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Continued... Page 3 > Filling the Empty Chair

(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 ìEmpty Briefcaseî 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 ìpointing 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 ìThere'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.

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