RCW 4.22.070, Joint and Several Liability, and the Indivisibility of Harm Tort Reform 27 Gonzaga Law Review 1991-1992

27 Gonz. L. Rev. 193 (1991-1992)
RCW 4.22.070, Joint and Several Liability, and the Indivisibility of Harm

handle is hein.journals/gonlr27 and id is 205 raw text is: RCW 4.22.070, JOINT AND SEVERAL LIABILITY,
AND THE INDIVISIBILITY OF HARM
Bryan Hametiaux*
INTRODUCTION
In 1986, the Washington legislature enacted the so-called Tort Reform
Act.' Section 401 of this Act, now codified as RCW 4.22.070, effected
profound changes in Washington's tort compensation system. At the heart of
these changes is the repudiation of a fundamental tenet of the common law of
tort-the indivisibility of harm caused by joint or concurrent tortfeasors. This
article questions the constitutionality of RCW 4.22.070 in light of this
repudiation. The article is divided into five sections: section I examines the
statute and its operation; section 2 surveys the evolution of the doctrine of
joint and several liability and the principle of indivisibility of harm; section
3 sets forth an analysis as to why the legislature's disregard of the principle
of indivisibility of harm renders the statute unconstitutional; section 4
responds to Tom McLaughlin's and Brad Fisher's companion article;2 and,
section 5 discusses the effect of a finding of unconstitutionality.
I. RCW 4.22.070 AND ITS OPERATION
Since statehood, the doctrine of joint and several liability has been part
of Washington's common law.3 In 1981, the legislature expressly
acknowledged this doctrine as a rule of substantive law: If more than one
person is liable to a claimant on an indivisible claim for the same injury, death
or harm, the liability of such persons shall be joint and several.4
*Bryan Harnetiaux is a 1973 graduate of Gonzaga School of Law and practices law in
Spokane, Washington. He is also an adjunct professor at Gonzaga, teaching Foundations
of Appellate Practice. An earlier version of this article appeared in a two-part article in
the Washington State Trial Lawyers Association Trial News. See Bryan Harnetiaux, RCW
4.22.070, Joint and Several Liability, and the Indivisibility of Harm, TRIAL NEWS
(Washington State Trial Lawyers Assoc.), Feb. 1991, at 1, 16 and Bryan Harnetiaux, RCW
4.22.070, Joint and Several Liability, and the Indivisibility of Harm, TRIAL NEws
(Washington State Trial Lawyers Assoc.), Mar. 1991, at 9-10.
1. Tort Reform Act of 1986, ch. 305, 1986 Wash. Laws 1354.
2. See Thomas J. McLaughlin & Bradley L. Fisher, Apportioning the Indivisible:
Comparative Liability, 27 GONZ. L. REv. 207 (1991/92).
3. See infra notes 16-23 and accompanying text.
4. Tort Reform Act of 1981, ch. 27, 1981 Wash. Laws 112, at § 11 (codified as
amended at WASH. REV. CODE § 4.22.030 (1989)).

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