663-10.5 Government entity as a tortfeasor; abolition of joint and several liability. (a) Any other law to the contrary notwithstanding, including but not limited to sections 663-10.9, 663-11 to 663-13, 663-16, 663-17, and 663-31, in any case where a government entity is determined to be a tortfeasor along with one or more other tortfeasors, the government entity shall be liable for no more than that percentage share of the damages attributable to the government entity; provided that joint and several liability shall be retained for tort claims relating to the maintenance and design of highways pursuant to section 663-10.9.

(b) For purposes of this section, the liability of a government entity shall include its vicarious liability for the acts or omissions of its officers and employees.

(c) For purposes of this section, "government entity" means any unit of government in this State, including:

(1) The State;

(2) Any county or combination of counties, department, agency, institution, board, commission, district, council, bureau, office, governing authority, or other instrumentality of state or county government; and

(3) Any corporation or other establishment owned, operated, or managed by or on behalf of this State or any county. [L 1994, c 213, 1; am L 2001, c 300, 2; am L 2006, c 112, 1; am L 2017, c 12, 72]


Case Notes


The plain language of this section's nonretroactivity clause focuses upon the specific "acts or omissions" that predicate a plaintiff's claim, and, therefore, the clause's applicability is not keyed to when the plaintiff's cause of action "accrues"; thus, trial court erred in apportioning liability between department of education (DOE) and teacher and DOE was liable to plaintiffs for the full extent of their damages. 100 H. 34, 58 P.3d 545 (2002).

This section, which abolishes joint and several liability for government entities, did not supersede or impliedly repeal (1) 663-10.9(4), which expressly allows for recovery of non-economic damages in motor vehicle accidents involving the maintenance and design of highways, or (2) 663-10.9(1), that provides for the recovery of economic damages against joint tortfeasors in actions involving injury or death to persons. 110 H. 97, 129 P.3d 1125 (2006).

Plaintiffs' negligence claim included the right to recover under an unmodified doctrine of joint and several liability, as at the time their claim accrued, this section (2005) imposed joint and several liability for economic and noneconomic damages upon any jointly liable person; thus, because the legislature did not intend for Act 112, L 2006 to apply retroactively to divest the plaintiffs' accrued or substantive rights, the trial court correctly concluded that Act 112 did not apply to the case. 117 H. 262, 178 P.3d 538 (2008).

Where patient's estate was entitled to recover under the doctrine of joint and several liability in place at the time of patient's injury, trial court did not err in holding defendant hospital jointly and severally liable. 127 H. 325 (App.), 278 P.3d 382 (2012).



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