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Continued... Page 4 > Filling the Empty Chair

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 ìalternatively or hypotheticallyî 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.

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