Lamson, Dugan and Murray, LLP, Attorneys at Law

Economic Damages and Joint and Several Liability – Part I

Posted in In-House Counsel, Legislation

Over the next few Tuesday posts, we will be addressing the interplay between economic damages and joint and several liability.  It is often complicated, and can lead to some potentially inequitable results in large economic damage cases. 

In handling cases with mutiple defendants and substantial economic damages, joint and several liability is a primary consideration in determining exposure.  As with some states, joint and several liability in Nebraska is covered by the Nebraska Comparative Fault Act, Neb.Rev.Stat. § 25-21,185 et seq.  The pertinent section, Neb.Rev.Stat. § 25-21,185.10, proivdes:

In an action involving more than one defendant when two or more defendants as part of a common enterprise or plan act in concert and cause harm, the liability of each such defendant for economic and noneconomic damages shall be joint and several.

In any other action involving more than one defendant, the liability of each defendant for economic damages shall be joint and several and the liability of each defendant for noneconomic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of noneconomic damages allocated to that defendant in direct proportion to that defendant’s percentage of negligence, and a separate judgment shall be rendered against that defendant for that amount.

In other words, a single co-defendant is liable for all economic damages when the co-defendant is found to have some liability to the plaintiff, even one percent, and the comparative fault of the plaintiff is not equal to or greater than the combined fault of all defendants.  (For the sake of good order, this assumes no defendant or person liable has settled with the plaintiff.  See Tadros v. City of Omaha, 273 Neb. 935, 735 N.W.2d 377 (2007).)

Next Tuesday, we will examine the effect a partial settlement has on joint and several liability.

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