The defendant who says it was not me, it was him, has a procedure for saying so, and it changes the arithmetic of the case. The person he points to is not sued, does not appear and does not pay. The jury still gives him a share, and every point of that share comes off what the defendants owe.
Responsible third party. Texas defines the term broadly: “any person who is alleged to have caused or contributed to causing in any way the harm for which recovery of damages is sought, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these” (Civil Practice and Remedies Code Section 33.011). The person need not be a party. He need not be someone the plaintiff could sue, or someone who can be found, or someone with insurance. The one person the definition excludes is a seller who is entitled to indemnity from a manufacturer under the products statute. Everyone else, the other driver, the shipper that loaded the trailer, the city that left the sign down, the bar that kept pouring, the employer, the plaintiff’s own passenger, is within it.
What the chair does. Texas submits one question of responsibility, and the law lists who goes in it. “The trier of fact, as to each cause of action asserted, shall determine the percentage of responsibility, stated in whole numbers,” for “each claimant,” “each defendant,” “each settling person” and “each responsible third party who has been designated under Section 33.004” (Section 33.003). The percentages add to one hundred. Then the payment rule applies: “a liable defendant is liable to a claimant only for the percentage of the damages found by the trier of fact equal to that defendant’s percentage of responsibility,” and jointly and severally for the claimant’s recoverable damages when that percentage is “greater than 50 percent” (Section 33.013). Put the two together and the designation does its work. A truck driver who is found 40 percent responsible, and the carrier that answers for him, pay 40 percent. If the jury puts 35 on the driver who pulled out and drove away, and 25 on the injured person, the carrier pays 40 percent of the verdict and is not jointly liable for the rest; the empty chair pays nothing, because no one sued him. The plaintiff’s own number also matters, because Comparative Fault explains that it reduces the recovery and, above half, bars it. The fight over the percentages is the fight, and the designation adds a chair to it that never has to be filled.
How it is done. The defendant files a motion for leave to designate. It “must be filed on or before the 60th day before the trial date” unless the court finds good cause for a later one. The court grants it unless another party objects within fifteen days of service, and even over an objection the court “shall grant leave” unless the objecting party establishes that the defendant “did not plead sufficient facts concerning the alleged responsibility of the person” and, “after having been granted leave to replead,” failed again (Section 33.004). The threshold is pleading, not proof. Proof comes later. “After adequate time for discovery, a party may move to strike the designation of a responsible third party on the ground that there is no evidence that the designated person is responsible for any portion of the claimant’s alleged injury or damage,” and the court grants the motion “unless a defendant produces sufficient evidence to raise a genuine issue of fact regarding the designated person’s responsibility.” The statute also says what the designation is not: it “does not by itself impose liability on the person,” and it “may not be used in any other proceeding, on the basis of res judicata, collateral estoppel, or any other legal theory, to impose liability on the person.” The chair is for the jury’s arithmetic only.
John Doe. The person need not have a name. If, “not later than 60 days after the filing of the defendant’s original answer,” the defendant alleges in an answer “that an unknown person committed a criminal act that was a cause of the loss or injury,” the court “shall grant” the designation if the defendant pleads facts showing “a reasonable probability that the act of the unknown person was criminal,” states “all identifying characteristics of the unknown person, known at the time of the answer,” and meets the pleading rules; the unknown person “is denominated as ‘Jane Doe’ or ‘John Doe’ until the person’s identity is known” (Section 33.004). Criminal does not mean violent. The rules of the road are penal: “A person commits an offense if the person performs an act prohibited or fails to perform an act required by this subtitle,” and “except as otherwise provided, an offense under this subtitle is a misdemeanor” (Transportation Code Section 542.301). A driver who pulled out from a side road without yielding, ran a light or crossed the center line, and was gone before anyone took a plate, committed an offense in the statute’s sense, and a defendant who pleads it in time can put him in the chair. A driver who stopped and then left adds the offense Render Aid describes, and Flight explains what the leaving is worth as evidence.
The phantom car. That is where the word cuts the injured person twice. The defendant hangs a share on a car no one can find. The injured person then turns to his own uninsured-motorist coverage, and finds that the policy, for an unknown owner or operator, pays only where “actual physical contact” occurred between the unknown person’s vehicle and the insured or the insured’s property (Insurance Code Section 1952.104). A car that forced a swerve and never touched anyone can carry a third of the responsibility in the courtroom and none of the loss under the policy. Single-Vehicle and The Swerve set out what a jury asks about the driver who swerved; the uninsured-motorist page explains the coverage. The answer to the phantom is evidence that he existed and what he did, from the first day: the camera on the pole, the dash camera in the truck behind, the witness who gave a statement, the physical marks on the road. A defendant who cannot raise a fact issue on the phantom’s responsibility loses the chair on a motion to strike.
The deadline underneath. The statute also closes one abuse. A defendant “may not designate a person as a responsible third party with respect to a claimant’s cause of action after the applicable limitations period on the cause of action has expired with respect to the responsible third party if the defendant has failed to comply with its obligations, if any, to timely disclose that the person may be designated” (Section 33.004). The rule points at the plaintiff’s own calendar. When the person in the chair can be found and reached, the usual answer is to bring him in as a defendant before the limitations period runs, so that the share the jury hands him is a share someone pays; Limitations is the clock. That is the reason a serious truck case names every hand that touched the load early, the carrier, the broker, the shipper, the maintenance contractor, the other driver, rather than waiting to see whom the defendant points at sixty days before trial. The trucking company page describes those defendants.
Why the word matters. A responsible third party is not a defense. It does not say the injured person was not hurt or that the defendant did nothing wrong. It says that someone else did too, and asks the jury to divide the blame in a way the payment rule turns into money. Read early, the word is a map of every person the defendant will blame. Read late, it is a verdict that adds to one hundred and pays out a fraction.
The definition: Tex. Civ. Prac. & Rem. Code § 33.011(6). The question: § 33.003. The designation: § 33.004 (subsections (a), (d), (f), (g), (i), (j), (k) and (l), quoted as FindLaw publishes them). Payment: § 33.013 (several liability; joint and several above 50 percent). The offense: Tex. Transp. Code § 542.301. The phantom: Tex. Ins. Code § 1952.104 (actual physical contact for an unknown owner or operator). Statutory text as published at publication; the percentages in the example are arithmetic, not a case.
