Each state's approach to joint and several liability,
contribution and comparative negligence can lead to dramatically
different results for your client. Although the New England states
are geographically close, they are worlds apart in how they
apportion damages among joint tortfeasors. Knowing these
differences can dramatically affect the outcome in a case. The
following summarizes the approaches used by the courts in the
various New England states:
Connecticut has adopted a modified comparative negligence
statute, C.G.S. § 52-572h(b) (2009). If the jury finds that the
plaintiff's fault exceeds the combined fault of all the defendants,
recovery is barred. Connecticut holds joint tortfeasors severally
liable under C.G.S. § 52-572h(g)(1) (2009). Defendants are only
liable for their proportionate share of damages unless the
plaintiff fails to collect from one defendant despite good faith
efforts to do so.
The courts reallocate uncollectible shares among the remaining
defendants in accordance with their relative degree of fault,
C.G.S. § 52-572h(g)(2) (2009). Juries apportion damages between
named defendants and settling tortfeasors, but not the entire
universe of negligent tortfeasors, Donner v. Kearse, 234
Conn. 660, 668-69 (1995). Connecticut applies traditional joint and
several liability principles to intentional and strict liability
torts, C.G.S. § 52-572h(o) (2009).
Like Connecticut, Maine has a modified comparative negligence
statute, but neither state holds defendants joint and severally
liable nor permits juries to reduce damages by a plaintiff's
proportionate share of fault, 14 M.R.S.A. § 156 (1999);
Pelletier v. Fort Kent Golf Club, 662 A.2d 220, 223 (Me.
1995). Instead, juries reduce "total damages by dollars and cents,
and not by percentage, to the extent considered just and
equitable," Pelletier, 662 A.2d at 223.
For the purposes of contribution, however, tortfeasors do
contribute in proportion to their causal fault, Dongo v.
Banks, 448 A. 2d 885, 894 (Me. 1982). The amount that a
plaintiff has already recovered from settling tortfeasors will
offset the damage award. A non-settling defendant may seek
contribution from a settling tortfeasor to the extent the settling
tortfeasor's share exceeds the amount paid under the
Massachusetts recognizes joint and several liability,
Shantigar Found. v. Bear Mountain Builders, 441 Mass. 131,
141 (2004). Each defendant is liable in full regardless of the
defendants' relative degrees of fault. Massachusetts defendants may
offset their damages somewhat by seeking contribution from other
tortfeasors "against whom recovery is sought," but not from
settling tortfeasors, M.G.L. c. 231B, § 1 (2009); M.G.L. c. 85, §
4(b) (2009). If a plaintiff holds a tortfeasor liable for
more than their pro-rata share of damages, then that tortfeasor may
seek partial reimbursement from other tortfeasors, Shantigar
Found., 441 Mass. at 141. Each tortfeasor's proportional fault
is irrelevant because tortfeasors contribute equal pro-rata
Although juries do apportion fault between the named defendants
and the plaintiff under Massachusetts' modified comparative
negligence statute, trial judges only reduce damages by the
percentage of fault assigned to the plaintiff and the amount
received under settlements, M.G.L. c. 85, § 1 (2009). Each
defendant remains fully liable for the rest of the damages,
Shantigar Found., 441 Mass. at 141. Massachusetts juries
cannot apportion damages to absent tortfeasors, including ones that
have settled previously.
New Hampshire follows joint and several liability to an extent.
If the jury apportions 50 percent or more of the fault to one
defendant, then that defendant is joint and severally liable for
all of the damages, R.S.A. § 507:7-e(b) (2009). A defendant less
than 50 percent at fault is only liable severally. Juries may
apportion damages among the entire universe of tortfeasors (even
including non-parties) and the defendant. DeBenedetto v. CLD
Consulting Engineers, Inc., 153 N.H. 793, 804 (2006).
New Hampshire's comparative negligence statute provides that the
relative fault of the plaintiff will not bar recovery unless it
exceeds the fault of the defendants in the aggregate, R.S.A. §
507:7-d (2009). The plaintiff's relative degree of fault will
offset damages. A settlement will likewise offset the total
recoverable damages and discharge a tortfeasor from any
contribution obligations, R.S.A. § 507:7-h (2009). Joint
tortfeasors owe contribution in the amount of their proportionate
fault, R.S.A. § 507:7-f (2009).
Rhode Island adopted pure comparative negligence in 1971, G.L. §
9-20-4 (2009). A plaintiff's negligence will never bar recovery, no
matter how great, but it will reduce recovery proportionally. This
approach abandons "the all-or-nothing effect of the traditional
contributory negligence rule," instead providing for some recovery
if the jury finds the defendants even marginally negligent,
Raymond v. Jenard, 390 A. 2d 358, 361 (R.I. 1978).
As a threshold issue, then, a jury must find both the plaintiff
and defendant negligent before apportioning negligence between
them, Calise v. Hidden Valley Condo. Ass'n, 773 A. 2d 834,
837 (R.I. 2001). Defendants become joint and severally liable for
whatever amount the jury apportions to them collectively, G.L. §
10-6-2 (2009). They may seek contribution from other tortfeasors
based on their relative degrees of fault, but not from settling
tortfeasors, G.L. § 10-6-3, 8 (2009).
Vermont's comparative negligence statute divides damage awards
severally among named defendants in proportion to their causal
fault, 12 V.S.A. § 1036 (2009). Plaintiffs cannot recover if their
negligence exceeds the negligence of all the defendants. If a
plaintiff's negligence is less than 50 percent, the courts will
diminish the total damages by his or her proportional fault.
Vermont only permits juries to apportion damages between named
defendants, Levine v. Wyeth, 944 A. 2d 179, 196 (Vt.
Joint and several liability principles apply to all other
tortfeasors. The courts do reduce damage awards by the amount paid
to the plaintiff pursuant to settlement agreements, but defendants
cannot seek contribution from joint tortfeasors.
How the New England states apportion damages varies widely. An
awareness of these differences can impact a case at all its stages,
and accordingly, counsel should keep the differences in mind in
selecting a jurisdiction for suit, and for evaluating the value of
Whether in settlement negotiations or trial strategy, what state
law applies may matter a great deal.
Kenneth E. Rubinstein and Tobias W. Crawford practice in
the commercial litigation practice group at Nelson, Kinder, Mosseau
& Saturley PC in Boston, and Manchester, N.H.