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Hansen v. Scott6/10/2002
udes "acts or omissions that are in any measure negligent or reckless towards the person or property of the actor or others, or that subject a person to tort liability." Section 32-03.2-02, N.D.C.C. provides:
Contributory fault does not bar recovery in an action by any person to recover damages for death or injury to person or property unless the fault was as great as the combined fault of all other persons who contribute to the injury, but any damages allowed must be diminished in proportion to the amount of contributing fault attributable to the person recovering. The court may, and when requested by any party, shall direct the jury to find separate special verdicts determining the amount of damages and the percentage of fault attributable to each person, whether or not a party, who contributed to the injury. The court shall then reduce the amount of such damages in proportion to the amount of fault attributable to the person recovering. When two or more parties are found to have contributed to the injury, the liability of each party is several only, and is not joint, and each party is liable only for the amount of damages attributable to the percentage of fault of that party, except that any persons who act in concert in committing a tortious act or aid or encourage the act, or ratifies or adopts the act for their benefit, are jointly liable for all damages attributable to their combined percentage of fault. Under this section, fault includes negligence, malpractice, absolute liability, dram shop liability, failure to warn, reckless or willful conduct, assumption of risk, misuse of product, failure to avoid injury, and product liability, including product liability involving negligence or strict liability or breach of warranty for product defect.
[ ] Under N.D.C.C. §§ 32-03.2-01 and 32-03.2-02, a negligent tortfeasor's conduct is compared with an intentional tortfeasor's conduct, and absent "in concert" action, liability is several, not joint, with each tortfeasor liable only for the amount of fault allocated to that tortfeasor. See Rodenburg, 2001 ND 139, 26, 632 N.W.2d 407. Section 32-03.2-02, N.D.C.C., authorizes the trial court to instruct the jury to "find separate special verdicts determining the amount of damages and the percentage of fault attributable to each person, whether or not a party, who contributed to the injury ." See Haff, 1999 ND 94, 2-3, 15-17, 593 N.W.2d 383. That language contemplates an "empty chair" defense, which specifically permits an allocation of fault to each person who contributed to an injury even though that person may not be a party to the action. See V. Schwartz, Comparative Negligence § 15-5(a) (3d ed. 1994). See also Cornell Harbison Excavating, Inc. v. May, 546 N.E.2d 1186, 1187 (Ind. 1989) (in order for culpable nonparty to be assigned fault, nonparty must be subject to liability by civil action); Brown v. Keill, 580 P.2d 875, 876 (Kan. 1978) (even though parties cannot be joined formally as litigants or held legally responsible for proportionate fault, statute imposes liability based on proportionate fault of all parties to the occurrence which gave rise to the injuries and damages); Lines v. Ryan, 272 N.W.2d 896, 902-03 (Minn. 1978) (in submitting comparative fault to jury, trial court must submit names of all persons whose conduct could be found to be negligent and contributing as a cause to the plaintiff's injury or to the accident); Kirby Bldg. Syss. v. Mineral Exploration Co., 704 P.2d 1266, 1272 (Wyo. 1985) (jury must consider negligence not only of all the parties but all the participants in the transaction which produced the injuries sued upon).
[ ] Those authorities suggest an "empty chair" defense is applicable when there is, or
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