Ark. Code Ann. § 16-55-202 (2026)
Assessment of percentages of fault
- In assessing percentages of fault, the fact finder shall consider the fault of all persons or entities who contributed to the alleged injury or death or damage to property, tangible or intangible, regardless of whether the person or entity was or could have been named as a party to the suit.
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- Negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if the defending party gives notice that a nonparty was wholly or partially at fault not later than one hundred twenty (120) days prior to the date of trial.
- The notice shall be given by filing a pleading in the action designating the nonparty and setting forth the nonparty's name and last known address, or the best identification of the nonparty which is possible under the circumstances, together with a brief statement of the basis for believing the nonparty to be at fault.
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- Except as expressly stated in this section, nothing in this section shall eliminate or diminish any defenses or immunities which currently exist.
- Assessments of percentages of fault of nonparties shall be used only for accurately determining the percentage of fault of named parties.
- Where fault is assessed against nonparties, findings of fault shall not subject any nonparty to liability in any action or be introduced as evidence of liability in any action.
History. Acts 2003, No. 649, § 2.
Publisher's Notes. This section was held unconstitutional in Thomas v. Rockwell Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135 (2009).
Research References
Ark. L. Rev.
Samuel T. Waddell, Comment: Examining the Evolution of Nonparty Fault Apportionment in Arkansas: Must a Defendant Pay More Than Its Fair Share?, 66 Ark. L. Rev. 485 (2013).
Mark James Chaney, Recent Developments: Arkansas Supreme Court Issued Interim Report of Special Task Force on Practice and Procedure in Civil Cases Regarding Possible Changes to the Arkansas Rules of Civil Procedure Because of the Invalidation of Civil Justice Reform Act, 67 Ark. L. Rev. 193 (2014).
U. Ark. Little Rock L. Rev.
Justice Robert L. Brown, A Judicial Retrospective: Significant Decisions by the Arkansas Supreme Court From 1991 Through 2011, 34 U. Ark. Little Rock L. Rev. 219 (2012).
Sevawn Foster, Note: Constitutional Law — Arkansas’s Current Procedural Rulemaking Conundrum: Attempting to Quell the Political Discord, 37 U. Ark. Little Rock L. Rev. 105 (2014).
Case Notes
Constitutionality.
Eastern District of Arkansas, Western Division, district court did not have to address a constitutional challenge to this section, the nonparty notice provision of the Civil Justice Reform Act (CJRA), § 16-55-201 et seq., because the CJRA could be plausibly interpreted to comply with the United States and Arkansas Constitutions and to conform with the Arkansas Workers' Compensation Law, § 11-9-101 et seq., and the Arkansas Comparative Fault Act, § 16-64-122. Pursuant to the canon of constitutional avoidance, the district court would not rule on the constitutionality of this section because doing so was not absolutely necessary. Billings v. Aeropres Corp., 522 F. Supp. 2d 1121 (E.D. Ark. 2007).
This section was unconstitutional and conflicted with Ark. Const., Art. 4, § 2 and Ark. Const., Amend. 80, § 3 because rules regarding pleading, practice, and procedure were solely the responsibility of the supreme court; the nonparty-fault provision bypassed the rules of pleading, practice and procedure by setting up a procedure to determine the fault of a nonparty and mandating the consideration of that nonparty's fault in an effort to reduce a plaintiff's recovery. Thomas v. Rockwell Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135 (2009).
In a products liability action by an injured worker against the manufacturer of a defective chemical tank, the district court appropriately declined to allow the jury to assign a percentage of fault to the worker's employer, a nonparty, because the nonparty-fault provision in this section had been declared unconstitutional. McCoy v. Augusta Fiberglass Coatings, 593 F.3d 737 (8th Cir. 2010).
Application.
While a products liability defendant could issue a nonparty notice under subdivision (b)(2) of this section with regard to a nonparty equipment manufacturer, it could not issue an apportionment of damages notice under subdivision (b)(2) of this section with regard to an injured worker's employer and coemployee: (1) the purpose of the notice under this section was to allow an apportionment of liability with regard to the injured worker's damages; (2) a notice under this section could only be used with regard to an individual or entity that could be made a party to the suit by way of cross or third party claims; (3) defendant could file a notice under this section against the manufacturer, provided it filed a third party complaint and brought the manufacturer in as a party to the suit; and (4) defendant could not file a notice under this section against the employer or the coemployee because they were statutorily immune pursuant to § 11-9-105(a), the exclusive remedies provision of the Workers' Compensation Law, § 11-9-101 et seq.Billings v. Aeropres Corp., 522 F. Supp. 2d 1121 (E.D. Ark. 2007).
Interpretation.
Nonparty notice requirements set out in subdivision (b)(2) of this section apply in addition to state civil procedure rules. This section should be interpreted as being compatible with § 16-64-122(a), which limits the apportionment of fault to an individual or entity from whom the claiming party seeks to recover damages, which includes individuals and entities that are subject to being brought into a suit pursuant to a cross or third party claim under Ark. R. Civ. P. 13 and 14, but excludes nonparties who are otherwise immune from suit, including employers who are immune pursuant to § 11-9-105(a), the exclusive remedies provision of the Workers' Compensation Law, § 11-9-101 et seq.Billings v. Aeropres Corp., 522 F. Supp. 2d 1121 (E.D. Ark. 2007).