportioning negligence on a comparative fault basis does not render an indivisible injury "divisible." American Motorcycle Ass'n v. Superior Court, 578 P.2d 899, 905 (Cal. 1978). Thus, for example, the Illinois Supreme Court held that where a quadriplegic plaintiff sued two defendants and "Either injury ... could have caused plaintiff's lasting condition, [the plaintiff's] quadriplegia was an indivisible harm" thus requiring the imposition of joint and several liability. Burke v. 12 Rothschild's Liquor Mart, Inc., 593 N.E.2d 522, 526 (Ill. 1992). See also Ravo v. Rogatnick, 514 N.E.2d 1104 (N.Y. 1987) (where evidence established that plaintiff's brain injury was a single indivisible injury, and where defendant failed to submit any evidence upon which jury could reasonably base an apportionment of damage, multiple defendants were held jointly and severally liable).

The notion of indivisible harm post-comparative-fault is not entirely foreign to Indiana case law. For example, in Dunn v. Cadiente, 516 N.E.2d 52, (Ind. 1987), the issue arose whether a medical malpractice plaintiff's injuries were causally related to a congenital anomaly or a physician's conduct. Writing for a unanimous Supreme Court, Justice Dickson cited Professor Prosser for the following proposition:

Where a logical basis can be found for some rough practical apportionment, which limits a defendant's liability to that part of the harm which he has in fact caused, it may be expected that the division will be made. Where no such basis can be found and any division must be purely arbitrary, there is no practical course except to hold the defendant for the entire loss, notwithstanding the fact that other causes have contributed to it.

Id. at 56 (citing Prosser, Law of Torts 314 (4th ed.1971)). The Court went on to hold that a plaintiff may benefit from this rule if he or she can demonstrate the absence of any such basis for apportionment. Id. Thus, the Supreme Court explicitly recognized the necessity of a rational, logical basis for apportionment of damages before any apportionment can occur.

The foregoing explains why joint and several liability continues to be viable when multiple defendants concurrently cause a single indivisible injury which either defendant would have caused alone. The discussion of concurrent causes relates to another basis for joint liability cited by Prosser; i.e., concurrent breach of a common duty. Where multiple defendants owe a common duty to a plaintiff, and where the defendants all breach that duty, then each of the defendants must be held liable for the entire resulting harm. In short, the multiple defendants must be considered a single entity for purposes of fault allocation.

(B) Common Duty by Multiple Defendants:

At common law, liability attached to "two or more persons [who] owe to another the same duty, and [who] by their common neglect of that duty . . . injure [the plaintiff]." Cooley on Torts 223 (3d ed. 1930) (quoting Matthews v. Delaware R.R. Co., 56 N.J.L. 34, 27 A. 919, 920 (Sup. 1893)). In other words, situations can arise where multiple parties, either through common law, contractual agreement or some other set of circumstances, each has a duty or responsibility for a particular occurrence. In these situations, according to Prosser and Keeton, when "both defendants fail to perform their obligation, and harm results, each will be liable for the entire event." Prosser, supra at 315.

Prosser uses an example of two adjoining landowners, each with a common law duty for maintaining a wall which separates their respective properties. When that wall falls and harm results, "each will be liable for the event; and . . . there is no reasonable basis for any division of damages." Id. (citing Johnson v. Chapman, 43 W.Va. 639, 28 S.E. 744 (1897)). If a duty arises out of contract rather than common law, the same rule applies.

The Restatement (2d), Torts 878 echoes Prosser's sentiment. According to 878, if two or more persons are subject to a common duty and fail to perform it, thereby causing harm, "each is subject to liability for the entire harm resulting from failure to perform the duty." See also Haser v. Paper, 50 N.W.2d 240 (N.D. 1951) (joint liability applies for injuries arising from common breach of duty); Lee & Lindahl, supra at 656.

The typical commercial construction site provides another good illustration. In a typical construction project, the landowner will hire a general contractor to build or renovate a structure on the land. Through various contract provisions and agreed-upon supervisory responsibilities, the general contractor will accept certain nondelegable safety responsibilities for all persons on the job site. The general contractor will then hire one or more subcontractors to perform various aspects of the project at the site. The subcontract between the general contractor and the subcontractor will invariably contain provisions placing similar or identical safety duties on the subcontractor for the subcontractor's employees. This subsequent contract does not and cannot vitiate the general contractor's own safety duties because safety responsibilities at a construction site are nondelegable. Bagley v. Insight Communications Co., L.P., 658 N.E.2d 584, 588 (Ind. 1995). See also 29 CFR 1926.16. Consequently, both the general contractor and the subcontractor have overlapping and concurrent safety responsibilities toward the workers on the jobsite. Safety redundancy is a key factor in jobsite safety under basic safety emergency principles.

Now consider what happens when one of the subcontractor's employees is injured at the site. For example, assume that despite their concurrent safety duties, neither the general contractor nor the subcontractor provide any of the required fall protection for the safety of those working at height. When a worker falls to his death, how is fault apportioned among the general contractor and subcontractor who have each totally breached their overlapping but independent safety duty to the injured worker? Had either party complied with its obligations the worker would not have fallen and, since neither did, the worker died. Thus, the general contractor and subcontractor are each totally responsible for the indivisible harm.

Regrettably, in these situations the general contractor will invariably attempt to take advantage of the persistent misabrogation of joint and several liability, joining the subcontractor-employer as a non-party or third-party defendant and hoping to thereby shield itself from the full consequences of its own negligence. The general contractor will hide behind the Comparative Fault Act, insisting that the jury apportion damages between it and the subcontractor regardless of how arbitrary, illogical, or absurd any such division would necessarily be. This result cannot be allowed as it is inconsistent with basic tort law. If each of two people slip a lethal dose of poison into a victim's drink and the victim dies, does anyone believe that one poisoner should be allowed to shirk or diminish responsibility or apportion fault for the wrongful death by pointing the finger at the other tortfeasor, joining the other as third-party or a non-party, and saying "It was his fault, too!" Both must be liable for the full damages, jointly and severally. A concurrently-liable party cannot pass fault to another concurrently-liable party when they both had and breached the same duty.

With regard to construction cases, the general contractor is not 10%, 50%, or even 99% at fault for the worker's fall, nor is the subcontractor 10%, 50%, or 99% at fault. The general contractor is 100% at fault and the subcontractor is 100% at fault because they each shirked their independent duties to the worker. Had either of them performed as required, the injury would not have happened. The general contractor and the subcontractor are concurrently negligent not because of vicarious liability or concerted action, but because the general contractor breached its duty to the worker, and the subcontractor breached its duty to the same worker. Simply because the subcontractor also breached a duty should in no way ameliorate the liability of the general contractor. A second simultaneous wrong by the subcontractor cannot be a defense to the general contractor's own wrong. Whether or not the general contractor could be entitled to indemnity from the subcontractor under the construction contracts is not addressed in this article.

Recently, the Indiana Court of Appeals impliedly approved this analysis of overlapping safety duties for concurrent breach of a common duty in construction uses in Hagerman Const., Inc. v. Copeland, 697 N.E.2d 948 (Ind.Ct.App. 1998). In Hagerman, the employee of a subcontractor fell to his death at the general contractor's (Hagerman's) work site. The estate of the deceased ironworker brought suit against the general contractor and others. At trial, the court read the following jury instruction based on its prior ruling on summary judgment that the general contractor owed the ironworker a nondelegable duty of safety under the construction contracts:

You are instructed that in a negligence case, a duty of care may arise by contract. The two (2) prime contracts state certain duties assumed by Hagerman and non-party, Sater Electric, Inc. regarding safety. Hagerman and non-party Sater owed these safety duties to each of their employees and to each employee of every one of their subcontractors. In this case, you are instructed that, as a matter of law, Hagerman owed all its contractually-assumed duties to Mr. Copeland on the date of the accident. You are further instructed that Hagerman was not relieved of any of these contractually-assumed safety duties by entering into a subcontract with Mr. Copeland's employer . . .

In addition to their employees and the employees of their subcontractors, Hagerman and Sater owed their contractually-assumed safety duties to anyone else who may be affected by their work. On the day of the accident, the hole through which Mr. Copeland fell was either solely the responsibility of Hagerman or also the responsibility of non-party Sater.

Id. at 960. Thus, the trial court instructed the jury that the general contractor and the non-party contractor had simultaneous overlapping safety duties. In other words, any breach of duty by the non-party contractor could not relieve the general contractor of its breach of duty. Since both had the legal obligation to provide proper safety duties, the fact the non-party failed to do so should be of no benefit to the general contractor for its same failure.

If two contractors each have a duty to cover a hole to prevent persons from falling through it and neither one does it, they must each be 100% at fault for the resulting injury. The general contractor cannot reduce its comparative fault allocation by blaming the non-party contractor because "each is subject to liability for the entire harm resulting from failure to perform the duty." Restatement (2d), Torts 878. Thus, the non-party defense in such cases should be stricken, thereby, precluding the jury from arbitrarily allocating fault separately between the joint tortfeasors, the general contractor and the non-party contractor. The general contractor may be left with a remedy of indemnity against concurrent tortfeasors, if the contracts so provide.

The most common objection to the continued application of joint and several liability is that it reflects a policy consideration inconsistent with the premises underlying comparative fault. As one Florida Supreme Court Justice explained, "Comparative negligence recognized the ability of a court to determine and apportion damages in relation to the harm caused. Joint and several, in contrast, presumes the inability of the judiciary to divide fault among parties." Walt Disney World v. Wood, 515 So.2d 198, 202 (Fla. 1987)(McDonald, C.J., dissenting). Thus, the argument goes, if there is a statutory recognition of a court's ability to divide fault among parties, then joint and several liability cannot survive. See also Ball, supra at 898. This rationale ignores the presumed premise of all fault allocation, i.e., that there is a rational basis for such allocation and not an arbitrary one.

The argument for joint and several liability in the limited instances delineated by Professor Prosser is not that the judiciary is per se incapable of apportioning negligence; but that there must exist a logical basis for doing so. It is one thing to allow juries to apportion negligence when causation can likewise be logically apportioned. It is something quite different to force causative delineations where there are none and when no logical basis for doing so exists.

The vast majority of jurisdictions agree that comparative fault and joint and several liability are not mutually exclusive doctrines in all instances. In those jurisdictions which have judicially adopted comparative fault, the courts have virtually unanimously held that joint and several liability should be retained. Lee & Lindahl, supra at 657 & n.1. Similarly, the Uniform Comparative Fault Act '4, Comments, explicitly reaffirms joint and several liability, declaring that joint and several liability "is not changed by the Act." See also Resolution Trust Corp. v. Block, 924 S.W.2d 354, 355 (Tenn. 1996) (holding that joint and several liability continues to be an integral part of Tennessee law and is not affected by comparative fault principles). In fact, fifteen years ago commentators noted that without language in Indiana's Comparative Fault Act which explicitly eliminated joint and several liability, conceding the abolition of the doctrine may be erroneous and premature. See Lee Eilbacher, Comparative Fault and the Non-party Tortfeasor, 17 Ind.L.Rev. 903, 905, n. 4 (1984) (citing Address by Donald W. Vasos, Esq., of Kansas City, Kansas, to the Indiana Trial Lawyers Association, September 16, 1983, Indianapolis, Indiana).

While comparative fault allocation may be possible in the majority of negligence torts, there are circumstances when no rational basis exists for fault allocation and any such decision would be speculative and arbitrary. Certainly, comparative fault allocation presumes a rational, reasonable basis for any such determination and if that cannot be done, then joint and several liability among multiple tortfeasors must remain the law in these situations. See Dunn v. Cadiente, 516 N.E.2d 52, (Ind. 1987)

In the specific arena of construction site litigation, where by contract or common law concurrent and redundant safety obligations exist on the general contractor and subcontractors, the general contractor cannot plead in defense to an injured workman's complaint the concurrent negligence of a non-party subcontractor but must accept full blame for the injured workman under joint and several liability. These situations expressly fall within examples (8) and (9) of Professor Prosser's delineation. Whether or not the general contractor would be entitled to indemnity from a negligent subcontractor who breached its contractual safety provisions is another matter.