Ohio’s Joint and Several Liability Laws

Ohio’s joint and several liability laws have undergone some recent changes. Effective April 9, 2003, Am. Sub. S.B. 120 renumbered, repealed, and revised the existing Revised Code sections dealing with contributory fault, rights of contribution and related Code provisions.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. 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.

Determine percentages of tortious conduct 

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 judgment has been recovered against all, or any one of the tortfeasors.

Affirmative defense

Further, 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 plaintiff by an amount proportionately equal to the percentage of 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.

It should be noted that “new” 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.