Dealing with Non-Parties at Fault Defenses

A.R.S. §12-2601 et seq.  establishes several liability in Arizona. The statute holds that each defendant is liable only for the amount of damages allocated to the defendant in direct proportion to the defendant’s percentage of fault. The statute also provides that when assessing the percentages of each defendant’s fault, the fact finder “shall consider the fault of all persons who have contributed to the alleged injury. . . regardless of whether the person was, or could have been, named as a party to the suit.” The percentages of fault assessed against such “non-parties are used only as a vehicle for accurately determining the fault of the named parties.” Assessment of fault against a non-party does not subject a non-party to liability.

This portion of the comparative negligence/fault statutes in Arizona has been interpreted very broadly.

The defendant is allowed to name a non-party at fault even if the plaintiff is prohibited from directly naming or recovering from such party. For example, the defendant can name the plaintiff’s employer who is otherwise immune from plaintiff’s claim. HYPERLINK

So-called “phantom” tortfeasors, which are unknown to all parties may be considered by the jury in apportioning fault. HYPERLINK

The fault of intentional tortfeasors may even be included. HYPERLINK

Negligent conduct of one tortfeasor may even be compared against the intentional conduct of another. HYPERLINK

Even criminal conduct of a non-party may be considered by the jury in allocating fault. HYPERLINK 

While evidence of other tortfeasors’ negligence, intentional wrongdoing, or strict liability, is still subject to Supreme Court interpretation, existing case law supports a very broad inclusion of all entities’ fault comparisons. This is of considerable advantage to a defendant who can designate non-parties at fault, resulting in the “laying off” of defendant’s liability to a non-party, which cannot defend itself. Notice of non-parties at fault must be given early in the case.

A defendant must designate non-parties at fault within one-hundred fifty days of the answer. HYPERLINK  Additional time may be granted upon motion based upon newly discovered evidence.

Practice pointers. Practioners should file suit with time to spare before the statute of limitations runs, so that the 150 day deadline for naming non-parties at fault comes with sufficient time to amend the complaint to add new parties before the statute runs. HYPERLINK  Uniform Personal Injury Interrogatory, No. 5″Uniform Personal Injury Interrogatory, No. 5 should be served with the complaint seeking identity of non-parties at fault, facts supporting such designations and legal theories of why the non-party is at fault.