Rosner v. Denim & Diamonds, Inc

In Rosner v. Denim & Diamonds, Inc., 188 Ariz. 431, 937 P.2d 353 (App. 1996), the plaintiff was injured in a fight at a nightclub, and his assailants fled before police arrived. Id. at 432, 937 P.2d at 354. The victim sued the nightclub, which filed a notice of nonparties at fault naming the unknown attackers. Id. The plaintiff argued that the notice did not satisfy Rule 26(b)(5) because it failed to provide sufficient identification to allow him to bring the nonparties into the lawsuit. Id. The trial court declined to strike the notice, and we affirmed. Id. at 434, 937 P.2d at 356. The Court held that the Rule could not abridge substantive statutory rights and should be construed in harmony with the statute, which was intended to permit apportionment of fault among all tortfeasors, even those who might be judgment-proof. Id. at 433, 937 P.2d at 355. But we did not hold that a party could ignore the Rule's requirements. In Roser, the defendant had hired an investigator, and despite having gone "to great lengths" to identify and locate the assailants, could not do so. Id. Also, the parties had stipulated that none knew the identity or location of the assailants. Id. The defendant's failure to identify the other tortfeasors resulted from sheer inability to do so. Further, the Court noted that the nonparty at fault notice had stated facts supporting the assailants' liability. Id. at 434, 937 P.2d at 356.