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What Happens When a Party That is Liable for an Injury Is Not Sued as a Defendant?


When someone is injured in an accident, it may appear to be obvious that you should sue any company or person that could be liable for your injuries. But sometimes, liable parties can be missed or even left out of a lawsuit intentionally. It is vitally important to include every party that can possibly be liable for your injuries, because the jury is allowed to say that a party that was never sued is responsible for your injuries.

Liability for Defendants That Are Not Sued

Let’s assume that you slip and fall in the local grocery store. You sue the store. In the lawsuit, the store says that they are not the ones responsible for your injuries, but rather, an independent cleaning company is responsible. The store says the company that regularly comes in to clean floors did not do the job they were supposed to do.

You opt not to sue the cleaning company. Even though you did not sue them, a jury can still find them liable for your injuries. If a jury were to find, for example, that the cleaning company was 50% responsible for your injuries, you would not be able to be compensated for 50% of the amount of your judgment or verdict.

In a recent case, a man, acting erratically, screamed out in a movie theater. Frightened patrons, likely with thoughts of the mass shooting in Aurora, Colorado, headed towards the exits, injuring the victim in the stampede.

The movie theater was sued, and named the erratic patron as an unnamed party that should be held responsible for the injuries. The court held that this was proper, and the jury could determine how much liability that patron had, even though he was never named as a party.

Fabre Defendants

A defendant that is left off of the lawsuit, but which can still be given liability by a jury, is called a Fabre defendant (named after a case that established the doctrine). Victims must decide whether to sue all possible defendants, or leave one out of the lawsuit and hope that a jury does not find that unnamed defendant liable.

In some cases, defendants will want these extra companies or people named as additional defendants so that they have someone to point the finger at. In some cases, defendants may know that the plaintiff/victim does not want to name the Fabre defendant because that possible defendant may have no assets to pay a judgment.

In other cases, the Fabre defendant may not be able to be sued because there is no jurisdiction over them. This can happen when the unnamed party is a foreign company. If they cannot be served, and thus cannot be sued, that means that whatever damages the unnamed, Fabre defendant is found by the jury to have caused can never be recovered by the plaintiff.

If you have been injured as the result of the negligence of a property or business owner, make sure all liable parties are properly named and sued. Contact the consumer and injury attorneys at Jacobs Legal in Miami today to answer your questions and help you investigate your case.

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