Causes of action that accrue on or after the effective date
Effective April 9, 2003, Am. Sub. S.B. 120 renumbered, repealed, and revised the existing Ohio Revised Code sections dealing with contributory fault, rights of contribution, and related Code provisions. Any cause of action accruing prior to April 9, 2003, however, is still governed by the pre-existing Code sections, as S.B. (aka Senate Bill) 120 only applies to causes of action that accrue on or after the effective date.
Joint and several liability
In addition to several changes to the “definitions” that accompany these sections of the Ohio Revised Code, these are the most notable revisions to the Code provisions themselves. S.B. 120 states that a defendant is jointly and severally liable in tort for all economic loss if more than 50% of the tortious conduct complained of is attributable to that defendant, but the defendant is only liable for his proportionate share of the damages representing economic or non-economic loss if 50% or less of the conduct is attributed to that defendant. Regarding intentional tort claims, the Act states that a defendant against whom an intentional tort claim is established is jointly and severally liable for all economic loss if 50% or less of the tortious conduct is attributable to that defendant. Each other defendant against whom an intentional tort claim is not alleged and established, and to whom 50% or less of the conduct is attributable, is only liable for each defendant’s own proportional share of the economic loss.
Joint and several liability and economic loss
As a refresher, an economic loss refers to a financial loss and damages suffered by a person or entity, which arise from a defect in the qualitative nature of the product, service, or improvement that was bargained for. Generally, an economic loss is observed on assets rather than physical injury to a person or entity.
Right of contribution among tortfeasors
The new law also explains how to determine each individual party’s percentages of tortious conduct under the joint and several liability, contributory fault, or product liability contributory fault sections. There is still a right of contribution among tortfeasors, but a tortfeasor against whom an intentional tort claim is asserted does not retain a right of contribution. There is a right of contribution in favor of all tortfeasors regardless if a judgment has been recovered against all or any one of the tortfeasors.
Affirmative defense
Further, the plaintiff’s contributory fault is still a valid affirmative defense to most tort claims, including a product liability tort claim, but cannot be asserted as an affirmative defense to an intentional tort claim. If any contributory fault is placed with the plaintiff, the Act requires that the court diminish the total amount of compensatory damages awarded to or potentially recoverable by the plaintiff by an amount proportionately equal to the percentage of the plaintiff’s tortious conduct. Express or implied assumption of the risk is a valid affirmative defense to a product liability claim, but not to an intentional tort claim. This follows, too, where there is product liability contributory fault, or other contributory tortious conduct, attributable to the plaintiff.
Ohio subrogation
It should be noted that the Ohio Revised Code Sections 2307.22-.29 repeal but adopt a large part of the text from “old” Revised Code Sections 2307.31-.33 and 2315.19-.20. The following “old” Revised Code Sections are renumbered and amended by the Act: 1775.14, 2315.08, 4171.10, 4507.07, and 5703.54. Contact one of our subrogation lawyers to discuss the joint and several liability laws.
