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Rosner v. Denim & Diamonds Inc.10/31/1996
F L O R E Z, Judge.
Appellant and his friends were patrons of appellee, a popular country western nightclub. An unidentified patron took exception to the way appellant was talking to his girlfriend and confronted appellant. Eventually, appellant's friends and other patrons intervened and a brawl ensued, leaving appellant with injuries, including the loss of a portion of his right ear lobe. Appellant did not know his attackers. By the time the police arrived, the attackers and many witnesses had left the premises. The police report referred to the actual perpetrator as the "unidentified suspect." No employee of appellee or acquaintance of appellant was directly responsible for appellant's injuries.
Appellant filed a complaint against the nightclub, alleging that it was negligent in failing to properly train its employees to handle this type of altercation and in offering low-priced drink specials. Appellee timely filed a notice of nonparties at fault, designating as nonparties appellant's unknown attackers. Appellant moved to strike the notice. The trial court denied the motion after hearing oral argument. After a trial on the merits, the jury found that appellant's damages amounted to $100,000 and allocated fault: 75 percent to appellee, 10 percent to appellant, and 15 percent to nonparties at fault.
The issue on appeal is whether the trial court properly found that appellee had produced sufficient facts to comply with Ariz. R. Civ. P. 26(b)(5), 16 A.R.S., so as to allow the jury to consider allocating fault to the nonparty assailants. Appellant's position is that to comply with Rule 26(b)(5), which implements Arizona's comparative fault statute, A.R.S. § 12-2506, appellee had to supply the names and addresses of the nonparties at fault. Appellant argues that the comparative fault statute does not contemplate reducing a plaintiff's recovery by attributing fault to generic or "phantom" nonparties. That interpretation, however, is inapposite to the intent of a comparative fault statute, the purpose of which is to apportion fault among all tortfeasors. We conclude that the trial court properly allowed the jury to consider the fault of the unknown attackers in apportioning fault.
Resolution of this appeal requires us to interpret A.R.S. § 12-2506 and Rule 26(b)(5). Statutory interpretation is a matter of law and can be considered de novo on review. Wareing v. Falk, 182 Ariz. 495, 499, 897 P.2d 1381, 1385 (App. 1995). A substantive law is one which creates, defines, or regulates rights. Roddy v. County of Maricopa , 184 Ariz. 625, 627, 911 P.2d 631, 633 (App. 1996). Section 12-2506 is such a statute and reads, in pertinent part:
In assessing percentages of fault the trier of fact shall consider the fault of all persons who contributed to the alleged injury , death or damage to property, regardless of whether the person was, or could have been, named as a party to the suit. Negligence or fault of a nonparty may be considered if the plaintiff entered into a settlement agreement with the nonparty or if the defending party gives notice before trial, in accordance with the requirements established by court rule, that a nonparty was wholly or partially at fault.
(Emphasis added). This statute is implemented by Rule 26(b)(5), which reads as follows:
Any party who alleges, pursuant to A.R.S. § 12-2506(B) (as amended), that a person or entity not a party to the action was wholly or partially at fault in causing any personal injury, property damage or wrongful death for which damages are sought in the action shall provide the identity, location, and the facts supporting the claimed liability of such nonparty . . . . The trier of fact shall
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