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I.
INTRODUCTION
As a matter of axiomatic principle, comparative fault ensures that all parties involved in an action will be liable only in proportion to their individual share of the total fault.' This article examines existing California jurisprudence, statutory law and the objectives of equitably distributing fault to all participants involved in a tort action rather than only to those whom a plaintiff chooses to sue or those remaining at the time of jury deliberations. California BAR Jury Instruction 16.72 (hereinafter "BAR 16.72"), is a special verdict form that contains an "Other Person" category for assigning responsibility for a plaintiff's injuries to unidentified partieS.2 Utilizing this instruction ostensibly results in an equitable apportionment of fault.
In California, virtually no judicial consideration has been accorded the explicit identification of parties who are no longer part of a lawsuit at the time of jury deliberations. Customarily, defendants who have settled with a plaintiff, or who were not named by the plaintiff, are vaguely identified as "other person"on BAR 16.72. Explicitly identifying the "absent"' parties by name, rather than as "other person," would ensure the jury's cognizance of all parties who may be at fault for a plaintiff's injuries.' Given the dearth of judicial consideration, suggesting that the "Other Person" category be used to particularly identify absent parties for the jury, is a fairly novel idea in California.
Part 11 of this article briefly reviews the policy behind comparative fault and illustrates that inequitable apportionments of liability are contrary to the comparative fault principles codified in California Code of Civil Procedure, section 1431.2.' Part III then reviews a case (in which the author was defense counsel) that exemplifies existing judicial reluctance to permit the explicit identification of absent parties on BAR 16.72. It also highlights BAR 16.72 which, when used to identify absent parties explicitly rather than as "Other Person," offers a defense mechanism that ensures equitable apportionment of fault within California's comparative fault regime. Finally, Part IV compares California's comparative fault principles and special verdicts with those of other jurisdictions.
Thus, BAJI 16.72 and Civ. Code section 1431.2 provide the legislative basis within which to explicitly list and identify all parties to the action on a special verdict form. From the perspective of defense strategy, the...