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AMI 307 Issues—Nonparty Fault

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil AMI 307
Arkansas Model Jury Instructions-Civil
November 2021 Update
Arkansas Supreme Court Committee On Jury Instructions-Civil
Chapter 3. Negligence, Fault, and Ordinary Care
AMI 307 Issues—Nonparty Fault
(Defendant) claims and has the burden of proving that (nonparty person or entity)[was][were] at fault and that [his][her][its][their] fault was a proximate cause of (plaintiff’s) injuries.
Even though (nonparty person or entity)[is][are] not a party to this case, you are to determine whether (defendant) has met that burden. If you find that (defendant) has met that burden, you are to determine to what extent (nonparty person’s or entity’s) fault contributed to (plaintiff’s) injuries, expressed as a percentage of 100 percent.
The fault of any one person or entity may be greater or lesser than that of another, or may be zero, but the total amount of fault, if you find any, must add up to 100 percent. This will be clear from the verdict form.
NOTE ON USE
This instruction applies to claims accruing on or after August 16, 2013, for personal injury, medical injury, wrongful death, or property damage in which the defendant seeks allocation of fault to nonparties.
This instruction is subject to Ark. R. Civ. P. 9, 49, and 52. This instruction is to be given only if the court finds that:
  • 1. the defendant has satisfied the notice requirements of Ark. R. Civ. P. 9(h) or the plaintiff has entered into a settlement agreement with the nonparty to whom the defendant seeks to allocate fault as provided in Ark. R. Civ. P. 49(c)(1)(A); and
  • 2. the defendant has carried the burden of establishing a prima facie case of the nonparty's fault as provided in Ark. R. Civ. P. 49(c)(1)(B).
An interrogatory based on the sample provided in AMI 307A is to be given in conjunction with this instruction.
This instruction and AMI 307A assume that appropriate instructions—which may include those governing the definition of fault (AMI 301), the applicable standard and burden of proof (AMI 202 and 203), the applicable standard of care (e.g., AMI 303 and 305 for negligence or AMI 1008 for strict products liability), and proximate cause (e.g., AMI 501)—have been given.
Refer to the Comment to AMI 307A for a case that involves fault-apportionment to multiple parties and that also involves allegations of a plaintiff's fault.
COMMENT
Under Ark. R. Civ. P. 9, 49, and 52, fault may be allocated to nonparties via one of two routes—upon settlement with that nonparty or upon notice—and in either case the party seeking fault-allocation must produce sufficient evidence to establish a prima facie case of the nonparty's fault.
The Court of Appeals held that fault cannot be allocated to an immune nonparty because Ark. Code Ann. § 16-55-201(a) speaks in terms of the allocation of fault among “defendants” to the action but is silent as to the allocation of nonparty fault. Industrial Iron Works, Inc. v. Hodge, 2020 Ark. App. 56, 595 S.W. 3d 9. The Court also held that the UCATA does not allow for the allocation of fault of an immune nonparty because the right of contribution applies only to “joint tortfeasors” which is defined as “…two (2) or more persons or entities who may have joint or several liability in tort for the same injury to person or property whether or not judgment has been recovered against all or some of them.” Ark. Code Ann. § 16-55-201(1). Thus, the Court reasoned, an immune employer is not an entity that can have joint or several liability in tort.
For a historical account of nonparty fault in Arkansas, refer to the 2021 edition of the Arkansas Model Jury Instructions—Civil.
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