Designation of Immune, Nonliable and Unknown Nonparties
| Publication year | 1993 |
| Pages | 31 |
1993, January, Pg. 31. Designation of Immune, Nonliable And Unknown Nonparties
Under Colorado's pro-rata liability system, a named defendant may designate "nonparties" within ninety days following commencement of the action, unless the court orders otherwise. At trial, the trier of fact is then permitted to attribute some or all of the negligence or fault to the designated nonparty, thereby reducing the named defendant's liability to the percentage of negligence or fault that the named defendant actually caused.(fn1)
Early articles on this topic assumed that designation of immune, nonliable and unknown nonparties would be permitted as a matter of course.(fn2) However, the designation of such nonparties has proven to be highly controversial.(fn3) This article discusses the propriety of designating nonparties who are immune, nonliable or unknown.
Two competing theories underlie the litigation in this area. The first theory maintains that the purpose of designating nonparties is to put the plaintiff on notice of other parties who may be liable, so the plaintiff can name the nonparties as new defendants and thereby reach additional potential sources of compensation. This theory is generally endorsed and advanced by claimants. Under this theory, the named defendant should be permitted to designate nonparties and demonstrate their fault at trial only when the plaintiff has a genuine opportunity to add the nonparty to the suit and prove the nonparty's liability. Thus, a named defendant should not be permitted to reduce his or her liability by casting blame on a nonparty if the plaintiff does not have the opportunity to recoup that percentage of fault against the nonparty.(fn4) The proponents of this theory also argue that designation of a nonparty when there is no possibility for the plaintiff to recover against the nonparty is a violation of equal protection, due process and a right to full compensation.(fn5)
The second theory is usually argued by the defendant. The defense argument is that the purpose of pro-rata liability is to ensure that liability is imposed in direct proportion to actual negligence or fault. The defense also argues that the named defendant, under the theory of several liability, should bear only his or her individual share of the liability.(fn6) Thus, the argument follows that a named defendant should not be forced to bear some percentage of negligence or fault that rightfully belongs to someone else, even if that other party is immune, nonliable or unknown. In some situations, this may mean that the plaintiff cannot obtain satisfaction of a judgment for all of the negligence or fault the jury attributes to the nonparty. However, at least the named defendant is not forced to shoulder blame that belongs elsewhere.
Although the plaintiff's theory may have some continuing viability, especially in the Colorado General Assembly,(fn7) the defense theory has been adopted by a majority of courts in every context in which the issue has been presented.
The issue of immunity arises when the defendant designates a nonparty that is a public entity or a public employee immune from liability because the nonparty is protected by CRS § 24-10-101 et seq., the Colorado Governmental Immunity Act. The Colorado Supreme Court and the Colorado Court of Appeals have not addressed the propriety of designating immune nonparties. However, the U.S. District Court for the District of Colorado faced this issue in In re Air Crash Disaster at Stapleton,(fn8) a diversity action to which the federal court applied Colorado law.
In the In re Air Crash case, two of the airline defendants designated the City of Denver as a nonparty. The plaintiffs moved to strike the designation on the grounds that (1) the city was immune under the Colorado Governmental Immunity Act and (2) apportionment of liability to such an immune nonparty would deprive them of due process, equal protection and their right to full compensation. The court denied the plaintiffs' motion to strike and permitted designation of the city as a nonparty despite its apparent immunity. The U.S. District Court held that the designation of an immune non-party does not violate equal protection, due process or any constitutional right to full compensation. The court further held
It seems likely that Colorado state courts will follow the U.S. District Court's analysis in In re Air Crash. That court's interpretation of the pro-rata liability statute is consistent with analogous Colorado common law...
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