Ralph Nader’s Opposition to Prop. 51

Proposition 51, on the ballot Tuesday, weakens the ability of persons who are exposed to injury and disease, to use a nearly four-century-old legal doctrine against multiple perpetrators in a court of law.

This doctrine is called joint and several liability. It gives injured plaintiffs the right to collect compensation for economic and non-economic damages from any one of the several defendants whose negligence or willful behavior together caused an indispensable harm. The defendant ruled at fault can then go against the other co-defendant and apportion their respective liabilities.

An example of the doctrine at work is seen in lawsuits by victims of toxic chemicals against several chemical companies who contaminate underground drinking water wells. Without this doctrine, plaintiffs would have the impossible evidential burden of proving what percentage share of the pollution goes to what polluter.

Why have centuries of conservative judges, beginning in England in 1613, applied this doctrine? Because as between the rights of innocent victims and multiple perpetrators, the burden of apportioning dollar responsibility is placed on the shoulders of the culprits when one or more of these defendants are found liable. Unable to escape accountability, the more powerful of the defendants cannot as easily shift the blame for the damage on to smaller local defendants. Joined in several liability also provides a greater incentive to make conditions safer or more healthful and to reach settlement of the dispute.


Finally, as Reagan appointee Lee Thomas, head of the Environmental Protection Agency, testified eloquently before Congress last year regarding the government’s ability to hold polluters fully accountable, “Knowledge that they can be held jointly and severally liable for full cleanup gives responsible parties the impetus to negotiate settlements for cleanup when the harm at a site is indivisible. Without this powerful tool, the incentives for delay while parties quibble over the particulars of individual contribution at the site may outweigh the real priority--getting on with the job of cleanup.”

Proposition 51 makes absurd or irrelevant promises to save tax revenues. Does anyone really believe that a municipality that is not jointly and severally liable for its significant role in an injury episode is going to reduce taxes? Does anyone really believe that a municipality that has chronically allowed harmful or illegal behavior either by its employees or by polluting companies it is supposed to be controlling should escape paying jointly and severally for the pain and suffering of victims?

The disappointing experience of Iowa, which yielded in 1983 to the insurance industry’s demands to limit several liability, led a prominent legislative supporter, the Iowa Senate majority leader, to testify later in several states, urging their lawmakers not to be taken the way his state was deceived.

More limitations on liability will lead to more limitations on defendants’ interest in pursuing safer and more healthful practices. Proposition 51 is urging California voters to reduce one segment of the basic human right of victims to have their day in court. That is the central issue to focus upon. The insurance and chemical companies and the lawyers can take care of themselves.

The victims’ lobby is only in our conscience as voters. A No vote against Proposition 51 will not only preserve a well-considered legal principle, but will also signal to all interest groups never to erode the basic rights of the innocent as part of economic wars between profit-seeking parties.