I am a little worried that I do not immediately grasp the significance of Rep. Lawson’s proposed legislation in HB 1318 which changes the definition of “nonparty” in civil litigation. A “nonparty” usually refers to someone involved in an incident that caused damage to someone but who has not been named as a party in the lawsuit. Typically, a victim will sue a tortfeasor for damage caused by that person. The tortfeasor will respond, in part, by saying, “hey, it’s not my fault, it’s Nonparty’s fault.” The victim then has an opportunity (usually) to bring the nonparty into the litigation, but if the nonparty is not named as a party, the nonparty can still be an “empty chair” at trial to whom a jury can assign some or all of the fault. (The nonparty would not be liable to the victim for the jury’s decision in this regard, rather the damage attributable to the nonparty would be money the victim could not recover from the tortfeasor who was named as a defendant.)
In any case, Rep. Lawson’s legislation would change the definition of nonparty from:
A person who caused or contributed to cause the alleged injury, death, or damage to property who has not been joined in the action as a defendant.
to
a person who may be liable to the claimant, in whole or in part, for the damage claimed, but who has not been joined in the action as a defendant. The term does not include an employer of a claimant.
The part about the employer is particularly weird to me. What if an employer contributed to whatever injury a Defendant is accused of having caused? In that situation, the Defendant shouldn’t be limited in his defense simply because the victim’s relationship to the other tortfeasor happens to be that of employee/employer.
The primary distinction between the current version and the proposed version is the distinction between “caused or contributed to” and “liable to.” While of course I’m too lazy to look it up, this seems to be something of a reversion to the language that existed in a prior version of the Comparative Fault Act. I began practicing in 1999, and it seems to me that the revision was within a few years prior to that. The intent of the change of definition is to limit the class of persons or entities that a defendant can be name as a nonparty. Under the current version, someone who is beyond the reach of the Plaintiff–a foreign entity, an employer against whom a claim would be barred by the Work Comp Act, and the like–can nonetheless be named as a nonparty. Under Rep. Lawson’s version, and the old version, only a person who could actually be sued by the Plaintiff can be a nonparty.
This comes up quite a bit in construction site accident cases. Suppose that an employee of a subcontractor is injured because of his employer’s failure to protect him, e.g. by providing a worn-out safety harness. A general contractor that has assumed a general duty of worksite safety can nonetheless, under the current law, name the employer as a nonparty because the employer was responsible for the employees safety and provided the defective safety protection. Under this law, an employer who was overwhelmingly responsible for the incident could not be a nonparty.
Long story short, my guess is that the ITLA supports this measure.
Hmm, just being litigious here, but under a strict reading of the “may be liable to” language, I wonder if that would preclude adding as a non-party an entity with whom the plaintiff has already entered into a settlement and signed a release.
Hey Doug… thanks for the opinion but no doubt you meant to specify “nonparty” rather that “non-party” to distinguish between entities or persons of interest and those of no interest in a matter’s proceedings or adjudication