The so-called deep pockets of business should be more fairly accessed under a tort reform proposal in Ohio's Legislature.
Already successful on his own side of the Statehouse, Sen. Bruce Johnson, R-Westerville, now must convince the House that Ohio's joint and several liability concept is an injustice.
Johnson wants to change civil case procedure that under current law permits defendants to be held liable for the entire judgment in a tort action even though they may hold only a small share of the fault for someone's injury, death or loss of property.
The system, he says, results in businesses being unfairly brought into lawsuits simply because they're assumed to have the money to pay when other defendants don't.
"The deep pockets are always brought in," says Johnson, an attorney. "They're always categorized as doing something wrong no matter how ridiculous it might be."
Johnson's proposal, S.B. 120, addresses two types of damages: economic, which would include measurable losses such as medical care or loss of wages, and noneconomic, such as pain and suffering.
Juries would be required to determine a percentage of fault for all damages for each responsible party -- even those not named in the lawsuit or those who settled before trial.
"From my perspective, business owners want to be treated fairly, and the vast majority of them are willing to be held responsible for their own actions," Johnson says. "This bill will improve the justice system by holding defendants responsible for their own actions but not necessarily responsible for everybody else's actions."
For noneconomic damages, joint and several liability would be abolished; defendants would only have to pay their responsible share. To illustrate, Johnson imagines a lawsuit in which a drunk driver crossed the center line and struck a van head-on. Because the latch on the van doors was defective, passengers fell out and were injured.
The drunk driver and the van manufacturers, then, would share the blame for the injured parties and, thus, share responsibility for paying the damages. In contrast, under current law, both the drunk driver and the manufacturer could each be held liable for the total damages.
In the case of economic damages, joint and several liability would be maintained, but only for defendants found more than 50 percent responsible. A lower percent liability would be assigned a proportionate share of the damages.
"It's a compromise, really," says Johnson, who has the support of organizations such as the Ohio Chamber of Commerce and the Ohio State Medical Association.
"The benefit we see is that basically defendants who are pulled into these lawsuits are going to only have to pay their fair share of what they're liable for," says Tony Fiore, the Ohio Chamber's director of labor and human resources policy. "Basically, when any defendant is pulled into a lawsuit, the way the current law operates now, you could be 5, 10, 15 percent liable and have to pay the full amount. That could wipe out a small business, is the bottom line."
Still, the bill has drawn opposition from Ohio Citizen Action and the Ohio Academy of Trial Lawyers.
"First, in many cases it will mean that some Ohioans will not be compensated for their out-of-pocket expenses for medical bills and lost wages even when they are completely innocent," says Richard Mason, executive director of the Ohio Academy of Trial Lawyers.
This is because some defendants will not be able to pay for their share of the liability.
"Second, there's absolutely no reason for the state of Ohio to make this change," Mason adds. "This bill does not solve a crisis. It simply takes money out of the pockets of needy victims and gives it primarily to greedy corporations."
He says the purpose of the justice system is twofold: to discourage negligent behavior and to make the victim whole.
"This bill definitely does not make the victim whole," he says.
S.B. 120 must go through approval in a House committee before it receives a vote on the House floor. To follow the bill's status, visit the 124th General Assembly's Web site at www.legislature.state.oh.us and enter the bill number in the space provided. How to reach: Sen. Bruce Johnson, (614) 466-8064; Tony Fiore, Ohio Chamber of Commerce, (614) 228-4201 or firstname.lastname@example.org; Richard Mason, Ohio Academy of Trial Lawyers, (614) 341-6800
Joan Slattery Wall (email@example.com) is an associate editor and statehouse correspondent for SBN Magazine.