Prior to 1995 amendments to the state statutes, multiple defendants sued by a plaintiff who were found to be negligent (and whose percentage of liability exceeded the plaintiffs) would be "jointly and severally" liable to the plaintiff. This had the potential for anomalous results. A party who was found to have a very low percentage of liability (even something less than 10%) would find itself responsible for the all of the damages suffered by the plaintiffs. The paradigmatic case would be one in which the party who was found to have the lion's share of the liability had no money.
The amendments changed the law to impose joint and several liability on only those defendants who are found to be more than 50% liable or acted in concert with the other defendants. (If you are wondering what it means to say that a party has a certain percentage of liability, I can't help you. It's a mystery.)
The budget bill - the budget bill - would essentially return us to the pre-1995 state of the law. While the current version of the changes would require a defendant to be found to be 20% liable, that determination apparently only applies to those who have been sued by or settled with the plaintiff. This is a modification of prior law that required all potentially negligent parties (whether they have been sued or not) to have their causal negligence determined.
That modification substantially undermines the limitation on joint and several liability since the problem with the old law tended to result from negligent parties without money. Plaintiffs give up nothing by failing to sue them.
The trial lawyers association says that these anomalous results are rare. They claim that most cases have a single defendant and that the instances of cases in which a defendant with a low percentage of liability had to pay all of the damages are rare. (For a real life example, see Chart v. General Motors)
But that cuts both ways. If these cases are rare, then there is little reason to change the law to allow plaintiffs to recover from such defendants.
The argument for joint and several liability is to ensure that the plaintiff recovers all of her damages (less those that were caused by her own negligence.) That's a laudable goal but it is unclear why it should be furthered by making someone pay for more than the damages that her negligence caused. It is not the plaintiff's fault that she was injured by an insolvent defendant. But its not the fault of the remaining defendants either.
The argument to prefer the plaintiff over solvent defendants is that, as between an injured party and a "wrongdoer," we ought to stick it to the wrongdoer. But there are other considerations. If we hold defendants liable for more than the harm they have caused, we are likely to create incentives for excessive care and cause disproportionate increases in the insurance cost of certain types of businesses.
Those businesses, it seems to me, will be those in which there is a particular risk of harm from failing to control the actions of others. Thus, it makes sense that Jonathan Barry would be particularly concerned about the impact on a ski hill like Tyrol Basin. It faces a peculiar risk of being involved in an incident in which it is apportioned a relatively modest share of liability for an injury caused by an insolvent patron. Because such injuries are hard to predict and potentially catastrophic, insurance may be practically unavailable. If it remains in business, it may have to take extraordinary steps to limit the activities of skiers.
The latter is a problem because it is overdeterrence. It's one thing to make Tyrol Basin responsible for the harm that it causes. Its quite another to make it an insurer of the actions of its patrons.