Personal Injury Attorneys » Personal Injury Claims » What is the Empty Chair Defense in a Personal Injury Lawsuit?


    If you’re bringing a claim for recovery for your injuries, you may hear of or encounter the empty chair defense. It’s important to familiarize yourself with some possible arguments the other side may use to get out of paying you the full compensation you deserve.

    The empty chair defense attempts to place the blame on someone who isn’t a party to the lawsuit. Nevada allows the empty chair defense, but there are some critical limitations. Even with these restrictions, you may encounter this argument at trial, so it’s essential to prepare for the possibility. Here’s what you need to know about the empty chair defense in a personal injury lawsuit.

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    What Is the Empty Chair Defense?

    The empty chair defense is a common strategy in injury cases. The most basic explanation of the empty chair defense is to blame someone who is not a party to the case. When a defendant raises the empty chair defense in a Nevada courtroom, they’re trying to convince the jury that a third party is entirely to blame for the plaintiff’s losses.

    Under Nevada law, this defense is allowed with some rules and limitations. A defendant who uses the argument wants to deflect the jury’s criticism and place blame on a party who isn’t there to speak for themselves.

    No, there isn’t an actual empty chair in the courtroom. Instead, the defendant who is in the courtroom tells the jury that a person or business who isn’t there is entirely to blame for what happened. They ask the jury to find that they’re not responsible because what happened is the other person’s fault.

    An Example of the Empty Chair Defense

    Say you’re walking down the aisle in a supermarket. You come around the corner and trip on some large flats of soda. They’re on the ground in the aisle, and there’s no one else around. You sustain a broken arm and other significant injuries. You bring a claim against the supermarket to recover for your damages.

    Your trial date arrives, and the supermarket owners argue that it’s the soda distributor who’s responsible for your injuries. They say that the soda distributor’s employee left the flats of soda in the aisle. They assert that the supermarket employees didn’t have enough time to notice that the distributor left the flats of soda where someone could get hurt. In this case, the supermarket owners are using the empty chair defense.

    Nevada Doesn’t Allow a Defendant to Argue Comparative Negligence With a Non-Party

    In Nevada, the empty chair defense is all or nothing. The defendant can argue that a non-party is fully responsible for the plaintiff’s injuries.

    However, they can’t argue that they share responsibility for the plaintiff’s injuries with a non-party. Instead, they must argue that the plaintiff’s injuries are entirely the fault of the person who isn’t in the room.

    Nevada Revised Statute 41.141(1)

    The Nevada law that touches on the empty chair defense is Nevada Revised Statute 41.141(1). The law discusses the rules for all comparative negligence arguments in Nevada cases.

    Even though it doesn’t mention the empty chair defense by name, it says that a plaintiff may recover for their losses only if their own negligence is less than the defendant’s negligence or less than all of the combined negligence of the other parties. Because a person or business isn’t a party unless they’re named in the lawsuit, NRS 41.141 prevents the defendant from arguing that a non-party is partially responsible.

    Nevada Case Law


    In addition to NRS 41.141(1), there are Nevada cases that talk about the empty chair defense. In Blanco v. Allore, the court prohibited the defendant from using the empty chair defense. In that case, the defendant admitted he was partially to blame for the accident.

    However, he tried to argue that he was only partially to blame and that he shared liability with another driver. The court said that if he wanted to make that argument, he should have joined the other driver to the lawsuit. Because the time passed to join that other party, the defendant couldn’t argue that the non-party driver shared blame for the crash.

    In Banks ex. rel Banks v Sunrise Hosp., a man sued a hospital, surgeon, and anesthesiologist for the injuries the man sustained during surgery. The surgeon and the anesthesiologist settled with the man before trial. Under Nevada law, Sunrise Hospital could argue to the jury that the surgeon and anesthesiologist were fully responsible for the man’s damages. However, the court said that they couldn’t argue that they shared responsibility with these individuals.

    How Might an Empty Chair Happen in a Lawsuit?

    There are a number of reasons that an empty chair defense might happen during a lawsuit. If the plaintiff doesn’t name a party and the defense doesn’t choose to join them to the suit, an empty chair defense might be the result.

    The empty chair defense can also occur when one of the defendants settles with the plaintiff before trial. If a party is dismissed from the lawsuit because of summary judgment or other procedural reasons, it might be another way that the empty chair defense may come up in a personal injury lawsuit.

    What Happens When One Party Settles Before the Trial?

    If one party settles before trial, the jury doesn’t get to hear about it. They don’t get to know that the other side settled, and they don’t get to see the amount of the settlement. That’s because the court doesn’t want the jury to speculate as to the liability of the non-party and the reasons for the settlement.

    Related: Benefits of Settling Your Injury Claim Out of Court

    Fighting Back Against the Empty Chair Defense

    If you encounter the empty chair defense, there are things that you can do to fight back. Your Las Vegas personal injury attorney can make sure that you name all of the appropriate parties to the lawsuit. They can also help you evaluate the defense’s likely success with the empty chair defense when you make decisions about settling with one or more of the parties before the trial.

    Finally, carefully working with your attorney to prepare your evidence can show the jury how the defendant in the courtroom is liable for your damages and losses. If the jury is convinced that the defendant bears any liability at all, their empty chair defense will fail, and you’ll receive a full and fair recovery for your losses.

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      Adam S. Kutner - Las Vegas Car Accident Lawyer
      Adam S. Kutner

      With more than 33 years of experience fighting for victims of personal injury in the Las Vegas Valley, attorney Adam S. Kutner knows his way around the Nevada court system and how to get clients their settlement promptly and trouble-free.