The Nonparty at Fault Rule in Arizona

What Is the Nonparty at Fault Rule in Arizona?

In Arizona, a defendant can blame a person who is not even in your lawsuit. It is called naming a nonparty at fault, and it is the single biggest trap in Arizona injury law.

Arizona abolished joint liability. Under A.R.S. § 12-2506, each defendant pays only its own percentage of fault, and a jury can assign fault to someone who was never sued.

If a defendant points at an absent person or company, and that party is never brought into the case, the share of fault a jury parks on them can disappear from your recovery entirely.

Lawyers call it the empty chair. The defense gestures at an empty seat in the courtroom and asks the jury to blame whoever is supposed to be sitting in it.

It is also why Arizona injury cases are won or lost in the first months, when the responsible parties are still being identified.

Naming everyone who shares the blame, before a defendant names them as an empty chair, is one of the most important things a lawyer does on an Arizona case.

Several Liability: Why Each Defendant Pays Only Its Share

Most people assume that if several parties caused a crash, any one of them can be made to pay the full amount and then sort the shares out among themselves. That used to be the rule. It is called joint and several liability, and Arizona got rid of it.

A.R.S. § 12-2506 makes liability several only.^[1] The jury assigns each party a percentage of fault, and each defendant is responsible for its own percentage and no more. If three parties share the blame and one of them is broke, uninsured, or never sued, you do not collect their share from the others. You collect it from them, or not at all.

This is what makes the nonparty designation so powerful for the defense. A defendant who can shift even 40% of the fault onto an empty chair has cut its own exposure by 40%, and unless the injured person brought that nonparty into the case, that 40% is simply gone.

How the Empty Chair Shrinks a Recovery

The mechanics are easy to see in a real-world shape. Picture a crash where you are seriously hurt and the at-fault driver carries a small policy.

The driver's insurer names a nonparty at fault: the city, for a poorly designed intersection; the employer, for putting a fatigued driver on the road; a repair shop, for brakes that failed. The argument to the jury is that these absent parties, not the insured driver, caused the crash.

If your lawyer never brought those parties into the case, the jury still gets to put fault on them. Say the jury assigns 50% to the absent employer. Your recovery against the driver is cut in half, and there is no employer in the case to collect the other half from. The defense did not reduce your damages. It moved them to a chair nobody is sitting in.

Played in reverse, the same rule is an advantage. When every responsible party is identified and sued, the nonparty argument loses its target, and the full fault is spread across defendants who can actually pay.

The cases we lose sleep over are the ones where a responsible company was sitting right there in the file and never got named. If they contributed to the harm, they deserve to be named. The empty chair only works when the other side is the only one who did the homework.

The 150-Day Notice and Your Window to Respond

A defendant cannot spring an empty chair at trial. Arizona's court rules require it to give notice first. Under Arizona Rule of Civil Procedure 26(b)(5), a defendant must serve a Notice of Nonparty at Fault within 150 days of filing its answer, identifying the nonparty and the facts behind the fault claim.

That deadline exists for a reason that helps the injured person: it gives you time to add the named nonparty as an actual defendant before trial. The notice is the warning. The window to act on it is real but limited.

This is why an Arizona case has to be staffed early and watched closely. When a notice lands, the response is to investigate the named party, decide whether to bring them in, and do it before the statute of limitations or the procedural window closes. A nonparty designation that goes unanswered becomes the defense's best tool. Answered in time, it becomes another defendant on the hook.

When Defendants Are Still Jointly Liable

Several liability is the rule, but A.R.S. § 12-2506 keeps a few situations where defendants remain jointly liable, meaning one can be made to pay the whole amount. They are narrow, and they matter when they apply:

• Acting in concert. Where parties consciously agreed to pursue a common plan to commit an intentional tort, they are jointly liable for the harm that follows.
• Agency. Where one party was acting as the agent or servant of another, the principal can be held jointly liable for the agent's conduct.
• Federal Employers' Liability Act claims. Cases brought under the FELA, which covers railroad workers, keep traditional joint liability.

Spotting whether one of these exceptions applies can change the entire recovery picture, because it turns a divided, several recovery into one a single solvent defendant must answer for in full.

How We Keep the Chair From Staying Empty

The nonparty rule rewards the side that does the early investigation. Our Arizona personal injury lawyers work the liability question from the first week: who else touched this, who had a duty, who is the defense going to point at, and which of them can actually pay.

That means mapping every potential defendant, the property owner, the employer, the contractor, the product manufacturer, the government entity, before a defense lawyer maps them as empty chairs. It means reading every Notice of Nonparty at Fault closely and bringing the right parties into the case in time. And it means pairing this work with the comparative fault fight over your own percentage, because the two rules together decide how much of the recovery actually reaches you.