Jury Duty Offered a Lesson in Joint & Several Liability

About 20 years ago, I got a lesson about "joint & several liability." It’s a legal concept that was in effect in Wisconsin then, but has since been dropped. Now, it’s in the news because there’s a movement to bring it back.

After lots of business opposition, and a full page ad from Wisconsin Dells water park entrepreneur Jack Waterman, it was dropped from the most recent budget bill in June, but that doesn’t necessarily mean it’s dead.

Joint & several allows a judgment in a lawsuit to be levied in full against any losing defendant, even if that defendant is only slightly at fault.

My initiation came when I was picked as a juror in a lawsuit involving Millfab, a Stoughton lumber processor. The suit was brought by a young Millfab employee who had been injured when his hand got caught in a big wood planing machine. The suit, for a reason we jurors were not told, was not against Millfab, but rather against the company that manufactured the machine.

Testimony revealed that the machine’s safety shield, which would have prevented the operator from inserting his hand too far, had been removed by a Millfab supervisor, allegedly to speed up production.

After a two-day trial, which included a wooden mock-up of the machine, we jurors retired to our room to deliberate. We had not previously been allowed to discuss the case, but now we had to come to some conclusions. After determining the damages, which we all agreed were substantial, the question was, "Who was at fault, the employer, Millfab, or the manufacturer?"

Someone suggested, "Maybe we should start with 90 percent against Millfab and 10 percent against the machine’s maker?" That suggestion was met with silence because common sense told us that the manufacturer couldn’t be blamed for an accident that occurred after its safety shield had been removed. We determined Millfab was 100 percent at fault. The "fortunate" defendant, the manufacturer, had only its attorney bill to pay.
Only later did I discover by talking with attorney friends that, due to the joint & several concept, if we had found the manufacturer even one percent negligent, it could have been liable for the entire $1-million-plus judgment! Millfab was exempt from the suit because the company had already settled with the employee through a workers compensation process, I later discovered.

I don’t know about the other jurors, but I felt deceived because those facts were specifically withheld from us. In fact, as is common in jury selection, we were asked if we had a spouse who was an attorney. They didn’t want us to understand too much.

I was left feeling that the plaintiff’s attorneys were taking a long shot against the deep-pocket manufacturer in the hopes that we jurors could be tricked into "compromising" and assessing some small blame to the manufacturer.

I suppose the argument for joint & several liability is that it allows more options for compensating people who have been harmed by others. True, but it also allows more opportunity for a business to get stuck with a judgment for things beyond its control. Unless you’re a defendant or a defendant’s attorney, the whole concept seems inherently unfair.

I’m glad they did away with joint & several liability in Wisconsin sometime after my jury experience, and I hope it stays away.