The Florida legislature has been unusually busy this year, and by and large the results are pretty ugly.
The legislature passed, and Jeb Bush signed, a bill repealing the doctrine of joint and several liability in Florida. Henceforth, joint tortfeasors will no longer be required to contribute more than their percentage of the judge or jury’s assessment of their share of the total fault. Deep pockets can rest easier. The value of patsies just increased. And victims (and taxpayers) will have to pay more when some members of a group of joint tortfeasors are judgment-proof.
Florida is infested with billboards. And south Florida is full of billboards blatantly erected in violation of local law…which for years wasn’t enforced in exchange for bribes and/or campaign contributions. Eventually, the laws here got changed to ‘grandfather’ them in so that some streets I drive on, like Bird Road, are overrun with the things. The Florida legislature’s reaction to this will, however, boggle your mind. It has just passed a bill that…protects billboards from the threat of being obstructed by trees.
Ladybird Johnson must be spinning in her grave. [UPDATE: As noted by an astute commentator, Ladybird Johnson is in fact living; according to the wikipedia “She has been protected by the Secret Service longer than anyone else in history.”] This isn’t just a failure to ‘beautify’ roads — it’s a public commitment to permanent uglification. If Jeb Bush signs this one, local governments will be forbidden from planting any trees where they might obstruct the public’s view of those glorious billboards.
The bill requires that billboards be given a clear sight line of 500 feet on roads with speed limits above 35 mph and 350 feet where the speed limit is under 35 mph. If counties or cities plant trees within that zone, they have 90 days to remove them or face a court fight and fines.
And if existing trees near a billboard are knocked down in a hurricane or if they die, they cannot be replaced except by low-growing shrubs or flowers that do not block the sign.
Still on the legislative agenda: proposals to gut the class-size amendment, the voter-approved mandate to have small classes in schools. That amendment has been a perennial bone in the Republican throat since at some point you might actually have to appropriate money to build those classrooms and pay those teachers.
There has been a ray of good news: spurred by the public scandal of an on-camera murder of a child by guards at a Florida “boot camp” (and the furor over the ensuing attempt at a coverup, then a whitewash), the legislature has voted to “demilitarize” the boot camps to which youthful offenders can be sent. Instead of a regime where guards, who were essentially unregulated and unsupervised, could and did use as much violence as they wanted for minor infractions such as ‘not looking respectful’, the new statute “bans the use of stun guns, pepper spray, pressure points, mechanical restraints and psychological intimidation unless a child is a threat to himself or others.” Yes, in Florida this really is enormous progress, so let’s be grateful for it.
Amazing that the legislature would protect billboards but no one pays any attention when stop sign, traffic lights or directional signs are obscured by trees.
Rumors of Ladybird Johnson’s grave spinning are greatly exaggerated.
http://en.wikipedia.org/wiki/%22Ladybird%22_Johnson
Joint and several liability was always an outrage against justice, victimizing people whose responsiblity for a tort might be infintesimal, solely because in Dillinger’s words, “that’s where the money is”.
It might be hard on a plaintif if the person who’s actually guilty is broke, but that’s no reason to attack people who aren’t guilty.
Good for Florida! I hope this spreads.
Sue Ann, obscured billboards don’t generate ticket revenue. Obscured traffic lights and signs do.
I think that I shall never see
a billboard lovely as a tree
indeed unless the billboards fall
I’ll never see a tree at all.
–Ogden Nash
Here, here Brett. Why should someone with $$$ be made to pay beyond their fair share? And, Professor, prices will go down for all of us who use the products of Florida companies who will no longer be left holding someone else’s bag. These companies now control their own fate and can make optimal choices without having to worry about externalities beyond their control. Your post implies you’d impose a tax/fine on the tortfeasor with more money simply because she has more money. And, yes, victims are taxpayers, but so are these wealthy tortfeasors. What is the point of the “(and taxpayers)” part? The point of any negligence laws should be to force actors to internalize costs, joint & several doesn’t do that, and it is rightfully now dead in Florida.
Why on earth would anyone believe that the tort system currently provides optimal deterrence? If it did, then the arguments above work; but if we think that the tort system more often than not under-deters, then it may make some sense to have parties who commit tort act like insurers towards their joint venturers in wrong. There is a loss: someone has to bear it. Why is making a bad guy bear it so morally suspect?
My point is that joint and several means that Actor X has to contend with an externality it cannot control (namely Actor Y). If you remove that externality, then Actor X can control its behavior at an economic optimal sense.
How would you do it? You say have the bad guy pay, and I say “yes,” but only for his portion. What is deterred by having someone pay for actions beyond their control? That makes no sense. How can you deter Peter by having him pay for Paul’s torts? And why does ability to pay move the deterrence? It, of course, doesn’t. If Peter is the bad actor, he is so only to the % that the jury finds.
I’d like an answer to the above, but I take it then, that you’d be fine with the “victim” paying should she be determined to be at some fault as well?
Er, if the “victim” is as much at fault as the “bad guy” then in what sense is he a “victim”? And why should he be compensated? If he’s more victim than villain, some payment may be in order, but it may turn on the facts and the nature of the fault of the ‘victim’.
As for deterrence, take the case of product liability. Hypothesize that in a perfect world (PW), tort liability would be swift and certain, and fully compensate victims but create no windfalls. Now hypothesize that rather than live in this world, we in fact live in an imperfect world (IW) in which liability is not all that likely due to problems with evidence, the cost and risk of litigation, and so on. Even though there are some windfalls, the expected value of tort damages in this world, IW, is less than in the perfect world.
In IW, if one makes joint tortfeasors jointly and severally liable, it is true that in any particular case a tort feasor may pay more than would be required for optimal deterrence. But over the long term we might reach a second-best kind of state in which the level of tort damages paid out more closely approximates the optimal level found in PW than in IW without joint and several liability. It is also possible that we will over-deter, but I don’t see much evidence for that in the real world, although I would be shocked if there were no cases ever where this appeared to have happened.
Er, the case of a victim being at least somewhat at fault and still getting money happens all the time. We call it comparative negligence.
Under your second-best **cough** world, where we have joint and several liability, but no contributory negligence (or do we bring that back too? Hey, victim, you were 2% at fault, no recovery!) victim = 10% fault, bad and rich guy = 10%, bad and poor guy = 80% — you have bad and rich paying the full 90%. This is a penalty for having money (which doesnt always come from nefarious means). Even if it is 50/50 fault, making someone pay simply because they can afford to is perverse and certainly unjust.
And, negligent doesnt always mean bad. It means negligent. I could see a different rule, maybe, for intentional torts maybe. But why for negligence? We already make defendants bear the cost for new rules (see TJ Hooper), I see no benefit to making them pay for a loss they did not cause. It is simply dollar shifting, and makes no sense from an efficiency standpoint. Again, making others pay for externalities they cannot control leads to inefficiencies. Immer, immer, immer. It does nothing to correct the real problem, which is the other bad actor not controlling his activity level related to the ability to pay for the risk. Poor bad actor gets away, and is allowed to continue his activity level at a grossly inefficient manner.
All J&S liability does is deter actors who can afford the internalized worth of the risk they impose on society from doing that activity, because they may bear an added, external cost that adds uncertainty as to the true cost/value of their activity level.
If the victim is only slightly at fault, then as I understand joint and several liability, no tort-feasor is liable for that share of the harm.
I was assuming contributory negligence along with joint and several. I do think that’s fair.
I take it the case you are imagining is something like this:
I take it that the case you are thinking about is something like this: Sam slips, falls, and crushes his eggshell skull at the entrance to Tom’s store. The jury finds that the fault is 10% Sam for not looking down, 40% Tom for negligently leaving a hazardous condition in place, and 40% AN Other’s negligence (the guy who dropped stuff, the city contractor that didn’t fix the sidewalk like it said it had because he work orders got mixed up, the fellow who blew into his trumpet just than and scared everyone, whatever). AN Other is judgment proof. How much of Sam’s huge medical bill should Tom pay? In a joint and several world, it could be up to 90%; in Florida, now, it will 40%.
My intuition is that given the world we find ourselves in, overall we’ll be better off if we stick Tom (and his insurer) with the bill. That said, I think there’s a lot to be said for the Canadian answer, where this whole question isn’t nearly so much of an issue because there’s decent cheap and reliable national health care. Traditionally we have socialized our risks via the tort and insurance system; removing joint and several liability undermines that practice and will often place the risk on people who will least be able to afford it.
The problem, Michael, is that the Florida legislature has decided, quite in keeping with public opinion, that the purpose of the tort system is to achieve justice, not “optimal deterence”. And justice is not served by joint and several liability.
I’m not sure that even deterence is, either… But it sure does work out good for lawyers relying on contingency fees, doesn’t it?