Home » Las Vegas Personal Injury » What is the Empty Chair Defense in a Personal Injury Lawsuit?

If you are filing a recovery claim for your injuries, you may hear or find the empty chair defense. It is important that you familiarize yourself with some possible arguments the other party can use to get out of paying you the full compensation you deserve.

The empty chair defense attempts to blame someone who is not part of the lawsuit. Nevada allows empty chair defense, but there are some critical limitations. Even with these restrictions, you can find this argument at trial, so preparing for the possibility is essential. Here’s what you need to know about defending the empty chair in a personal injury lawsuit .

What is the empty chair defense?

Defending the empty chair is a common strategy in injury cases. The most basic explanation of the empty chair defense is to blame someone who is not a party to the case. When a defendant raises the defense from the empty chair in a Nevada courthouse, they are trying to convince the jury that a third party is solely responsible for the plaintiff’s losses.

Under Nevada law, this defense is allowed with some rules and limitations. A defendant using argument wants to deflect criticism from the jury and blame a party who is not there to speak for themselves.

No, there is not an empty chair in the room. Instead, the defendant in the courtroom tells the jury that a person or company that is not there is solely responsible for what happened. They ask the jury to find out that they are not responsible because what happened is the fault of the other person.

An example of the empty chair defense

Let’s say you are walking down the aisle at a supermarket. You come around the corner and ride on some great refreshment floors. They are on the floor in the hallway, and there is no one else around. You sustain a broken arm and other significant injuries. You file a lawsuit against the supermarket to recover your damages.

His test date arrives and the supermarket owners argue that it is the soda distributor that is responsible for his injuries. They say the soda dispenser employee left the soda floors in the hallway. They claim that the supermarket employees did not have enough time to realize that the distributor left the soda containers where someone could get hurt. In this case, the supermarket owners are using the empty defense chair.

Nevada does not allow a defendant to discuss comparative negligence with a non-party

In Nevada, the empty chair defense is all or nothing. The defendant may argue that a non-party is fully responsible for the plaintiff’s injuries.

However, they cannot argue that they share responsibility for the plaintiff’s injuries with a third party. Instead, they must argue that the plaintiff’s injuries are entirely the fault of the person not in the room.

Nevada Revised Statute 41.141 (1)

The Nevada law that touches on the empty chair defense is Nevada Revised Statute 41.141 (1) . The law discusses the rules for all comparative negligence arguments in Nevada cases.

Although it does not mention the empty chair defense by name, it does say that a plaintiff can recover for his losses only if his own negligence is less than the defendant’s negligence or less than all of the other parties’ negligence combined. Because a person or business is not a party unless named in the lawsuit, NRS 41.141 prevents the defendant from holding that a non-party is partially responsible.

Nevada Jurisprudence

In addition to NRS 41.141 (1), there are Nevada cases that speak to empty chair defense. In v White. Allore , the court prohibited the defendant from using the defense of the empty chair. In that case, the defendant admitted that he was partially at fault for the accident.

However, he tried to argue that he was only partially at fault and shared responsibility with another driver. The court said that if you wanted to make that argument, you should have joined the other driver in the lawsuit. Because time passed to join the other party, the defendant could not argue that the non-party driver shared blame for the accident.

In the former banks. rel Banks v Sunrise Hosp. , a man sued a hospital, surgeon and anesthesiologist for the injuries the man sustained during surgery. The surgeon and anesthesiologist settled with the man before the trial. Under Nevada law, Sunrise Hospital could argue to the jury that the surgeon and anesthesiologist were responsible for the man’s injuries. However, the court said they could not argue that they shared responsibility with these people.

How could an empty chair happen in a lawsuit?

There are a number of reasons why an empty chair defense can occur during a lawsuit. If the plaintiff does not name a party and the defense does not choose to join the lawsuit, the result could be an empty chair defense.

The empty chair defense can also occur when one of the defendants resolves with the plaintiff before trial. If a party is excluded from the lawsuit due to summary judgment or other procedural reasons, it could be another way for the empty chair defense to come forward in a personal injury lawsuit.

What happens when a party reaches an agreement before trial?

If one of the parties is resolved before trial, the jury will not find out. They don’t realize that the other party settled down and they can’t see the settlement amount. This is because the court does not want the jury to speculate on the non-party’s liability and the reasons for the settlement.

Related: Benefits of Settling Your Injury Claim Out of Court

Fighting the defense of the empty chair

If you come across empty chair defense, there are things you can do to fight back. Your Las Vegas personal injury attorney can ensure that you designate all the appropriate parties to the claim. They can also help you evaluate the potential success of the defense with the empty defense chair when making decisions about how to settle with one or more of the parties before trial.

Finally, working carefully with your attorney to prepare your evidence can show the jury how the defendant in the courtroom is liable for your damages and losses. If the jury is convinced that the defendant assumes any responsibility, your empty chair defense will fail and you will receive a full and fair recovery for your losses.

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