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Profiles in Mediocrity

Pennsylvania Governor Ed Rendell (D.) vetoed a tort reform bill that would have reformed that state's law of joint and several liability.

The measure, Senate Bill 435, was intended to repair defects found in a 2002 reform that was struck down by the Pennsylvania Supreme Court before it was ever enforced.

What is especially galling, however, is the mealy-mouthed criticism the Governor leveled at both the bill and the common law rule in the context of the Governor's refusal to accept any improvement over the status quo. He was quoted to say:

It has become apparent in our industrialized society that this doctrine [the common law doctrine of joint and several liability] has produced inequitable and unfair results that have had a detrimental impact on businesses.

For these reasons, I said in my campaign for Governor that I believed Pennsylvania must enact some limits on the doctrine of joint and several liability to protect Pennsylvania businesses from such unfair and inequitable results.

[But, he continued] Just as our businesses have given me telling examples of the unfairness and harm that is caused to them by the current law, consumer organizations have given me just as telling examples of how victims � many times the children of parents killed by negligent actions � would be left without adequate compensation for their loss.

I believe we must find a better way � a law that will balance the equities between our businesses and the victims of negligence.

So the Governor believes that joint and several liability is unfair and harmful to business but he also opposes a reform like S.B. 435 that would provide for proportionate liability among joint tortfeasors, except that a tortfeasor with more than 60% culpability could be liable for 100% of a plaintiff's damages?

Are we to believe that the common law rule -- in which a defendant with 1% culpability may bear 100% of the plaintiff's damages -- is preferable to the rule of S.B. 435, even if that reform is less than perfect?

It is difficult to take the Governor's endorsement of reform seriously in the face of this veto. If the Governor truly believed that S.B. 435 was less-than-perfect, the better outcome would have been to accept piecemeal reform and plan to for further improvement, rather than allow the common law rule to stand.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.