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Pedge v. RM Holdings12/19/2002
otice of the identity of the nonparty. The identity of Pedge's assailant or assailants is unknown, but it is undisputed that someone assaulted Pedge. While we acknowledge that designating an unknown party with sufficient particularity may be difficult, we conclude that defendants' nonparty designation sufficiently complied with § 13-21-111.5(3), and that the designation of the unidentified assailant or assailants alleged a sufficient basis for believing the nonparty or nonparties to be wholly or partially at fault. Hence, the nonparty designation issue was properly raised here by defendants.
Contrary to Pedge's contention, we also conclude Young v. Clark, 814 P.2d 364 (Colo. 1991), supports our determination that unidentified or unknown persons may be designated as nonparties pursuant to Colorado's pro rata apportionment statute.
In Young, the supreme court considered whether the sudden emergency doctrine is compatible with the designation of nonparties under § 13-21-111.5(3). There, the defendant rear-ended the plaintiff after an unidentified driver swerved into plaintiff's lane, causing the plaintiff to apply the brakes suddenly. The defendant designated the unidentified driver as a nonparty.
Although the supreme court did not address the exact issue before us, it expressly noted that "the designation of the unidentified driver . . . enabled [the defendant] to present evidence in support of her theory that she was not at fault for creating the emergency situation." Young v. Clark, supra, 814 P.2d at 369; cf. Ramirez v. Mixsooke, 907 P.2d 617 (Colo. App. 1994)(panel assumed propriety of defendant's designation of unidentified nonparty under § 13-21-111.5(3)).
A number of other jurisdictions have upheld the designation of unidentified nonparties, and we are persuaded by their reasoning. See Bartlett v. New Mexico Welding Supply, Inc., 98 N.M. 152, 646 P.2d 579 (N.M. Ct. App. 1982)(under analogous state statute, defendant may designate unknown "phantom" driver as nonparty); Paul v. N.L. Indus., Inc., 624 P.2d 68 (Okla. 1980)(noting it is accepted practice to include all tortfeasors in the apportionment question, including phantom drivers, unknown tortfeasors, and persons alleged to be negligent but not liable for damages); Jacobs v. Milwaukee & Suburban Transp. Corp., 41 Wis. 2d 661, 165 N.W.2d 162 (1969)(fact finder permitted to apportion liability to unknown driver); see also Kurt G. Stiegelmeier, Designation of Immune, Nonliable and Unknown Nonparties, 22 Colo. Law. 31 (Jan. 1993)(designation of unknown nonparties is consistent with plain language of the statute and long-established practice of designating unknown defendants as "John Does"). But see Veazey v. Elmwood Plantation Assocs., Ltd., 650 So. 2d 712 (La. 1994); Field v. Boyer Co., 952 P.2d 1078 (Utah 1998).
Accordingly, we conclude the trial court erred in striking defendants' designation and in refusing to instruct the jury to consider the fault of the unidentified nonparty or nonparties, and we reverse and remand for a new trial.
II.
Because it will arise on remand, we also address Vantage Point's contention that the trial court erred in determining Pedge was an invitee, rather than a licensee, with respect to it. We disagree.
An invitee is a person who enters or remains on the land of another to transact business in which the parties are mutually interested. Section 13-21-115(5)(a), C.R.S. 2002. An invitee may recover for damages caused by the landowner's failure to exercise reasonable care to protect against dangers of which the landowner actually knew or should have known. Section 13-21-115(3)(c)(I), C.R.S. 2002.
A licensee is on
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