Designating Immune Nonparties: Fair or Foul?
| Publication year | 1993 |
| Pages | 759 |
| Citation | Vol. 04 No. 1993 Pg. 759 |
1993, April, Pg. 759. Designating Immune Nonparties: Fair or Foul?
The "nonparty statute"---CRS § 13-21-111.5---which was enacted as part of the 1986 tort reform, allows a tort defendant to reduce his or her liability by designating a "nonparty" whose negligence or fault contributed to the plaintiff's loss. If the defendant designates a nonparty within ninety days, the amount of the judgment that he or she must pay will be reduced by the nonparty's percentage share of negligence or fault.
The nonparty statute's philosophical underpinning is clear enough: a tortfea-sor should pay only for the damages caused by his or her proportionate share of negligence. The tortfeasor should not have to pay for damages caused by someone else, whether or not that someone else is a party to the lawsuit. Presumably, the requirement of prompt notice is for the plaintiff's benefit: the plaintiff will have time to implead the designated non-party and obtain a full recovery.(fn1) This article addresses the issue of whether a negligent tortfeasor may reduce his or her liability by designating a nonparty the plaintiff may not implead---in other words, an immune nonparty.
Back in the "bad old days," any amount of contributory negligence completely barred a plaintiffs claim. Offsetting this harshness, at least a little, was the doctrine of joint and several liability. If the neglect of two or more tortfeasors caused the plaintiff's injuries, the plaintiff could collect the full amount of damages from either of them.
No one questioned that the doctrine of joint and several liability caused inequities. The matter was a choice of evils: if there had to be a loss, the question was whether that loss should be borne by a guilt-free victim or by a negligent tortfeasor. The obvious answer, and the one uniformly chosen by the courts, was that the cost should be borne by parties sharing responsibility for the injury.(fn2)
Comparative negligence became the law of the land in 1971.(fn3) Replacing contributory negligence with comparative negligence eliminated an illogical and antiquated bar to compensation.(fn4) Eventually, predictably, a defendant argued that the comparative negligence system is logically inconsistent with the common law doctrine of joint and several liability. That argument was made in Martinez v. Stefanich.(fn5)
In Martinez, the Colorado Supreme Court surveyed the law of other jurisdictions and found that every comparative negligence state retained the concept of joint and several liability unless specifically rejected by statute.(fn6) The court cited four reasons why the doctrine of joint and several liability should remain viable.
First, the court stated, "the feasibility of apportioning fault on a comparative basis did not render an indivisible injury divisible." Second, the court argued that
a plaintiff's culpability is not equivalent to that of a codefendant's, since his negligence relates only to a failure to use due care for his own protection, while a defendant's negligence relates to a lack of due care for the safety of others.
The third reason cited was that "fairness and public policy dictate that a wronged party should not be deprived of his right to damages." Fourth, the court concluded, "the fact that one defendant is impecunious should not relieve another defendant of liability for damages which he proximately caused."(fn7)
The Colorado General Assembly agreed with the Supreme Court. In 1977, it passed the Uniform Contribution Among Tortfeasors Act ("Contribution Act").(fn8) As originally enacted, the Contribution Act expressly provided that each tortfeasor would remain severally liable to the injured person.(fn9) However, the legislature reversed itself in 1986, declaring that
no defendant shall be liable for an amount greater than represented by the degree or percentage of the negligence or fault attributable to such defendant. . . .(fn10)
The same statute allowed consideration of a nonparty's negligence.(fn11)
The legislature abolished joint and several liability (presumably) because it could not be justified when a plaintiff's damages were caused, at least in part, by his or her own negligence. Each of the contrary arguments advanced in Martinez could be refuted.
The legislature apparently concluded that in many instances, the doctrine of
To continue reading
Request your trial