The Arkansas Supreme Court published an interim report of the special task force appointed last year to address several recurring issues in the civil justice system. Their report includes recommended changes to several important rules, and a discussion of the rationale for the proposed changes. The Court is now soliciting comments and further reports from the task force before deciding whether to implement the proposed changes.
The full report can be found here:
Comments should be submitted in writing to Les Steen, Clerk of the Supreme Court,
Attention: Task Force, Justice Building, 625 Marshall Street, Little Rock, AR 72201. The
comment period shall expire on March 14, 2014.
Here are some verbatim excerpts from the report:
In a per curiam order issued August 2, 2013, the Supreme Court established the Task Force to
consider problems with and recommend changes in the court-adopted procedural rules that
pertain to “parties, liability, and damages in civil litigation involving negligence, medical
malpractice, and related cases.”
The Task Force devoted more time to allocation of nonparty fault than to any other issue but
in the end could not reach consensus. Nevertheless, seven of the nine voting members agreed on
the recommendation included in this report.
In brief, the Task Force recommends adding new provisions to three Rules of Civil
Procedure: Rule 9(h), Rule 49(c), and Rule 52(a)(2). Rule 9(h) would be the exclusive procedural
mechanism for asserting the substantive right to an allocation of nonparty fault under Ark. Code
Ann. §§ 16-60-201 & 16-60-202(c), as amended by Act 1116 of 2013. Like similar rules in other
states, Rule 9(h) requires a defendant to assert a contribution claim for allocation of nonparty fault
in an answer or amended answer.
This pleading requirement assures notice to all parties and must be met if a nonparty’s fault
is to be determined by the trier of fact, as provided in proposed Rules 49(c) and 52(a)(2).
However, it does not apply to a nonparty whose status stems from a settlement with the plaintiff;
by statute, the trier of fact must determine a released joint tortfeasor’s “pro rata share of
responsibility” for the plaintiff’s damages. Ark. Code Ann. § 16-61-204(d).
The proposed additions to Rules 49 and 52 provide that, in actions for personal injury,
medical injury, wrongful death, or property damage, the trier of fact must “determine the fault of
all persons or entities, including those not made parties, who may have joint liability or several
liability” for the alleged harm if: (1) the plaintiff has settled with the nonparty, or the defendant
has given the notice required by Rule 9(h), and (2) the defendant has carried its burden of
establishing a prima facia case of the nonparty’s fault. The italicized language within the quotation
is taken from Ark. Code Ann. § 16-61-201 and is intended to be coextensive with the statute.
Under both rules, apportionment of fault to a nonparty is to be used only for determining
the percentage of fault of the parties, and a finding of fault can neither subject a nonparty to
liability in any action nor be introduced as evidence of liability in any action. These provisions are
based on Section 2 of Act 649 of 2003, the Civil Justice Reform Act. Section 2, codified at Ark.
Code Ann. § 16-55-202, was invalidated on separation-of-powers grounds in Johnson v. Rockwell
Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135 (2009).