No defendant wants to be the sole target in a tort case where multiple parties may have caused a plaintiff’s injury. Ohio public policy disfavors requiring a person to pay more than its fair share of a plaintiff’s damages. Ohio Revised Code Section 2307.22 provides for the apportionment of fault among multiple tortfeasors. Ohio Revised Code Section 2307.23 allows for apportionment of fault to persons who are not parties to the case. This is commonly known as the “empty-chair defense.” However, these basic principles can become more complicated when an absent person may be at fault for a plaintiff’s injury, but that party is legally immune from liability for some reason, for example governmental or worker’s compensation immunity.
The First District Court of Appeals recently addressed such a situation in Jester v. Utilmap Corp.
, 1st Dist. Hamilton No. C-170576, 2018-Ohio-4755. The case involved fatal injuries to an employee of a utility. The utility was granted summary judgment based on worker’s compensation immunity. A remaining defendant nevertheless argued that the utility had to be included on the verdict form. The plaintiff unsurprisingly disagreed.
The First District identified a split of Ohio authority on whether fault can be allocated to an immune empty-chair defendant. Id
. at ¶ 27. It noted that the Fifth District Court of Appeals had rejected apportionment of liability to an immune employer in Romig v. Baker Hi-Way Express, Inc.
, 5th Dist. Tuscarawas No. 2011AP-02-0008, 2012-Ohio-321.
The First District Court of Appeals in Jester
declined to follow Romig
, and held that a jury is allowed to allocate fault against an immune empty-chair defendant. 2018-Ohio-4755 at ¶ 28. The court concluded that this approach was “consistent with the purpose of the apportionment statute, ‘to ensure that no defendant pays more than its fair share of plaintiff’s damages.’” Id
., quoting Root v. Stalh Scott Fetzer Co.
, 8th Dist. Cuyahoga No. 104172, 2017-Ohio-8398, ¶ 78 (Nov. 2, 2017).
The First District also addressed the evidentiary standard for including an empty-chair defendant on the verdict form. It noted that in some circumstances, whether an empty-chair defendant was the proximate cause of an injury could be determined as a matter of law. 2018-Ohio-4755 at ¶ 32. However, it went on to hold that when “a reasonable juror could find an alleged tortfeasor negligent, the jury must be allowed to consider that tortfeasor's fault in accordance with R.C. 2307.23.” Id.
A defendant who wants to include an empty-chair defendant on the verdict form therefore must be prepared to respond to the equivalent of a summary judgment motion by the plaintiff on behalf of the empty-chair defendant on the issue of whether the empty-chair defendant’s conduct was a proximate cause of the plaintiff’s injury.
The approach adopted by the court in Jester
is consistent with that proposed by Frantz Ward partner Colleen Murnane in her article, Apportioning Liability to the Immune Empty Chair,
Cleveland Metropolitan Bar Journal (May 2018). A copy of her article, which collects cases addressing allocation of fault to immune parties, can be found here