an empty chair beside the sea

Time to Lose the Empty Chair

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The so-called “empty chair” defense represents a means for the defendant to deny responsibility for causing the victim’s harm by alleging that (some or all of) it was instead caused by someone else who is not a party to the litigation. In other words, it seeks to apportion blame to someone who is in no position to defend him- or herself. 

Fabre v. Marin

In Florida, this defense has come to be known as the “Fabre defense” after the case of Fabre v. Marin, 623 So.2d 1182 (1993). 

In Fabre, Ann Marin had been injured while a passenger in a car driven by her husband, Ramon Marin. She sued Marie and Eddie Fabre, claiming that, while driving her husband’s car, Mrs. Fabre had negligently changed lanes in front of the Marin vehicle, causing the latter to swerve into a guardrail. 

At the jury charge conference, the trial judge denied the defendants’ request that the verdict form be drafted so as to allow the jury to apportion blame for the accident. However, to obviate the necessity of a retrial if this ruling later proved to be erroneous, Mrs. Marin agreed to have the issue of Mr. Marin’s negligence submitted to the jury for a post-trial verdict. 

The jury first returned a verdict that Mrs. Fabre should pay $12,750 in economic damages and $350,000 in non-economic damages. In its subsequent, post-trial verdict, it found that Mr. Marin and Mrs. Fabre were each 50% to blame for Mrs. Marin’s injury. Mrs. Fabre then appealed on the basis that the non-economic damages should instead have been reduced by 50% in accordance with the jury’s post-trial verdict. 

Former Florida Statute

At the time, Florida Statute 768.81(3) — Apportionment of Damages declared: 

In cases to which this section applies [including non-economic damages], 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 \SpecialChar ldots 

However, the doctrine of interspousal immunity meant that Mr. Marin could not be held liable for his wife’s injuries. As the Third District Court of Appeal correctly recognized, this meant that there was only one person who could be held liable for Mrs. Marin’s injuries — and that was Mrs. Fabre. Accordingly, the jury’s post-trial verdict was irrelevant, just as the trial judge had held, and so Mrs. Fabre remained liable to pay the full sum of Mrs. Marin’s damages. 

A majority of the Supreme Court of Florida thought it knew better. It announced: 

By its clear terms, judgment should be entered against each party liable on the basis of that party’s percentage of fault. The Fabres’ percentage of fault was 50%. 

And so Florida’s empty chair defense was born. 

This holding, of course, makes no sense at all. As both the statute and the quote above make clear, the law to be applied required the apportionment of damages only between parties who were liable. Since there was only one such party, there was no-one to whom to apportion some the damages for which the jury had held Mrs. Fabre responsible. 

Fabre is really a classic case of a court’s being led astray by information — in this case, the jury’s post-trial verdict — that was legally irrelevant. It is also, unfortunately, a classic case of the author of a sentence failing to understand his own prose. 

From Bad to Worse

At least Mr. Marin had notice of the case in which he was apparently held “liable.” But worse was to come. For the real significance of a case that reaches a jurisdiction’s final court of appeal lies in what the holding means for future disputes. 

Fabre has since been interpreted to mean that any defendant to a negligence action can now, as a means of having its own liability for damages reduced, attempt to blame another party without enjoining or impleading that other party in the case

Subsequent amendments to the Florida Statutes might appear to have mitigated this inherent injustice to both the plaintiff and non-impleaded third party. Florida Statute 768.81(3)(a)(2) now requires that “a defendant must prove at trial, by a preponderance of the evidence, the fault of the nonparty in causing the plaintiff’s injuries.” 

Yet this is actually even more bizarre than the original decision in Fabre itself. For the non-impleaded, yet maligned, third party will not be there to provide a defense in this “trial.” Instead, that defense is expected to be provided by the plaintiff! In this area of the law, Florida truly has passed through the looking-glass. 

The Common Law

It is not hard to see why the common law has traditionally refused to permit the empty chair defense. Indeed, common law jurisdictions outside the US — and many of those within the US — still refuse to recognize it. It provides instead a very simple mechanism for those defendants who seek to blame someone else for the plaintiff’s misfortune. The defendant has merely to enjoin, or implead, that other party. The person impleaded is then afforded an opportunity to defend him- or herslef against the allegations, and may indeed even implead yet further defendants. 

What might originally have started out looking like a trial between one plaintiff and one defendant may therefore end up having multiple defendants, many of whom are seeking redress from one another. But this is really a rather efficient process, because the legal positions of all those involved can then be settled in just one trial (or one extra-judicial settlement). 

Counter-Productive Ramifications

When Fabre was decided, those representing potential defendants hailed it as a major improvement in the law. 

Its effect, in practice, however, has been to dramatically increase the costs of everyone involved, largely to the detriment of defendants. 

This is because, in a state that recognizes the plea, the plaintiff must necessarily take the precaution of bringing suit against anyone even tangentially related to the case. 

The reason for so doing is that most of these defendants will then apply to the court for the suit against them to be dismissed with prejudice. Once the court has granted such a motion, no-one (including the remaining defendants) will then be able to attempt to apportion some or all of the blame for the victim’s harm to the former defendants. 

In other words, the interests of the plaintiff and the extraneous defendants are aligned in this instance. Neither wants to see these defendants sued, yet both are put to needless time and expense because of the empty chair defense. And nothing of practical benefit is achieved at the end.