Virginia: Joint and Several Liability – a Lawyer’s Argument
Virginia cases of joint and several liability for damages in tort are legion. Virginia’s damages rule of law is hornbook:
In the law of damages the proximate cause of an injury may in general
be stated to be that act or omission which immediately causes or fails to prevent
the injury; an act or omission occurring or concurring with another, where, had it
not happened, the injury would not have been inflicted, notwithstanding the latter.
It is not essential, therefore, for a plaintiff to show that an act, claimed to
have been the proximate cause of a certain result, was the only cause. It is
sufficient if it be established that the defendant’s act produced or set in motion
other agencies, which in turn produced of contributed to the final result.
If two defendants are negligent one of them cannot be exonerated by urging
and showing the negligence of the other. Where the concurring negligence of the
two produces a single injury and each is its proximate cause they are both liable.
Von Roy v. Whitescarver, 197 Va. 384, 352 (1955)(citation and asterisks omitted)(emphasis added). “It is well settled in Virginia that where separate and independent acts of negligence of two parties are the direct cause of a single injury to a third person and it is impossible to determine in what proportion each contributed to the injury, either or both are responsible for the whole injury.” Maroulis v. Elliott, 207 Va. 503, 511 (1966).
The Virginia Supreme Court routinely has reversed and rendered in favor of plaintiffs when the trial court has failed to enter judgment against all defendants as joint tortfeasors for the total amount of the jury verdict where their fault is concurrent. E.g., Murray v. Smithson, 187 Va. 759, 764-765 (1948); Richmond Coca-Cola Bottling Works, Inc. v. Andrews, 173 Va. 240, 250-251 (1939); and Norfolk and Portsmouth Belt Line R.R. Co. v. Parker, 152 Va. 484, 504-507 (1929). In Parker and Andrews, the Virginia Supreme Court reversed trial courts entering judgment on jury verdicts against only one joint tortfeasor for the entire amount. More recently in Murray, the Virginia Supreme Court reversed the trial court’s judgment which set aside the jury’s verdict against joint tortfeasors for all damages.
Murray specifically dictates that the degree of fault shall not be compared between joint tortfeasors, since by their concurrence as proximate causes each is liable for the whole. “And in determining the liability of either or two persons whose concurrent negligence results in an injury, the comparative degrees of negligence are not considered, each being liable for the whole even though the other was equally culpable, or contributed in a greater degree to the injury; or the proportion in which the negligence of each contributed to the injury, or the degrees of care used, is not to be considered.” 187 Va. at 764 (emphasis added).
Hence as a corollary the Virginia Supreme Court has mandated that damages may not be apportioned separately among joint tortfeasors. “If negligence of two persons concur in proximately causing a single indivisible injury, then such persons are jointly and severally liable for the entire damages sustained, although there was no common duty, common design, or concert of action, and the jury in case of such finding may not apportion damages as between such persons.” Dickerson v. Tabb, 208 Va. 184, 193 (1967)(emphasis added).
Although “generally a circuit court should not disturb a jury verdict awarding damages which has been rendered fairly and is based upon complete evidence…, a jury verdict is not beyond the control of the courts, and courts have a duty to correct a verdict that plainly appears to be unfair or would result in a miscarriage of justice.” Norfolk Beverage Co. v. Cho, 259 Va. 348, 353 (2000) (upholding jury awards of $310,000.00 and $160,000.00 for assaults based on respective medicals of only $8,653.81 and $1,336.75). When the record is clear, the court in its judgment may fix damages that have not been assessed properly, and even has a duty to do so if it can. E.g., Apperson-Lee Motor Co. v. Ring, 150 Va. 283, 288-289 (1928).
