Fury Bailey - Personal Injury - Wrongful Death Attorneys

FILLING THE EMPTY CHAIR WITH A FRIEND

C. Steven Fury

Fury Bailey

710 Tenth Ave. East

P. O. Box 20397

Seattle , WA 98102

(206) 726-6600

FAX: 726-0288

steve@furybailey.com

Frivolous claims are very much in the news lately, with bills proposed in congress to address a supposed problem. Because of the rhetoric advocating for these bill and others, most of the public equates frivolous claims with frivolous lawsuits. But some of the most breathtakingly baseless claims are those made by a defendant alleging fault on a non-party.

Three years ago, Ed Dawson circulated a memo concerning the “black dog defense.”

Ed didn't go far enough. These days, the dogs' owner would allege that the child's injury was all the fault of the contractor who built the fence, the manufacturer of the chain, the municipality for failure to maintain a dog free sidewalk, and the pet storeowner from whom he bought the dog. It is the challenge of plaintiff's counsel how to deal with such mind-bogglingly baseless claims, and turn them to an advantage.

Of course you do discovery, but I propose a two-step process to limit the effect of such tactics, and perhaps turn them against the defendant.

But first a review of the legal tools in the arsenal.

•  The Statute.

One of the results of the 1986 Tort Reform Act was RCW 4.22.070(1):

(1) In all actions involving fault of more than one entity, the trier of fact shall determine the percentage of the total fault which is attributable to every entity which caused the claimant's damages except entities immune from liability to the claimant under Title 51 RCW. The sum of the percentages of the total fault attributed to at-fault entities shall equal one hundred percent. The entities whose fault shall be determined include the claimant or person suffering personal injury or incurring property damage, defendants, third-party defendants, entities released by the claimant, entities with any other individual defense against the claimant, and entities immune from liability to the claimant, but shall not include those entities immune from liability to the claimant under Title 51 RCW. Judgment shall be entered against each defendant except those who have been released by the claimant or are immune from liability to the claimant or have prevailed on any other individual defense against the claimant in an amount which represents that party's proportionate share of the claimant's total damages. The liability of each defendant shall be several only and shall not be joint except:

(a) A party shall be responsible for the fault of another person or for payment of the proportionate share of another party where both were acting in concert or when a person was acting as an agent or servant of the party.

(b) If the trier of fact determines that the claimant or party suffering bodily injury or incurring property damages was not at fault, the defendants against whom judgment is entered shall be jointly and severally liable for the sum of their proportionate shares of the claimants [claimant's] total damages.

We all know the result: any fault ascribed by the jury to a non-party has the same effect as comparative negligence to reduce any recovery of the plaintiff.

2. The Rule .

Fortunately, the rules help you find out who is being blamed, even without discovery. CR 12(i) requires non-party fault to be plead as an affirmative defense:

Non-party at fault. Whenever a defendant or third party defendant intends to claim for the purposes of RCW 4.22.070(1) that a non-party is at fault, such claim is an affirmative defense which shall be affirmatively pleaded by the party making the claim. The identity of any non-party claim to be at fault, if known to the party making the claim, shall also be affirmatively pleaded.

The effect of this is to require notice of making of the claim at all, and also the identity of any non-parties, so that, if they are not immune from suit, the plaintiff has the choice of joining them.

3. The Burden of Proof .

As with any affirmative defense, the burden of proof is on the defendant. The Supreme Court has made this plain in Adcox v. Children's Orthopedic Hospital & Medical Center , 123 Wn.2d 15, 164 P.2d 921 (1993).

And now the 2 Step Plan .

Step 1, The “Empty Briefcase” Summary Judgment Motion : Because the defendant has the burden of proof the plaintiff does not have to present any evidence to prevail on a motion for summary judgment, which is fortunate because often there is no such evidence. T. V. Young v. Key Pharmaceuticals, Inc. , 112 Wn.2d 216, 770 P.2d 182 (1989) followed Celotex v. Catrett , 477 U.S. 317 (1986) to hold that where the opposing party, in this case the defendant, has the burden of proof on an issue, the moving party in a summary judgment motion may establish a right to summary judgment by “pointing out . . . that there is an absence of evidence to support the non-moving party's case.” Carrying that burden of pointing out the absence of evidence is often not difficult, particularly where the affirmative defense is in the nature of “There's somebody out there somewhere who must be at fault, but I don't know who it is or what the basis is yet, maybe I'll figure it out later.”

Step 2, Name Them But Don't Blame Them. Sometimes the defendant can muster just barely enough evidence to create a genuine issue of material fact. In those cases, the summary judgment motion forces the defendant to be clearly the party fingering the empty chair. It is not plaintiff making a frivolous claim against an innocent third party. Civil Rule 8(e)(1) provides the means, by permitting pleading “alternatively or hypothetically” to name the empty chair without blaming them. The pleading is not that the entity being blamed by the defendant is at fault, but rather that the defendant asserts that the entity is at fault and therefore the claim must be made. The pleading might be something like this:

x. Plaintiff states that Innocent Bystander is not at fault in causing Plaintiff's injuries.

y. Dastardly Defendant has alleged an affirmative defense claiming that Innocent Bystander is at fault in causing Plaintiff's injuries.

z. In the event that Dastardly Defendant pleads and proves fault on the part of Innocent Bystander, Plaintiff makes claim against Innocent Bystander on the same basis.

This form of pleading has several purposes. First, it is essential to join the party or the chair is indeed entity. It is up to the plaintiff to make a claim against an empty chair, the pleading of an affirmative defense is not enough to bring the party into the suit. Mailloux v. State Farm , 76 Wash. App. 507, 887 P.2d 449 (1995). Second, pleading in this manner, and conducting discovery and presentation of the case consistent with the pleading, can fill the empty chair with an ally. If a plaintiff alleges that the previously empty chair party is not at fault and makes clear that its only the defendant that makes those claims, the counsel for the falsely blamed party may often end up assisting the plaintiff to prove her case. Finally, a jury is entitled to conclude that a defendant so intent on proving some third party (who the plaintiff does not even blame) is at fault must be at fault itself.

An example may be illustrative . Recently, my partner Bill Bailey and I tried the case of Philippides v. Bernard , 151 Wash.2d 376, 88 P.3d 939 (2004) . The appeal was about other issues, but at trial liability was hotly disputed. Bernard, a traveling Hush Puppy shoe salesman, ran over Yanni Philippides, riding a bicycle in the crosswalk. Bernard and his shoe company employer, Wolverine World Wide, denied he was at fault saying that he did not have time to stop. In addition, they blamed a bystander witness who was in a car stopped waiting to turn left. The bystander testified at his deposition that he was watching, the roadway was clear and it was safe for the bicyclist to cross in the crosswalk. As he was waiting for the bicyclist to cross he waved to the bicyclist to cross to indicate to him that it was safe to cross. Bernard blamed the bystander witness for negligently waiving. The plaintiff joined the witness as a party making clear throughout that the plaintiff did not blame him.

The dynamic in trial was striking. Counsel for the witness sat at plaintiff's counsel's table. The Court permitted four jury strikes per side. On the defense side they were split two to each defendant. On all liability arguments and witness examinations, counsel for the bystander presented evidence and argument favorable to the plaintiff. In the end, the jury was angry at Bernard for having blamed an innocent bystander.

ALWAYS Bring Your Own Affirmative Summary Judgment Motion .

In cases where the target defendant wakes up and realizes that making a bogus argument of fault on the part of an otherwise innocent party is a poor idea, do not rely on a stipulation or a summary judgment motion brought by the innocent party to resolve the issue of third party fault. It is essential to bring your own summary judgment motion on the affirmative defense. In three cases this summer, I have had defendants argue that a summary judgment order dismissing a party did not resolve the question of whether or not that party was at fault for the purposes of RCW 4.22.070(1). In one case, the target defendant brought a summary judgment motion to have the third party that it was blaming dismissed from the case to permit it to try the case against an empty chair. In another case, I brought a summary judgment motion on the affirmative defense, only to have it opposed on the ground that the other defendants are not bound by the plaintiff's incompetent pleadings! A form of motion is attached.

In summary, frivolous or stunningly weak claims of fault on the part of empty chair entities should be dealt with early and not only by discovery. A prompt affirmative summary judgment motion to dismiss affirmative defenses will smoke out whether or not there is enough evidence to raise a genuine issue of material fact. If the target defendant presents enough evidence to withstand a summary judgment motion, the defendant is doing the blaming, not the plaintiff. The entity must be joined, but “name them but don't blame them” to make them a friend.

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