New Role for Nonparties in Tort Actions-the Empty Chair
| Publication year | 1986 |
| Pages | 1650 |
| Citation | Vol. 15 No. 9 Pg. 1650 |
1986, September, Pg. 1650. New Role for Nonparties in Tort Actions-The Empty Chair
In courtroom drama, the spotlight rarely falls on an empty chair. That may change, due to a new Colorado statute allowing factfinders to consider the negligence or fault of nonparties in tort actions.(fn1) The new statute may not give nonparties starring roles in every trial, but it will certainly thicken the plot.
The concept of considering nonparty fault was included within the new statute which establishes several liability among joint tortfeasors(fn2) and abrogates the common law rule of joint and several liability. CRS § 13-21-111.5 is a key element in the 1986 tort reform legislation. In the abolition of joint and several liability and by allowing the factfinder to consider the fault of nonparties who may or may not be potentially liable to the plaintiff, the Colorado legislature embraced a policy that no tortfeasor should have to pay more than his or her "fair share" of damages.
An underlying concept or goal of CRS § 13-21-111.5 is that all known causal negligence or fault will be present in the courtroom and evaluated by the factfinder. Whether this approach will invariably result in an appropriate recovery for a deserving plaintiff or, in certain circumstances, work to preclude such a full recovery remains problematical. Putting aside questions of fundamental fairness, the "presence" of nonparties in the courtroom may raise problems for civil litigators. This article discusses the new statute and some potential problems.
The new statute requires the finder of fact in a tort action to consider the negligence or fault of a nonparty if (1) the claimant has entered into a settlement agreement with the nonparty or (2) the defendant has given notice that a nonparty was wholly or partially at fault.(fn3)
Notice must be given within ninety days of the commencement of the action unless the court determines that more time is needed. The defendant gives notice by filing a pleading,
designating such nonparty and setting forth such nonparty's name and last-known address, or the best identification of such nonparty which is possible under the circumstances, together with a brief statement of the basis for believing such nonparty to be at fault.(fn4) The jury (or judge in a non-jury case) then may assign a percentage of negligence or fault to any nonparty who settled with the claimant or who was properly named by the defendant.
A finding of negligence or fault against a nonparty does not constitute a conclusive or presumptive finding as to that nonparty in another action.(fn5) The court may assess attorneys' fees if it finds that a defendant's designation of a nonparty was substantially frivolous, groundless or vexatious.(fn6)
Once an action is commenced, the defendant has ninety days (or more if the court finds it necessary) in which to give notice that a nonparty is wholly or partially at fault and to identify the nonparty.(fn7) The plaintiff must then amend the complaint if he wishes to have the nonparty joined in the suit and must do so before the statute of limitations runs. As the limitation period for most tort actions was recently shortened to two years,(fn8) the plaintiff should act promptly to join newly discovered parties if joinder is feasible and appropriate.
An obvious way for a plaintiff to attempt to avoid having claims time-barred is to file the original complaint more than three months prior to the end of the limitation period. However, this may not always be feasible. In addition, reliance on a lead time of ninety days could be to no avail if the court allows the defendant extra time to name a nonparty and does not also toll the statute of limitations during that time.(fn9) Requests for extensions of the ninety-day period may become common as defendants endeavor to avoid penalties for the frivolous designation of a nonparty(fn10) and for violation of the good-faith pleading requirement.(fn11)
A plaintiff should also seek to preserve potential claims against unknown nonparties by the prompt use of interrogatories to the defendant. All defendants...
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