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3.5-6 Apportionment Claim - One Defendant
(No Special Defense) and One Apportionment Respondent Only
Revised to January 1, 2008
Note: This charge
is designed to be used when the plaintiff has sued one defendant who
has filed a notice of apportionment against another potential
tortfeasor – called here the apportionment respondent – and the
apportionment respondent is not a party to the case at the time of
trial.
The defendant has made a
claim in this case regarding the negligence of another (person /
driver), <insert name of apportionment respondent, hereafter
"AR"> who has not been sued in this case. Because the plaintiff
has not sued AR, AR is not liable to pay money damages to the
plaintiff; but the conduct of AR must be considered by you in
determining whether the defendant is liable to pay damages to the
plaintiff and in determining whether any damages assessed against
the defendant should be reduced because of AR's conduct.
The defendant claims that
AR was negligent and that, if the plaintiff suffered injury, it was
AR's negligence that legally caused injury to the plaintiff. Here
are the defendant's claims concerning AR's conduct:
<Charge on the
specifications of negligence against AR.>
I have previously
explained to you how to analyze claims of negligence and causation.
The same analysis applies with respect to the defendant's claim
against AR. What is different is the burden of proof. As to this
claim of the defendant, it is the defendant's burden to prove the
allegations concerning AR by a preponderance of the evidence. I
also remind you that unless you first determine that the plaintiff
has carried (his/her) burden of proof, that is, that the plaintiff
has proved that the negligence of the defendant legally caused
injury to the plaintiff, you need not evaluate the claim of the
defendant about the negligence of AR. That is because a finding
about AR's responsibility serves only to reduce any damages owed by
the defendant to the plaintiff and not to relieve the defendant of
liability.
If you find that
plaintiff has proved (his/her) claim against the defendant and that
the defendant has proved (his/her) claim regarding AR, you will have
to allocate the percentage of negligence attributable to the
defendant and the negligence attributable to AR, with the total
amount of negligence equaling 100%. You must then reduce the amount
of damages to be awarded to the plaintiff from the defendant by any
percentage of negligence which the defendant proves to be
attributable to AR.
Assume, for example, that
the defendant has proved that AR was negligent, that AR's negligence
caused injury to the plaintiff, and that AR's negligence constituted
25% of all proven negligence that caused the plaintiff's injury.
[That would logically mean that you have found that the remaining
75% was attributable to the defendant, because the total amount of
the negligence must always equal 100%.] Let us also assume you
determine damages to be $100. You would then reduce your award to
the plaintiff by the 25% that was attributable to AR, and your award
to the plaintiff from the defendant would be $75.
In another example, if
you were to find that all of the plaintiff's injuries – 100% – were
caused by the negligence of AR and none at all were attributable to
the defendant, then that would mean you have found that the
defendant is not liable to the plaintiff at all and your verdict
must be for the defendant.
Notes
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