§663-10.9 Abolition of joint and several liability; exceptions. Joint and several liability for joint tortfeasors as defined in section 663-11 is abolished except in the following circumstances:

(1) For the recovery of economic damages against joint tortfeasors in actions involving injury or death to persons;

(2) For the recovery of economic and noneconomic damages against joint tortfeasors in actions involving:

(A) Intentional torts;

(B) Torts relating to environmental pollution;

(C) Toxic and asbestos-related torts;

(D) Torts relating to aircraft accidents;

(E) Strict and products liability torts; or

(F) Torts relating to motor vehicle accidents except as provided in paragraph (4);

(3) For the recovery of noneconomic damages in actions, other than those enumerated in paragraph (2), involving injury or death to persons against those tortfeasors whose individual degree of negligence is found to be twenty-five per cent or more under section 663-31. Where a tortfeasor's degree of negligence is less than twenty-five per cent, then the amount recoverable against that tortfeasor for noneconomic damages shall be in direct proportion to the degree of negligence assigned; and

(4) For recovery of noneconomic damages in motor vehicle accidents involving tort actions relating to the maintenance and design of highways including actions involving guardrails, utility poles, street and directional signs, and any other highway-related device upon a showing that the affected joint tortfeasor was given reasonable prior notice of a prior occurrence under similar circumstances to the occurrence upon which the tort claim is based. In actions in which the affected joint tortfeasor has not been shown to have had such reasonable prior notice, the recovery of noneconomic damages shall be as provided in paragraph (3).

(5) Provided, however, that joint and several liability for economic and noneconomic damages for claims against design professionals, as defined in chapter 672, and certified public accountants, as defined in chapter 466, is abolished in actions not involving physical injury or death to persons. [L Sp 1986, c 2, §17; am L 1989, c 300, §2; am L 1991, c 62, §1; am L 1993, c 238, §1; am L 1995, c 130, §1; am L 1999, c 237, §4]

Note

Chapter 672 referred to in text is repealed.

Cross References

Contractor repair act, see chapter 672E.

Law Journals and Reviews

Ozaki and Comparative Negligence: Imposing Joint Liability Where a Duty to Protect or Prevent Harm from Third Party Intentional Tortfeasors Exits Is Fairer to Plaintiffs and Defendants. 26 UH L. Rev. 575 (2004).

Case Notes

Where third party defendant analogized this section's limit on joint and several liability to comparative negligence, discussed in Amboy, the court was unpersuaded by the argument that defendants' rights to contribution would be prejudiced if defendant, a nondiverse dispensable party, was dismissed. 892 F. Supp. 2d 1234 (2012).

State properly held jointly and severally liable under paragraph (4) as a "prior occurrence" need not be identical or exactly similar to put State on "reasonable prior notice"; it was enough that the State knew of the particular defective guardrail, had an opportunity to correct it, and failed to do so. 91 H. 60, 979 P.2d 1086 (1999).

Section 663-10.5, which abolishes joint and several liability for government entities, did not supersede or impliedly repeal (1) paragraph (4), which expressly allows for recovery of non-economic damages in motor vehicle accidents involving the maintenance and design of highways, or (2) paragraph (1), that provides for the recovery of economic damages against joint tortfeasors in actions involving injury or death to persons. 110 H. 97, 129 P.3d 1125 (2006).

Plaintiffs' negligence claim included the right to recover under an unmodified doctrine of joint and several liability, as at the time their claim accrued, §663-10.5 (2005) imposed joint and several liability for economic and noneconomic damages upon any jointly liable person; thus, because the legislature did not intend for Act 112, L 2006 to apply retroactively to divest the plaintiffs’ accrued or substantive rights, the trial court correctly concluded that Act 112 did not apply to the case. 117 H. 262, 178 P.3d 538 (2008).

In a class action against two hotel operators for the unlawful withholding of wages, circuit court erred in failing to apportion damages when it held the operators of one hotel jointly and severally liable for injuries to employees at another hotel that they did not operate. 133 H. 1, 323 P.3d 792 (2014).

Section does not abolish joint and several liability for actions involving intentional torts; condominium association and murderer were thus jointly and severally liable to plaintiffs for noneconomic as well as economic damages, subject to reduction proportional to victim's assigned negligence. 87 H. 273 (App.), 954 P.2d 652 (1998).

Construing the language of §§431:10C-301 and 431:10C-103 governing uninsured motorist (UM) and underinsured motorist (UIM) insurance according to their plain and commonly understood meaning and in pari materia with §663-11 and this section, UM and UIM policies must provide coverage for all damages which an insured is legally entitled to recover from the owner or operator of an uninsured or underinsured motor vehicle, which necessarily encompasses damages for which the owner or operator of an uninsured or underinsured motor vehicle is jointly and severally liable pursuant to §663-11 and this section. 120 H. 329 (App.), 205 P.3d 594 (2009).

Because this section does not limit "injury" to those of a physical nature, it extends to negligent infliction of emotional distress claims; thus, circuit court erred in failing to hold state hospital jointly and severally liable for damages attributable to patient's sister's negligent infliction of emotional distress claim. 127 H. 325 (App.), 278 P.3d 382 (2012).

Read together with §662-5, paragraph (3) requires the imposition of joint and several liability only as adjudicated by the court, not the jury; having determined that the state hospital's individual degree of negligence was more than twenty-five per cent, the circuit court properly awarded joint and several damages against the hospital to the full extent that the court determined patient's injuries to arise out of the subject incident, and therefore complied with paragraph (3). 127 H. 325 (App.), 278 P.3d 382 (2012).