The Nonparty Fabre Defendant

Posted by David Adelstein on February 20, 2016
Burden of Proof, Trial Perspectives

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I want to discuss the concept of a “Fabre defendant.” This is an important concept in negligence cases, particularly personal injury and property damage cases.

A ‘Fabre defendant’ is a nonparty defendant whom a party defendant asserts is wholly of partially responsible for the negligence alleged [by the plaintiff].Salazar v. Helicopter Structural & Maintenance, Inc., 986 So.2d 620, n.1 (Fla.2d DCA 2007).

As further explained in Florida Statute s. 768.81(3):

(3) Apportionment of damages.–In a negligence action, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability.

(a) 1. In order to allocate any or all fault to a nonparty, a defendant must affirmatively plead the fault of a nonparty and, absent a showing of good cause, identify the nonparty, if known, or describe the nonparty as specifically as practicable, either by motion or in the initial responsive pleading when defenses are first presented, subject to amendment any time before trial in accordance with the Florida Rules of Civil Procedure.

2. In order to allocate any or all fault to a nonparty and include the named or unnamed nonparty on the verdict form for purposes of apportioning damages, a defendant must prove at trial, by a preponderance of the evidence, the fault of the nonparty in causing the plaintiff’s injuries.

This means in order to allocate fault to a Fabre defendant (a nonparty) the named defendant must a) plead the fault of the nonparty and identify the nonparty in an affirmative defense, and, importantly b) prove at trial by a preponderance of evidence the fault of the nonparty (the Fabre defendant) causing plaintiff’s injuries in order to get that nonparty on the verdict form for purposes of having the jury allocate damages to the nonparty.  

Simply identifying the nonparty in an affirmative defense is not good enough. The burden of proof is on the named defendant to prove the nonparty’s negligence at trial to get that nonparty on the verdict form as a Fabre defendant. R.J. Reynolds Tobacco Company v. Grossman, 96 So.3d 917, 919-20 (Fla. 4th DCA 2012) (nonparty Fabre defendant may not be included on verdict form until defendant proves nonparty’s negligence at trial) . However, a named defendant cannot rely on the vicarious liability of a nonparty to prove that nonparty’s fault in order to get that nonparty identified on the verdict form. See Nash v. Wells Fargo Guard Services, Inc., 678 So.2d 1262, 1263 (Fla. 1996) (security company could not name hospital that hired it as Fabre defendant since hospital would only be vicariously liable based on the negligence of the security company).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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