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The Quarterly Dose

Reshaping Applicability of The Pennsylvania Fair Share Act: The Impact of Spencer v. Johnson

The Quarterly Dose – November 2024

November 1, 2024

by John C. Farrell

Under Pennsylvania law, a defendant’s exposure in a multi-defendant case depends upon more than just the extent of fault and total damages at stake. Now, under a more recent interpretation of the Pennsylvania Fair Share Act by the Pennsylvania Superior Court in Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021), that exposure may be amplified. 

Before delving into the specifics of the Fair Share Act, codified in 42 Pa. C.S. § 7102, it is helpful to understand three key legal terms: joint and several liability, several liability, and comparative negligence.

“Joint and several liability” means that any one defendant who is found liable may be required to pay the full extent of the plaintiff’s damages. For example, a jury awards the plaintiff $10,000. The jury finds that Defendant A is 40% liable and Defendant B is 60% liable. The plaintiff may recover the entire $10,000 from Defendant A, leaving Defendant A to seek contribution from Defendant B for the $6,000 for which Defendant A was not actually at fault. 

Under “several liability,” each defendant who is found liable will only be required to pay their proportionate share of liability. Using the same example as above, Defendant A would only be required to pay their 40% share, in this case $4,000, to the plaintiff in a several liability system. 

“Comparative negligence” in Pennsylvania means that a plaintiff’s recovery will be reduced in proportion to the percentage of negligence attributed to the plaintiff (unless the plaintiff is greater than 50% liable, in which case the plaintiff is barred from recovering). For example, if a jury awards a plaintiff $10,000 in damages but finds that the plaintiff was 30% causally negligent, the plaintiff will only be entitled to recover $7,000 in total. 

Prior to 2011, Pennsylvania was a joint and several liability jurisdiction. Then, in June 2011, the Fair Share Act became law. In short, the Fair Share Act states that a defendant who is found less than 60% liable will only be responsible to pay damages proportional to the fault attributed to that defendant by the jury. Consequently, many in the legal community thought that the Fair Share Act had implemented several liability in cases where a defendant was found less than 60% liable.  

Ten years later, the Pennsylvania Superior Court suggested in Spencer that in order for the Fair Share Act to apply, the plaintiff’s comparative negligence must be an issue in the case. While this portion of the Spencer opinion is arguably dicta, it has ultimately been treated as binding precedent by courts in Pennsylvania. See, e.g., Snyder v. Hunt, 268 A.3d 416 (Pa. Super. 2021) (unpublished) (holding that because the defendants “did not appear to allege, much less to prove, that [plaintiff] was contributorily negligent, the Fair Share Act ... does not shield them from the common law of joint and several liability under Spencer.”). This means that a defendant who is found less than 60% liable will be subject to joint and several liability unless there is causal negligence attributed to the plaintiff. 

Defendants in health care liability cases are undoubtedly affected by the recent interpretation of the Fair Share Act. To illustrate how consequential these changes can be, here is another example. 

Dr. X is an orthopedic surgeon. Dr. X has privileges at Noname Hospital, which does not employ Dr. X or hold him out as their employee. Dr. X’s patient, John Doe, agrees to undergo knee replacement surgery, to be performed by Dr. X at Noname Hospital. On the evening before the surgery, and unbeknownst to the hospital and John Doe, Dr. X suddenly cancels his malpractice insurance policy and loses all of his savings at a casino. The next morning, he fails to meet the standard of care when performing John Doe’s knee replacement surgery, causing John Doe to sustain serious injuries. 

John Doe sues Dr. X for negligence, and also sues Noname Hospital for corporate negligence, alleging that they failed to create and enforce adequate policies to ensure quality care. At trial, the jury finds in John Doe’s favor against both defendants. The jury apportions 95% of liability to Dr. X and 5% of liability to Noname Hospital. The jury also awards John Doe $10,000,000 in damages. Under the previous, literal interpretation of the Fair Share Act, the hospital would only be required to pay damages proportional to the fault attributed to it, which would be $500,000. After Spencer, however, the Fair Share Act does not apply because John Doe was not comparatively negligent. John Doe would therefore be entitled to recover the full $10,000,000 from Noname Hospital. Furthermore, given Dr. X’s recent financial woes, the hospital would have trouble seeking contribution from Dr. X.  

Let’s take that same example and add one twist: before the surgery, John Doe failed to take pre-operative antibiotics, without disclosing this to hospital staff, which exacerbated his injuries. At trial, Noname Hospital presents evidence of John Doe’s comparative negligence, but the jury returns the same $10,000,000 verdict. This time, however, the jury apportions 94% of liability to Dr. X, 5% of liability to Noname Hospital, and 1% of liability to John Doe for failing to take his pre-operative medication. Now, because the plaintiff’s comparative negligence is at issue, the Fair Share Act will apply, and Noname Hospital’s liability will be several. John Doe can only recover $500,000 from the hospital, and will have to seek recovery of the remaining $9,400,000 from Dr. X. 

Ultimately, a health care defendant’s exposure in Pennsylvania depends on the financial solvency and amount of insurance covering the co-defendants, and the comparative negligence of the plaintiff. In cases where comparative negligence is not at issue, liability is joint and several, and the plaintiff can recover all of their damages from any one defendant. When there is good evidence of comparative negligence, defendants should present that evidence at trial in order to potentially obtain the protection of several liability pursuant to the Fair Share Act. 


 

The Quarterly Dose – November 2024, has been prepared for our readers by Marshall Dennehey. It is solely intended to provide information on recent legal developments and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects. If you receive the alerts in error, please send a note to tamontemuro@mdwcg.com. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2024 Marshall Dennehey. All Rights Reserved.

Firm Highlights

Thought Leadership

Appellate Court Rejects Horizontal Immunity Defense to Company Not Acting as Statutory Subcontractor

The First District Court of Appeal held that a property management company was not entitled to horizontal immunity under section 440.10(1)(e), Florida Statutes, in a negligence action brought by an employee of another company working on the property. The claimant was injured while servicing a swimming pool at an apartment complex. His employer had contracted with the property owner to maintain the pool. Following the accident, the claimant received workers' compensation benefits through his employer’s carrier. The claimant subsequently filed a negligence action against the property management company, alleging that it failed to maintain the premises in a reasonably safe condition and failed to warn him of a dangerous condition that caused his injuries. The property management company had been retained by the property owner to maintain the complex in good operating condition and to perform routine maintenance and repair work. The property management company argued that it was immune from suit under section 440.10(1)(e) of Florida’s Workers’ Compensation Law. That provision grants immunity to a subcontractor providing services in conjunction with a contractor on the same project or contract work from civil actions brought by employees of another subcontractor, subject to limited exceptions. According to the property management company, it qualified as a subcontractor working on the same project as the claimant’s employer and was therefore entitled to horizontal immunity. The trial court agreed and entered summary judgment in its favor. On appeal, however, the claimant argued, and the appellate court agreed, that horizontal immunity applies only when a contractor has sublet work arising from a contractual obligation owed to a third party. The court noted that prior decisions consistently held that an entity acting solely on its own behalf as the owner of property, rather than pursuant to a contract with a third party, is not a “contractor” under section 440.10(1), even when it hires other companies to perform work on the property. In Teed, the property management company could not establish that the property owner had a primary contractual obligation to a third party to maintain either the apartment complex or the swimming pool, which it then delegated to the claimant’s employer or the property management company. As a result, the property owner did not qualify as a statutory contractor, and the property management company was not a subcontractor entitled to horizontal immunity under section 440.10(1)(e). The First District therefore reversed the lower court’s ruling and remanded the case for further proceedings on the claimant’s negligence claim.

Thought Leadership

Commonwealth Court Holds That a Claimant Who Was Struck By a Car While Crossing the Street During an Unpaid Break Was In the Course and Scope of Employment

This case involved a claim petition filed by a claimant who sustained injuries after being struck by a vehicle while crossing the street in front of the employer’s premises. The employer denied the claim based on course and scope, as the accident occurred during one of two mandatory fifteen (15) minute breaks provided to the claimant. The claimant would punch out at the beginning of a break and punch back in when the break was over.  On the date of the incident, the claimant punched out and left the building to get lunch at a restaurant, which required her to cross the employer’s parking lot, and then a public street, where the injury occurred. The Workers Compensation Judge (WCJ) dismissed the petition, noting that that during the two mandatory fifteen-minute breaks per shift allowed by the employer, the claimant was free to leave the employer’s premises, and during breaks, permitted to engage in whatever activity she desired. The WCJ found that at the time of the accident, the claimant was on her own time, in the middle of the street, and going to get lunch.   The claimant filed an appeal with the Worker’s Compensation Appeal Board (Board), and the Board reversed.  According to the Board, the claimant’s location was still on the employer’s premises, as the claimant was taking her customary route while using a reasonable ingress/egress from the employer.  Further, the Board found that the “Personal Comfort Doctrine” applied, as the claimant was on a momentary departure to take care of her personal comfort, within the window of time she was allotted for her break.  The Board remanded the case, and a WCJ granted the claim petition.  The Board affirmed, and the employer appealed to the Commonwealth Court. Before the Court, the employer argued that the claimant was not in the course and scope of her employment, because the injury did not occur on its premises, and the claimant was outside the bounds of the Personal Comfort Doctrine. The Court, however, rejected these arguments, and dismissed the employer’s appeal.  The Court noted that the break given to the claimant was so cursory, when she set out to relieve her hunger for her own personal comfort,  she remained in the course of her employment when she sustained her injuries.  A Petition for Allowance of Appeal in the Supreme Court has been filed by the Employer, Giant Eagle.

Thought Leadership

New Jersey Workers’ Compensation Legislation Updates

Since June 1, 2026, there have been no new New Jersey workers’ compensation related cases from the Appellate or Supreme Courts. As such, below will highlight any new legislative updates since February. A1023 | S3984 - Medical Use of Cannabis Under Certain Circumstances This requires workers’ compensation, PIP, and health insurance coverage for the medical use of cannabis under certain circumstances. It was introduced on January 13, 2026 and referred to the Assembly Financial Institutions and Insurance Committee. It was also introduced on March 19, 2026 and referred to the Senate Commerce Committee. A1045  - Certain Injuries to Volunteer and Professional Public Safety and Law Enforcement Personnel This revises workers’ compensation coverage for certain injuries to volunteer and professional public safety and law enforcement personnel. It was introduced on January 13, 2026 and referred to the Assembly Labor Committee. A1384 | S2757 - Reduce Statute of Limitations in Medical Fee Disputes This reduces statute of limitations from six years to two years in medical fee disputes in workers’ compensation matters. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. A1870 | S1379 - Workers' Compensation Benefits For Certain Workers Due to September 11, 2001 Terrorist Attacks This provides workers’ compensation benefits for certain public safety workers who developed illness or injury as result of responding to September 11, 2001 terrorist attacks. It was introduced on January 13, 2026 and referred to the Assembly Labor Committee. It was also introduced on the same day and referred to the Senate Labor Committee. On February 5, 2026, it was reported from the Senate Committee, 2nd Reading, and referred to the Senate Budget and Appropriations Committee. A2779 | S1521 - Excludes Certain Illegal Aliens This excludes certain illegal aliens from workers’ compensation and temporary disability benefits. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. A2792 | S1555 -  Prevent Intoxicated Employees from Workers’ Compensation This prevents intoxicated employees from receiving workers’ compensation. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. A3167 | S2372 - Workers’ Compensation Insurance Requirements for Certain Corporations and Partnerships This concerns workers’ compensation insurance requirements for certain corporations and partnerships. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. A3548 | S3571 – Maximum Benefits for Certain Volunteers This provides certain volunteer and other workers with maximum compensation benefit for workers' compensation claim regardless of outside employment. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. On March 2, 2026, it was reported from the Senate Committee, 2nd Reading, and referred to the Senate Budget and Appropriations Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. On May 7, 2026, it was reported and referred to Assembly State and Local Government Committee. A3724 - Personal Liability to Employer Officers for Failure to Pay for Coverage This provides personal liability for owner, executive officer, or executive director of employer for failure to pay for workers' compensation coverage. It was introduced on January 13, 2026 and referred to the Assembly Labor Committee. On May 7, 2026, it was reported and referred to Assembly Judiciary Committee. A4617  - Certain Workers' Compensation Supplemental Benefits and Funding Method This concerns certain workers' compensation supplemental benefits and funding method. For a permanently and totally disabled worker or surviving dependents after December 31, 1979, with some exceptions, this bill provides for an annual cost of living adjustment in the weekly workers’ compensation benefit rate. It was introduced on March 10, 2026 and referred to the Assembly Labor Committee. S241 - Inclusion in Database of Appointed Officials This requires that workers’ compensation judges and administrative law judges be included in database of appointed officials. It was introduced on January 13, 2026 to the Senate, Referred to Senate State Government, Wagering, Tourism & Historic Preservation Committee. S2290 -  Mandatory Retirement Age This increases statutory mandatory retirement age for Supreme Court Justices, Superior Court Judges, Tax Court Judges, Administrative Law Judges, and Workers’ Compensation Judges from 70 to 72. It was introduced on January 13, 2026 and referred to the Senate Judiciary Committee. S3144 - Testimony in Workers’ Compensation This concerns submission of testimony in workers’ compensation claims. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. S3342  - Increase Mandatory Retirement Age This increases statutory mandatory retirement age for Supreme Court Justices, Superior Court Judges, Tax Court Judges, Administrative Law Judges, and Workers’ Compensation Judges from 70 to 75. It was introduced on February 5, 2026 and referred to the Senate Judiciary Committee.