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The Fair Share Act Impacts the Strategic Planning of a Jury Trial

Litigation Alert | May 5, 2017
By: Andrew Ralston, Jr.

Complex questions surrounding the application of the Fair Share Act, which modified Pennsylvania’s common law “joint and several” liability law, are being taken up by courts in the Commonwealth with increasing frequency. Given the practical consequences of the differences in application between the Act and “joint and several” liability, additional litigation over the application of the Fair Share Act to real world factual situations will undoubtedly arise.

Recent Caselaw

Currently, in Roverano v. PECO Energy, the Superior Court of Pennsylvania is considering the question of whether, under the Fair Share Act, the jury, or else the trial judge, is responsible for the task of apportioning liability to multiple defendants in a strict liability case. In Roverano – an asbestos case -- a jury awarded the plaintiff $6.3 million. On the verdict sheet were eight joint tortfeasor co-defendants. The judge did not allow the jury to apportion liability to each defendant and, as a result, no guidance was provided by the jury about how much each defendant was to contribute to the award. Instead, the judge merely divided the jury’s award by eight (the number of defendants in the case) and apportioned to each defendant one-eighth of the verdict amount.

On appeal, one of the eight co-defendants is arguing that, under the Fair Share Act, the jury should have apportioned the percentage of liability it found for each of the eight defendants – because the plain meaning of the text of the Fair Share Act requires the jury – not the court -- to apportion liability. Appellee Roverno’s counsel, on the other hand, argued on appeal that the Fair Share Act should not be applied to strict liability cases – which don’t involve a determination of fault – in the same way that it is applied to negligence cases. We await the Superior Court’s ruling.

Last year, in the case of Williams v. Dickinson Fleet Services, the Supreme Court of Pennsylvania, based upon an emergency petition for a stay, ordered that, because of the application of the Fair Share Act, an impending jury trial against joint tortfeasor co-defendants must be stayed when one joint tortfeasor co-defendant has perfected a collateral order appeal.

Conducting Jury Trials of joint Tortfeasor Co-Defendants

The Fair Share Act not only alters the concept of “joint liability,” but also the method by which courts must structure the way in which a jury trial involving joint tortfeasor co-defendants is conducted. Under the old “joint and several” liability regime - where any joint tortfeasor co-defendant found even one iota liable could be held responsible for paying 100% of the verdict amount, regardless of that defendant’s degree of fault - the apportionment of liability amongst and between (a) co-defendants who are on the verdict slip, (b) co-defendants who were named in the lawsuit by the plaintiff but settled prior to trial, and (c) unnamed entities who settled or otherwise resolved claims with a plaintiff prior to commencement of suit, was non-essential.

However, under the Fair Share Act:

(a.1)(1) Where recovery is allowed against more than one person . . . and where liability is attributed to more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of that defendant's liability to the amount of liability attributed to all defendants and other persons to whom liability is apportioned under subsection (a.2).

(a.1)(2) Except as set forth in paragraph (3) [which retains joint liability in cases of  intentional misrepresentation, intentional torts, where a defendant is apportioned 60% or more of the liability, in certain hazardous substances cases, and in certain liquor code cases], a defendant's liability shall be several and not joint, and the court shall enter a separate and several judgment in favor of the plaintiff and against each defendant for the apportioned amount of that defendant's liability

(a.1)(4) Where a defendant has been held jointly and severally liable under this subsection and discharges by payment more than that defendant's proportionate share of the total liability, that defendant is entitled to recover contribution from defendants who have paid less than their proportionate share. Further, in any case, any defendant may recover from any other person all or a portion of the damages assessed that defendant pursuant to the terms of a contractual agreement. 

 (a.2) For purposes of apportioning liability only, the question of liability of any defendant or other person who has entered into a release with the plaintiff with respect to the action and who is not a party shall be transmitted to the trier of fact upon appropriate requests and proofs by any party. . . . 

Note several important things about the Fair Share Act, emphasized above.           

First, under (a.2), the question of apportionment of liability must be “transmitted to the trier of factnot the judgefor determination. Further, (a.2) requires that the jury apportion the liability of (a) “any defendant” i.e. any defendant who is on the verdict slip, or any defendant who was sued by the plaintiff but settled prior to trialand (b) any "other person who has entered into a release with the plaintiff with respect to the action and who is not a party" i.e. any entity or person who, on the same facts at issue in the lawsuit in question, paid the plaintiff money to resolve a claimwhen there has been “appropriate requests and proofs” provided during trial. 

Second, under (a.2)(4), only where a defendant is held “jointly and severally liablei.e. under one of the five exceptions set forth in (a.3) which are, in the real world, unquestionably of limited applicabilityor where a defendant has a “contractual agreement” with another defendant for contribution, is a defendant “entitled to recover contribution from defendants who have paid less than their proportionate share.” 

Therefore, assuming that a joint tortfeasor co-defendant puts on sufficient “proofs” at trial, the jury that tries the liability of any one joint tortfeasor co-defendant must also have before it, for its determination, the questions of: (a) who else could possibly be held responsible for the plaintiff’s injuries, (b) within the category of all persons who could possibly be held responsible for the plaintiff’s injuries, which person(s) it finds were responsible for the plaintiff’s injuries, and (c) what percentage of liability it apportions to each person that it found was responsible for the plaintiff’s injuries. The matter of apportionment and contribution cannot wait for a later contribution suit amongst joint tortfeasor co-defendants and/or other “persons who have entered into a release with the plaintiff” – because that right doesn’t exist under the Fair Share Act.     


In the era of the Fair Share Act, the verdict of a jury not only conclusively establishes the compensatory value of the injuries that the plaintiff suffered, but also the scope of those who are deemed responsible for the plaintiff’s injuries, and the apportionment of liability amongst and between those responsible parties. To a much greater extent than previously, a trial now must resolve all of the questions that relate to determining all of the factual circumstances surrounding a plaintiff’s accident, and resultant injuriesnot merely the questions of whether any particular joint tortfeasor defendant is liable for a plaintiff’s injuries, and the total compensatory value of a plaintiff’s injuries.

Members of the Catastrophic and Excess Liability Group represented defendants in the Williams v. Dickinson Fleet Services matter. If you have questions or would like further information, please contact Andrew Ralston (; 610.782.4908).

This correspondence should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation and legal questions.
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