Joint & Several Liability

February 09, 2010

NSPE Issue Briefs

Joint & Several Liability

NSPE Position

Engineers are responsible for the professional services that they provide either through their employer or directly to a client. The engineers' services should meet a professional standard of care.
When a negligent error or omission is made, the engineer should be held responsible. However, all possible and reasonable steps should be taken to reduce the unnecessary and unwarranted liability exposure of engineers.
NSPE supports legislative action to repeal joint and several liability, place caps on contingency fees, impose tighter standards on punitive damage awards, and promote the use of alternative dispute resolution methods.

Background
Joint and several liability makes every defendant in a lawsuit liable for the entire amount of the plaintiffs damages regardless of the defendant's degree of fault or responsibility. This poses particularly serious problems for engineers and other professionals. Proportionate liability holds defendants responsible only for the damages caused by their own negligence.

Product liability laws are intended to protect consumers from injury because of manufacturing and sale of unsafe products. Absolute liability encourages accident prevention by holding manufacturers liable for injuries caused by their products. However, the standard unfairly holds them liable for any injury regardless of their ability to foresee an imminent injury or the consumer's ability to prevent it.

In recent years, the Supreme Court has expressed serious concern about punitive damages awards, which are frequently out of proportion to the damage done. Punitive damages are awarded in addition to civil damages that might be imposed. In 1996, the court ruled in BMW of North America v. Gore (517 US 559, 5/20/96) that the "punitive damages award is grossly excessive and therefore exceeds the constitutional limit." However, the court did not establish a limit and the problem of excessive damages persists.

Alternative dispute resolution (ADR) is a relatively new mechanism for resolving lawsuits. It often includes arbitration and mediation–the two most common forms–early neutral evaluation and conciliation. As litigation balloons, the costs of litigation rise and time delays continue to frustrate litigants, more states are experimenting with ADR programs. Some are voluntary, while others are mandatory.

NSPE References
Professional Policy No. 75 - Professional Liability Insurance
Professional Policy No. 82 - "Hold Harmless"Contract Provisions
Professional Policy No. 96 - Liability of Employed Engineers
Professional Policy No. 148 - Model Engineers Good Samaritan Act
A State-by-State Summary of Liability Laws Affecting the Practice of Engineering - Professional Liability Committee of the Professional Engineers in Private Practice, a division of NSPE, in cooperation with Victor O. Schinnerer & Co., Inc. – 2007