Why Naming a Fabre Defendant is Important to Recovering Damages
In a personal injury case, it may seem to make sense to sue each and every party that could be liable for your injuries. However, in many cases, potentially liable defendants are overlooked, and not sued. This can lead to serious consequences for an accident victim.
Apportionment of Liability
It’s important to first understand our system that allows apportionment of liability. A jury is allowed to apportion the percentage of liability between each defendant (and the victim as well). For example, in a two car rear end pileup, the jury could find Car 1 50% responsible, Car 2 30% responsible, and the victim 20% responsible.
If the victim’s damages were determined to be $100,000 in trial, the driver of Car 1 would owe $50,000, and Car 2 would owe $30,000 (the victim would not be able to recover $20,000, representing the 20% of the victim’s own negligence).
Leaving Out a Defendant
There are times when a potentially liable defendant is not sued. For example, someone who falls on a wet surface in a store may sue the store, but not the cleaning company that the store contracted with to do the cleaning safely. The un-sued cleaning company becomes what is known as a “Fabre Defendant” (named after a case of the same name).
A jury is allowed to apportion liability to the Fabre Defendant (the cleaning company in our example), even though the Fabre Defendant is not a party to the lawsuit. If a jury were to find the store 80% liable and the cleaning company 20% responsible, the effect would be that the victim could not recover 20% of whatever the total verdict may be.
As you can imagine, Defendants who are sued love trying to point the finger at Fabre Defendants, because the more liability given to the Fabre Defendant by the jury, the less is given to the sued Defendant.
Defendants Can Point the Finger
Defendants as well can use Fabre Defendants defensively. That means that even if you do not feel that anybody else is responsible for your injuries, a Defendant can still point the finger at that third party, thus forcing the victim to name the third party, or risk losing part of a verdict.
This exact situation happened recently in a lawsuit involving regal cinemas. A patron started acting erratically, forcing the evacuation of the patrons. A patron was injured in the evacuation and sued Regal. Regal in turn blamed the person who was out of control. He was never sued, but a jury found him to be 60% liable. The victim thus lost the ability to recover 60% of the damages that were awarded.
It is important to do the proper investigation to make sure all possible liable parties are being sued. If they are not, a victim should understand the risks of having liability apportioned to the un-sued Fabre Defendant.
The Tampa personal injury attorneys at Barbas, Nuñez, Sanders, Butler & Hovsepian can help you if you were injured in an accident of any kind. If you have suffered an injury, see and doctor and make an appointment to talk about the facts of your case with us. Schedule a consultation today.