A recent Texas Supreme Court opinion—Gregory v. Chohan, No. 21-0017, 2023 WL 4035886 *1 (Tex. June 16, 2023)—has made it easier for defendants to present evidence of liability for parties not in the lawsuit and for juries to actually assign those parties a percentage of fault on the verdict form. Gregory clarified that the evidentiary standard for designating a responsible third party ("RTP") for apportionment at trial is a “no evidence” standard. A defendant must only present evidence raising a genuine issue of fact to add a non-party to the verdict form. This is the same standard applied to summary judgment, which has historically been a low bar for plaintiffs in Texas courts. The Gregory ruling should enable defendants to designate RTPs more easily.
Texas has long allowed juries to consider the fault of parties not present at trial and assign them a percentage of fault on the verdict form. See TEX. CIV. PRAC. & REM. CODE §§ 33.003, 33.004. RTPs can include any person who is alleged to have caused or contributed in any way to the harm, including bankruptcy trusts, unknown parties, and even immune parties (such as employers). See TEX. CIV. PRAC. & REM. CODE § 33.011(6); see PEMEX Exploracion y Produccion v. Murphy Energy Corp., 923 F. Supp. 2d 961, 980 (S.D. Tex. 2013); see Galbraith Eng'g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 868 n. 6 (Tex. 2009).
Procedurally, a defendant must file a motion for leave to designate a responsible third party. See TEX. CIV. PRAC. & REM. CODE § 33.004(a). After an adequate time for discovery, a plaintiff may move to strike the RTP on the ground that there is no evidence the RTP contributed to the harm. Id. at § 33.004(l). Then, the burden shifts back to the defendant to “produce sufficient evidence to raise a genuine issue of material fact regarding the designated person’s responsibility for the claimant’s injury or damage.” See id.
In Gregory, a New Prime eighteen-wheeler driven by Sarah Gregory jackknifed across multiple lanes of traffic on an icy highway near Amarillo, blocking a large portion of the road. A tragic multi-vehicle pileup ensued. In addition to the New Prime truck, the accident involved two passenger vehicles and six other eighteen-wheelers. The accident claimed four lives, including Bhupinder Deol, a truck driver involved in the accident who was killed while attempting to assist others involved in the wreck. Deol’s estate sued Gregory and New Prime, among others, seeking damages for his death.
Before trial, Gregory and New Prime sought to designate several responsible third parties, including another semi-truck company involved in the accident—ATG Transportation. Gregory and New Prime argued that it was not until the ATG truck arrived on the scene, tipped over, and blocked the remaining unobstructed portion of the road that the accident became unavoidable for approaching vehicles. The defendants reasoned that if Gregory was responsible for Deol’s death because of her negligence in obstructing the road, then the ATG driver must likewise be partially responsible because their negligence contributed to the dangerous road obstruction.
The trial court, upon request of Deol’s estate, struck the defendant’s RTP designations and later reaffirmed its ruling after presentation of the evidence. On appeal, the defendants chose only to appeal the exclusion of ATG. The court of appeals affirmed the trial court’s decision to exclude ATG, reasoning that the facts that lead to Deol’s death were solely attributable to Gregory’s negligence.
The Gregory court underscored the “obvious” similarity between the RTP standard and the no-evidence summary judgment standard. 2023 WL 4035886 *14. Reviewing de novo, the court found that the evidence would have permitted a reasonable jury to assign partial reasonability to ATG for Deol’s death. The court pointed to plaintiff’s own expert who testified that the ATG driver steered aggressively beyond the normal steering input and failed to control their speed. Further, a fact witness testified that when the ATG truck crashed it “went straight up in the air like it was [a] catapult.” “Prohibiting the jury from considering ATG’s partial responsibility for Deol’s death was harmful error because litigants have a ‘significant and substantive right to allow the fact finder to determine the proportionate responsibility of all responsible parties.’” Id. at *16. Due to the harmful error, the Texas Supreme Court ordered a new trial.
The Texas Supreme Court’s ruling in Gregory makes clear that all Texas courts should review RTP motions in the same manner as they review no evidence motions for summary judgment—has the defendant presented sufficient evidence to raise a genuine issue of material fact. This is relatively low bar in which defendants only need to come forward with some evidence. A trial court that does not apply this standard commits a harmful error requiring a new trial. Going forward, Texas courts should be more willing to allow defendants their right to have the jury hear argument and assign fault to RTPs. This ruling emphasizes that the jury is the sole adjudicator of proportioning fault and defendants have the right to present evidence of all contributing parties, regardless of how much or little an RTP may have contributed to a plaintiff’s injury.