A jury is asked to divide up the blame for a crash, and the defense keeps pointing at a chair that no one is sitting in. The other driver who was never sued, the contractor who already settled, the stranger who fled the scene — the defendant wants the jury to pile fault onto those absent people so its own share, and its own check, comes out smaller. This is the empty-chair defense: the attempt to shift responsibility onto someone who is not a party to the case, a person who cannot answer back because they are not in the room. The strategy trades on a kind of absence: an accuser who is present and a target who is not, so that every unanswered accusation seems a little more plausible than it should. Recognizing the tactic for what it is, rather than accepting the picture the defense paints, is the first step in blunting it. Whether it works, and how much it can cost an injured person, depends on rules that many people never think about until a defense lawyer starts gesturing at an empty seat.
Massachusetts law does not let a defendant escape responsibility so easily. Because the Commonwealth keeps joint and several liability and channels disputes among wrongdoers into a separate contribution process, a defendant generally cannot simply invite the jury to assign fault to an absent non-party and walk away paying less to the injured plaintiff. The way fault is compared, who it is compared among, and what happens when someone has settled or is immune all shape whether the empty chair is a real defense or just a piece of theater. The distinction matters enormously to how much an injured person actually recovers.
What follows is how the empty-chair defense fares in Massachusetts: whether a defendant can blame an absent person, how fault is apportioned among the parties who are actually in the case, what happens with settled, immune, or unknown wrongdoers, and how joint and several liability and contribution fit together. This is general information, not advice about a specific case. Because the way fault is divided starts with the comparative-negligence rule, our discussion of how fault is aggregated among multiple defendants is a natural companion to this one.
Can a defendant blame someone who isn’t in the courtroom?
The instinct behind the empty-chair defense is simple: if the defendant can convince the jury that someone else — someone who is not on trial — caused most of the harm, then the defendant looks less responsible and pays less. The tactic gets its name from the picture it paints for the jury, a defense lawyer gesturing at an empty seat where the “real” wrongdoer supposedly belongs.
Why the tactic is limited in Massachusetts
In Massachusetts, that picture usually cannot be turned into a smaller verdict against the plaintiff, because the state retains joint and several liability. Under that rule, when more than one defendant negligently causes a single, indivisible injury, each of them can be held responsible for the whole of the plaintiff’s damages, not merely for a slice measured by their own percentage of fault. An injured person is not required to collect a little from this wrongdoer and a little from that one; a defendant who is even partly responsible for the harm can be made to pay the full judgment. That structure takes much of the air out of the empty-chair strategy, because pointing at an absent person does not shrink the defendant’s exposure to the plaintiff. The defendant may still owe the entire judgment even after a jury hears at length about someone who never took the stand. What looks, in closing argument, like a devastating reason to pay less is often, under the governing rules, no reason at all.
The defendant’s real remedy: bring the other party in
None of this means a defendant is stuck bearing more than its fair share forever. A defendant who believes someone else is partly to blame has a remedy, but it is a remedy against that other person — not against the injured plaintiff. Massachusetts gives a defendant who has paid more than its proportionate share the right to seek contribution from the other wrongdoers. The point is that the way to make an absent party pay is to bring that party into the case and pursue contribution, not to ask the jury to reduce what the plaintiff can recover by blaming a chair. There is a real, available procedure for a defendant with a genuine grievance about a missing wrongdoer, and the existence of that procedure is part of why the shortcut is unnecessary and disfavored. The empty-chair gesture, without actually joining the absent party, does not accomplish what the defense wants. The gesture may sway a jury emotionally, but it does not change the legal exposure a defendant carries for an indivisible harm it helped cause. That gap between rhetorical force and legal effect is precisely what an injured person’s lawyer has to keep the court focused on.
Fault among the parties, not the absent
The heart of the matter is who the jury is allowed to compare fault among. In Massachusetts, the comparison that reduces a plaintiff’s recovery runs between the plaintiff and the defendants who are actually in the case — not some open-ended cast of everyone who might conceivably have contributed.
How the comparative-negligence rule frames the comparison
Under Massachusetts General Laws chapter 231, section 85, an injured person’s own negligence does not bar recovery so long as it is not greater than the total negligence attributable to the person or persons against whom recovery is sought, though the damages are reduced in proportion to the plaintiff’s share. The statute frames the comparison around the parties from whom recovery is sought — the defendants in the case — and the plaintiff. It does not invite the jury to hand out fault percentages to strangers who were never named. That framing is what keeps the empty chair from doing the work the defense wants it to do. A statute that measures the plaintiff’s fault against the defendants in the case, rather than against the world at large, leaves little room to smuggle an absent person into the calculation. The words the Legislature chose matter here, because they define the universe of people whose fault can reduce a recovery.
What the jury actually decides
Practically, this means the jury’s fault allocation is a division among the people in the courtroom: the plaintiff, if the plaintiff bears any fault, and the defendants who have been sued. A defendant cannot ordinarily reduce its share to the plaintiff by persuading the jury that some unnamed non-party deserves a large slice of the blame, because that non-party is not part of the comparison that governs what the plaintiff recovers. The defendant may of course argue that it was not negligent at all, or that the plaintiff’s own conduct was a cause — those are legitimate defenses — but shifting a percentage onto an absent person to lower the plaintiff’s judgment is a different thing, and it is not how the apportionment works. The jury is asked to sort out the conduct of the people before it, and the verdict form reflects that limited cast rather than an open-ended roster of every possible contributor.
Why this protects the injured person
The effect of all this is to protect the injured person from being penalized for the defense’s failure — or refusal — to bring in everyone who might share responsibility. If a defendant wants the fault of another wrongdoer to count, the burden is on the defendant to join that wrongdoer and litigate the question, not on the plaintiff to chase down and sue every possible contributor. The rule places the risk of an absent tortfeasor on the defendants who could have brought that person into the case, rather than on the victim who was injured through no fault of their own. It rewards the defendant who does the work of joining a co-wrongdoer and litigating fault honestly, while denying any advantage to the defendant who merely gestures at an empty seat. It is a deliberate allocation of risk, and it consistently favors the injured person over the defendant who would prefer to gesture at a chair rather than join a party.
Settled, immune, and unknown wrongdoers
The empty chair is often occupied, in the defense’s telling, by one of three familiar figures: someone who already settled and left the case, someone the law makes immune from suit, or someone who was never identified at all. Each is handled differently.
The tortfeasor who already settled
When one wrongdoer settles with the injured person and is released from the case, Massachusetts law addresses the effect on the remaining defendants through its contribution statute. A settlement and release given in good faith to one of several people liable for the same injury reduces the claim against the others by the amount of the settlement, and it discharges the settling party from any liability for contribution to the others. In other words, the remaining defendant gets a credit for what the plaintiff already received, but it does not get to relitigate the settled party’s share to the jury as a way of cutting the plaintiff’s recovery further. The settling party’s empty chair is accounted for by the settlement dollars, not by a fresh apportionment against the victim. That approach protects the injured person’s bargain: the value of a settlement already reached is credited, but the remaining defendant does not get a second, larger discount by re-arguing the departed party’s share to the jury.
The immune party
Sometimes the person the defense wants to blame cannot be sued at all — an employer shielded by the exclusivity of workers’ compensation, for example, or a party protected by another immunity. A defendant does not get to convert that immunity into a windfall by inviting the jury to load fault onto the immune party and thereby reduce what the plaintiff collects. Because joint and several liability makes each responsible defendant answerable for the whole harm, the presence of an immune non-party in the background does not automatically shrink the plaintiff’s recovery from the defendants who can be sued. The interaction between immunity and contribution can be intricate, and it is one of the places where careful legal analysis matters most. The immune party’s conduct may still be relevant to the story of how the injury happened, but relevance to the narrative is not the same as a license to reduce the plaintiff’s recovery, and the two should not be confused.
The unknown or absent driver
The hardest empty chair is the phantom: the hit-and-run driver, the unidentified contractor, the person who simply cannot be found. A defendant may try to lay the blame on this ghost precisely because the ghost cannot defend itself. But the same principles apply — a defendant who is a substantial cause of an indivisible injury remains responsible for the whole of it, and cannot ordinarily reduce its liability to the plaintiff by attributing fault to an unidentified non-party. For the injured person, other avenues — such as uninsured-motorist coverage when a phantom driver is involved — may also come into play, which is one more reason these situations reward a careful look at every source of recovery. A phantom in the courtroom is still just a phantom under the law, and the defendant who remains before the court cannot hide behind it to escape a harm it helped cause.
Joint and several liability and contribution
Two doctrines do most of the work in defeating the empty-chair defense in Massachusetts: joint and several liability, which governs what the plaintiff can collect, and contribution, which governs how the wrongdoers sort out their shares among themselves.
Joint and several liability: the plaintiff’s protection
Joint and several liability means that when several defendants together cause a single, indivisible harm, the injured person may recover the full amount of the judgment from any one of them, regardless of that defendant’s individual percentage of fault. A defendant found ten percent responsible can still be required to satisfy the entire judgment if the other wrongdoers cannot pay. The doctrine deliberately places the risk of an insolvent, absent, or immune co-wrongdoer on the other defendants rather than on the victim. This is exactly why an empty chair does not reduce what the plaintiff can collect: the defendant in the room remains on the hook for the whole harm. That is the doctrine working exactly as intended, shifting the danger of an uncollectable or unnamed wrongdoer away from the person who was hurt.
Contribution: how defendants share the burden
Contribution is the mechanism that keeps this from being unfair to the defendants. Under Massachusetts General Laws chapter 231B, where two or more persons are jointly liable for the same injury, a defendant who has paid more than its pro rata share can recover the excess from the other wrongdoers. This is the proper home for the fight over relative fault among the responsible parties. It happens between the wrongdoers, after the plaintiff has been made whole, and it does not reduce the plaintiff’s recovery. The defendant’s complaint that someone else should share the blame is real — it just gets resolved in contribution, not by shortchanging the victim. The sequence matters: first the plaintiff is made whole, then the wrongdoers settle accounts among themselves, and the order is not a mere formality but the very thing that protects the recovery.
Why the two doctrines defeat the empty chair
Put together, the two doctrines explain why the empty-chair defense is weaker in Massachusetts than in states that have abolished joint and several liability or that allow fault to be assigned to non-parties. Here, the plaintiff collects the full judgment from the defendants in the case, and those defendants then sort out their relative shares — including any claim against an absent party they choose to pursue — through contribution. The absent party’s fault is a matter for the defendants to litigate among themselves, not a discount on the injured person’s recovery. Framed that way, the empty chair is revealed as a dispute the defendants must have with each other, not a defense they can raise against the victim.
What the empty chair means for your recovery
For an injured person, the practical question is whether a defendant’s attempt to blame someone who is not in the room will shrink the compensation that is available. In Massachusetts, the structure of the law is designed so that it usually does not.
The value of the claim stays intact
Because a responsible defendant can be held answerable for the entire indivisible harm, the empty-chair defense generally does not reduce the pool from which an injured person recovers. Where a crash or other incident involves several potential wrongdoers, the injured person is not forced to prove and collect a separate slice from each; a defendant who caused the harm can be required to pay the full measure of the damages. That includes medical expenses, lost income and earning capacity, and compensation for pain, suffering, and the lasting effects of the injury, especially in serious matters involving catastrophic injuries where the difference between full and partial recovery is life-altering. In those cases the stakes of resisting an empty-chair argument are highest, because a wrongful discount is measured not in small sums but in the resources a badly injured person will need for years to come.
Where the plaintiff still has to be careful
None of this makes the empty chair harmless. A defendant can still argue that the plaintiff’s own conduct was a cause of the harm, and that argument — unlike blaming an absent stranger — can reduce recovery under the comparative-negligence rule. A defendant can also genuinely bring another party into the case, so that the other party’s fault is decided by the jury as a real party rather than as an empty chair. And the rules around settled and immune parties can affect the arithmetic in ways that are easy to get wrong. Recognizing the difference between a legitimate apportionment and an improper empty-chair gambit is part of protecting the value of the claim. A defendant is entitled to test the plaintiff’s proof and to raise the plaintiff’s own conduct; it is not entitled to manufacture a phantom and treat the phantom as a credit against the judgment. Drawing that line clearly, and holding the defense to it, is where much of the real work of these cases is done.
Why the distinction is worth defending
The line between comparing fault among the parties and loading it onto an absent non-party is not a technicality — it can be the difference between a full recovery and a badly discounted one. Keeping the jury’s apportionment focused on the parties who are actually in the case, and insisting that disputes over an absent wrongdoer’s share be resolved through contribution rather than through a reduction of the plaintiff’s judgment, is a meaningful part of preserving what an injured person is owed. It is a line worth defending in every multi-party case, because once it blurs, the door opens to exactly the kind of discount the law was designed to prevent.
Protecting your claim against an empty-chair defense
Answering a defendant who wants to blame an absent person takes a clear grasp of who the jury may compare fault among and where the dispute over a missing wrongdoer actually belongs.
Keeping the apportionment where it belongs
The central task is to hold the fault comparison to the parties who are properly in the case and to insist that any claim about an absent wrongdoer’s responsibility be pursued through contribution among the defendants, not as a discount on the plaintiff’s recovery. That means being ready to explain why joint and several liability keeps a responsible defendant answerable for the whole harm, and why the comparative-negligence statute frames the comparison around the plaintiff and the defendants from whom recovery is sought.
Accounting for settlements and immunities correctly
Where a party has settled or is immune, the arithmetic has to be handled precisely — applying the settlement credit the statute provides, and resisting any attempt to convert an immunity into a reduction of the plaintiff’s recovery. These are the details that decide how much an injured person actually keeps, and they reward careful attention rather than assumption.
When to call a Boston injury lawyer
If a defense is pointing at an empty chair — a driver who fled, a party who settled, an employer said to be immune — the question of whether that tactic can shrink your recovery is worth a careful look. A lawyer can keep the fault comparison focused on the responsible parties, pursue contribution where it belongs, and protect the full value of the claim; the work is handled on contingency, so there is no fee unless there is a recovery. Our Boston personal injury attorneys handle multi-defendant and disputed-fault cases across the Commonwealth and in nearby communities including Quincy and Cambridge, as reflected across our practice areas. If someone is trying to blame an absent party for your injuries, you can reach out to protect what you are owed.
Reviewed and Approved By
This article was reviewed for legal accuracy by Daniel J. Larson, the founding attorney of Larson Law and a Massachusetts-barred personal injury lawyer in Boston. He represents individuals and families harmed by negligence in serious-injury matters arising from motor-vehicle collisions, unsafe property conditions, and other preventable incidents. Attorney Larson works litigation-first, developing each case through detailed investigation, discovery, and expert analysis with the expectation that it may be tried. Before founding the firm, he defended doctors, hospitals, and other healthcare providers in malpractice litigation at a Boston firm — experience that informs how he anticipates the way insurers and defense counsel approach a claim. He is a member of the Massachusetts Bar Association and the Massachusetts Academy of Trial Attorneys.
Frequently asked questions
Can a defendant blame someone who was never sued to lower what I recover?
Usually not in Massachusetts. Because the state keeps joint and several liability, a defendant who is a substantial cause of a single, indivisible injury can be held responsible for the whole of your damages, regardless of its individual percentage of fault. Simply pointing at an absent non-party — the empty chair — does not reduce what you can collect from the defendants who are actually in the case. A defendant who thinks someone else shares the blame has to bring that person in and pursue contribution, rather than asking the jury to shrink your recovery.
Whose fault does the jury actually compare?
Under the comparative-negligence statute, the comparison that affects your recovery runs between you and the defendants from whom recovery is sought. The jury divides fault among the parties in the case — not among unnamed strangers. A defendant can argue it was not negligent, or that your own conduct was a cause, but it generally cannot hand a large slice of fault to an absent person as a way to cut your judgment.
What happens if one wrongdoer already settled?
A good-faith settlement and release given to one of several parties liable for the same injury reduces your claim against the others by the amount of the settlement and discharges the settling party from contribution. The remaining defendant gets a credit for what you already received, but it does not get to relitigate the settled party’s share to the jury as a way of reducing your recovery further.
What if the person to blame is immune, like an employer?
A defendant generally cannot turn another party’s immunity into a reduction of your recovery. Because a responsible defendant remains answerable for the whole harm under joint and several liability, the presence of an immune non-party in the background does not automatically shrink what you can collect from the defendants who can be sued. The interplay between immunity and contribution can be complex and is worth careful analysis.
Is the empty-chair defense ever legitimate?
A defendant is always entitled to argue that it was not negligent, or that your own conduct contributed to the harm, and it can genuinely bring another party into the case so that party’s fault is decided as a real party. What it generally cannot do is reduce your recovery by loading fault onto someone who is not in the courtroom and was never brought in. The line between a legitimate defense and an improper empty-chair gambit is exactly where these disputes are won or lost.
Results Disclaimer: Past case results, settlements, and verdicts mentioned on this website do not guarantee or predict a similar outcome in any future case. Every case is unique and depends on its own facts and legal issues.