Markvicka v. Brodhead-Garrett Co.

76 F.R.D. 205 (D. Neb. 1977)



Fed. R. Civ. P. 14(a) permits the joinder of a party who "is or may be liable" to the defending party for all or part of the plaintiff's claim. Where state law creates a right to contribution or indemnity among tortfeasors, the wrongdoer who has been sued by an injured party may implead his co-wrongdoers before the plaintiff successfully obtains a judgment. The fact that contribution may not actually be obtained until the original defendant has been cast in judgment and has paid does not prevent impleader; the impleader judgment may be so fashioned as to protect the rights of the other tortfeasors, so that defendant's judgment over against them may not be enforced until the defendant has paid plaintiff's judgment or more than his proportionate share, whichever the law may require.


The minor child attributed his injuries to the defective design and condition of the jointer machine. The corporation's third-party complaint against the school district charged that the school district's improper maintenance of the machine and inadequate supervision of students caused the minor child's injuries. The third-party complaint alleged a right to indemnity. The court found that Fed. R. Civ. P. 14(a) permitted the joinder of the school district as a party who might have been liable to the corporation. If the corporation's allegations were true, the school district's negligence was a concurrent cause of the minor child's injury. The fact that the corporation erroneously defined its claim as one for indemnity did not alter the conclusion that the school district may have been liable for contribution.


Can a third party, who may be liable to the defendant due to the disposition of the case, be impleaded by the defendant?




The defendant has alleged that if it was at fault in the design or construction of the jointer machine, so was the School District in its maintenance of the machine and supervision of the students. Both owed the plaintiff a duty of care.

Therefore, as the School District "may be liable" for contribution, it may be joined as third-party defendant in this action in order to determine its accountability. The fact that the defendant erroneously defined its claim as "indemnity" does not alter this conclusion.  A claim should not be dismissed for insufficiency "unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim." At this stage of the proceedings, the Court will grant the defendant leave to amend the third-party complaint to state the correct theory for its cause of action. Accordingly, IT IS ORDERED that the motion of third-party defendant, the School District of Ralston, to dismiss the third-party complaint will be denied if, within ten (10) days hereof, the defendant, Brodhead-Garrett Company, amends its third-party complaint against the School District to allege a claim for contribution.

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