Arizona Court of Appeals Division One holds that a notice of nonparty at fault need not always identify the nonparty’s name or location.

A motorist crashed into horses that had wandered through an open gate maintained by the State.  The motorist’s parents sued the State for negligently failing to secure the gate.  However, investigation revealed tire tracks of all-terrain vehicles (“ATVs”) through the gate, despite a sign warning the public to keep the gate closed.  The State therefore filed a notice of nonparty at fault alleging that “unknown ATV riders” had negligently left the gate open.  The superior court struck the notice because the State had neither identified nor attempted to locate the ATV riders.

On special action review, the Court of Appeals vacated the order striking the notice.  In Arizona, negligence is comparative.  By statute, a defendant is liable only for damages allocated “in direct proportion to that defendant’s percentage of fault.”  A.R.S. § 12-2506(A).  In assessing percentages of fault, the factfinder “shall consider the fault of all persons who contributed to the alleged injury . . . regardless of whether the person was, or could have been, named as a party to the suit.”  A.R.S. § 12-2506(B).

Under the Arizona Rules of Civil Procedure, a defendant that wishes to exercise its rights under this statute must file a notice of nonparty at fault.  The notice must disclose the “identity and location” of the nonparty and “the facts supporting the allegation of fault,” and the factfinder “may not allocate any percentage of fault to a nonparty who is not disclosed in accordance with this rule” except on “motion showing good cause, reasonable diligence, and lack of unfair prejudice.”  Ariz. R. Civ. P. 26(b)(5).

Although Rule 26(b)(5) requires disclosure of the “identity and location” of alleged nonparties at fault, this is a procedural requirement that cannot abridge a substantive statutory right.  In Arizona, defendants have a substantive statutory right to have the factfinder assess fault to a nonparty, and the inquiry under the statute is simply whether the defendant discloses facts sufficient to establish “the existence” of a nonparty at fault.  See Rosner v. Denim & Diamonds, Inc., 188 Ariz. 431, 433 (App. 1996).  Here, the State’s notice sufficiently alleged that the ATV riders should bear fault because they left the gate open.  The State’s failure to learn more about the ATV riders may impair the State’s ability to prove the riders were at fault but is not grounds for striking the notice.

The Court of Appeals “questioned” its earlier opinion, Scottsdale Ins. Co. v. Cendejas, 220 Ariz. 281 (App. 2009), to the extent it suggested that a notice of nonparty at fault must provide the plaintiff with enough information to bring the nonparty into the action before the statute of limitations expires.  A defendant has a right to have the factfinder assess fault to a nonparty, regardless of whether the plaintiff may locate and sue that nonparty.

The Court of Appeals emphasized that its decision was based on “the facts presented” and on “these circumstances,” suggesting that different facts could yield a different result.

Presiding Judge Johnsen delivered the opinion; Judges Brown and Perkins joined.