The Non-party Fault Strawman

One common defense theory that has come along in the age of tort reform is the apportionment of non-party fault.  Many state legislatures have now codified this into state law, and other states have had it introduced through the promulgation of a rule of civil procedure by the judicial branch.

Non-party fault has traditionally arisen in matters where the Plaintiff has settled with one Defendant but takes the remaining defendants to trial.  In this instance, of course, all fingers of the remaining defendants commonly point to the settling defendant.  Juries have historically been allowed to apportion fault by way of assigning a percentage of fault as to each party (if they get that far, of course).

Now, however, many states are allowing parties who were never a part of the suit to be named as possible joint tortfeasors pursuant to new non-party fault rules or statutes.  In these scenarios, a Defendant can put the Plaintiff on notice that it intends to have other non-parties placed on the verdict form along with the named Defendants.

Not only is this an attempt to dilute the possibility of a full verdict, it can be used as a smokescreen to completely divert the attention of the jury from the facts at issue in the case.  Careful research will show that in most jurisdictions, the defense will have to (a) provide prima facie evidence of the non-party fault, along with (b) that the non-party is a joint tortfeasor or they were otherwise acting in concert.

The law in many states will require the Defendant to name the non-party or otherwise provide sufficient identity in order to permit service of process in the event the non-party is added as a party following the notice. Further, the defendant should be required to state in concise language facts showing that the non-party is at fault.  Many states will limit the types of cases that allow for a notice of non-party fault to personal injury, medical negligence, property damage, or wrongful death alleged by the claimant.

In addition, the Plaintiff may have grounds to object to the notice if it is filed so close to the trial date so as to prevent the Plaintiff from (a) investigating the assertion or (b) name the non-party as a Defendant prior to trial.  Of course, the Defendant has the right to actually bring these non-parties into the suit by way of a Third Party Complaint, but this mechanism allows for a simpler process to try and muddy the water for the jury.

Defense tactics can cause worry and anxiety when filed at the last minute.  For these reasons, it is imperative to hire a veteran personal injury lawyer Little Rock AR relies on who has experience in these types of pleadings.


SHThanks to Steve Harrelson and our friends and co-contributors from Harrelson Law Firm, P.A. for their added insight into the non-party fault strawman.

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