Day On Torts

Leading Tennessee Tort Cases - Comparative Fault - Effect of Co-Tortfeasor Committing Intentional Wrong

John Day — Fri, 03 Sep 2010 04:00:00 -0600

This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Tennessee Tort Cases. To order the book go here.

§ 15.16 Effect of Co-Tortfeasor Committing Intentional Wrong

The Case: Limbaugh v. Coffee Medical Center, 59 S.W.3d 73 (Tenn. 2001).

The Basic Facts: Plaintiff, originally acting as the conservator for his mother, filed suit against Defendant medical center and its employee, a nursing assistant, to recover damages for his mother’s injuries when she was assaulted by the nursing assistant.

The Bottom Line:

“The final issue presented for our review is whether the trial court erred in apportioning fault between the negligent and intentional defendants where the intentional conduct was the foreseeable risk created by the negligent nursing home.^FN9 This question is one of first impression and requires us to review our holding in Turner v. Jordan, 957 S.W.2d 815 (Tenn. 1997).

FN9 Interestingly, the issue of Ms. Ray’s immunity from suit for her tortious actions committed as a governmental employee has not been raised in the trial court, the Court of Appeals, or in this Court. Therefore, any claims for Ms. Ray’s immunity made pursuant to Tennessee Code Annotated § 29-20-310(b) (“No claim may be brought against an employee or judgment entered against an employee for damages for which the immunity of the governmental entity is removed by this chapter unless the claim is one for medical malpractice brought against a health care practitioner. . . .”) have been waived.”

59 S.W.3d at 86.

“In Turner, the plaintiff, a hospital nurse, was assaulted and severely injured by Tarry Williams, a mentally ill patient in the hospital where she worked. Dr. Jordan, Williams’s treating psychiatrist, had diagnosed his patient as ‘aggressive, grandiose, intimidating, combative, and dangerous,’ id. at 817 (emphasis omitted), but he nevertheless decided to discharge him from the hospital by ‘allowing him to sign out AMA [Against Medical Advice].’ Id. (alteration in original). After her attack, the plaintiff brought suit against Dr. Jordan, alleging that he violated his duty to use reasonable care in the treatment of his patient, which proximately caused her injuries and resulting damages. After determining that the psychiatrist did indeed owe a duty of care to the plaintiff nurse because he knew or should have known that his patient posed ‘an unreasonable risk of harm to a foreseeable, readily identifiable third person,’ id. at 821, we then held that the ‘conduct of a negligent defendant should not be compared with the intentional conduct of another in determining comparative fault where the intentional conduct is the foreseeable risk created by the negligent tortfeasor.’ Id. at 823.” Id.

“We held the defendant responsible for the entire amount of the plaintiff’s damages for several reasons. First, we determined that the legal conception of ‘fault’ necessarily precluded the allocation of fault between negligent and intentional actors because ‘negligent and intentional torts are different in degree, in kind, and in society’s view of the relative culpability of each act.’ Id.^FN10 Second, we expressed our concern that allowing comparison would reduce the negligent person’s incentive to comply with the applicable duty of care and thus prevent further wrongdoing. Id. Finally, we recognized that when a defendant breaches a duty to prevent the foreseeable risk of harm by a nonparty intentional actor, that negligent co-tortfeasor cannot reduce his or her liability by relying on the foreseeable risk of harm that he or she had a duty to prevent. Id.

FN10 As aptly expressed by the dissenting opinion in a case decided by the Wyoming Supreme Court,

The law of intentional torts constitutes a separate world of legal culpability. It is a system that balances specific rights and obligations, and imposes liability on the basis of a party’s intent, rather than the moral blameworthiness of that party’s conduct by societal standards. The real qualitative distinctions between intentional torts and other forms of culpable conduct share a single origin–the ‘duty’ concept. Intentional torts are dignitary by nature. They are designed to protect one’s right to be free from unpermitted intentional invasions of person or property. Alternatively, the duty underlying an action in negligence or strict products liability is to avoid causing, be it by conduct or by product, an unreasonable risk of harm to others within the range of proximate cause foreseeability. These distinct worlds of culpability cannot be reconciled.

Mills v. Reynolds, 807 P.2d 383, 403 (Wyo. 1991) (Urbigkit, C.J., dissenting).”

Id. at 86-87.

“The present case presents a different factual setting. Unlike Turner, the plaintiff here has brought a cause of action against all tortfeasors whose unreasonable acts have contributed to the elderly resident’s injuries. Consequently, we are required to determine how to assign causal responsibility between negligent and intentionally tortious defendants where the intentional misconduct is the foreseeable risk created by the negligent defendant. We continue to adhere to the principle established in Turner that the conduct of a negligent defendant should not be compared with the intentional conduct of a nonparty tortfeasor in apportioning fault where the intentional conduct is the foreseeable risk created by the negligent tortfeasor. Id.; see also White v. Lawrence, 975 S.W.2d 525, 531 (Tenn. 1998) (holding that the defendant physician’s liability would not be reduced by comparing his negligent conduct with the decedent’s intentional act of committing suicide since the intentional act was a foreseeable risk created by the defendant’s negligence). After careful consideration, we conclude that where the intentional actor and the negligent actor are both named defendants and each are found to be responsible for the plaintiff’s injuries, then each defendant will be jointly and severally responsible for the plaintiff’s total damages. See generally [Restatement (Third) of Torts] § 24 (1999). Therefore, both CMC and Ms. Ray are each liable for all of the plaintiff’s damages.^FN11

FN11 Although statutory principles of contribution and indemnity apply, there is ‘no right of contribution in favor of any tort-feasor who has intentionally caused or contributed to the injury.’ Tenn. Code Ann. § 29-11-102(c).”

Id. at 87.

“Although our adoption of comparative fault abrogated the use of the doctrine of joint and several liability in those cases where the defendants are charged with separate, independent acts of negligence, see McIntyre v. Balentine, 833 S.W.2d 52, 58 (Tenn. 1992), the doctrine continues to be an integral part of the law in certain limited instances. See Owens v. Truckstops of Am., 915 S.W.2d 420, 431 n.13, 432 (applying joint and several liability to parties in the chain of distribution of a product when the theory of recovery is strict liability); see also Resolution Trust Corp. v. Block, 924 S.W.2d 354, 355-56 (Tenn. 1996) (holding the officer and director jointly and severally liable to the corporation for their collective actions). We believe that in the context of a negligent defendant failing to prevent foreseeable intentional conduct, the joint liability rule ‘is a very reasonable and just rule of law which compels each to assume and bear the responsibility of the misconduct of all.’ Resolution Trust Corp., 924 S.W.2d at 356. Consequently, we reverse the trial court’s apportionment of fault and hold that CMC and Louise Ray are jointly and severally liable for the full amount of damages awarded to Mr. Limbaugh. However, because the trial court incorrectly apportioned damages between the two tortfeasors, we remand this case to the Circuit Court for Coffee County to determine the total amount of damages for which each tortfeasor shall be jointly and severally liable.” Id. at 87-88.

Recent Cases: Dean v. Weakley County Bd. of Educ., No. W2007-00159-COA-R3-CV, 2008 WL 948882 (Tenn. Ct. App. Apr. 9, 2008) (holding public duty doctrine did not apply to school because school’s duty was not to public at large; rather, schools have a duty to exercise reasonable care to supervise and protect students from injury, including the intentional acts of third parties).

Medicare Reporting as of October 1, 2010

John Day — Thu, 02 Sep 2010 02:07:22 -0600

The Garretson Firm Resolution Group has issued this report on the status of reporting personal injury and wrongful death claims and the need for the utilization of medical set asides.

The bottom line: starting October 1, 2010 insurers will be required to gather certain information about claimants asserting personal injury and wrongful death claims and share that information with Medicare. More importantly, there is no rule going into effect that requires parties who settle liability claims to calculate a “set aside” amount that the injured claimant must spend on injury-related care before Medicare picks up the tab again.

Here is the Garretson Firm's recommendations for claimant's counsel:

Medicare’s role in settlements is undeniably evolving. As most claimants’ attorneys already understand, formal procedures must be implemented in their practice, and they cannot wait to receive a notice of a potential claim from CMS before taking action. The agency is not required to give notice, so lawyers must proactively identify, verify, and satisfy Medicare’s interests before distributing any settlement proceeds.

For those practitioners who have not yet created solid internal protocols, this new law places greater importance on making sure that an appropriate Medicare verification and resolution strategy is fully integrated into their practice. The tenets to such a successful strategy would include protocols for getting started early, enhanced client intake information, client education modules and, for complex cases, perhaps changes in retainer agreements that allow the attorney to seek outside assistance to handle lien verification and resolution.

Leading Tennessee Tort Cases - Comparative Fault - Effect of Concerted Action

John Day — Wed, 01 Sep 2010 04:00:00 -0600

This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Tennessee Tort Cases. To order the book go here.

§ 15.15 Effect of Concerted Action

The Case: Resolution Trust Corp. v. Block, 924 S.W.2d 354 (Tenn. 1996).

The Basic Facts: Plaintiff, conservator and then receiver for a savings and loan association, brought suit against former officers of the savings and loan association for breach of fiduciary duty, negligence per se and breach of contract after Defendants approved several loans made by the corporation.

The Bottom Line:

“In an action for damages on behalf of a corporation against its officers and directors who are found to be liable for their collective breach of fiduciary duty and contract and for negligence, the liability of the officers and directors to the corporation is joint and several, not proportional to fault.” 924 S.W.2d at 355.

“Even those commentators who have advocated the abolition of joint and several liability as a corollary to the adoption of comparative fault have acknowledged the need for retaining its application to collective or concerted actions. See C. Mutter, [Moving to Comparative Negligence in an Era of Tort Reform: Decisions for Tennessee, 57 Tenn. L. Rev., 199, 305 (1990)] (hereafter 57 Tenn. L. Rev. at § ____); [Prosser and Keeton on Torts], § 52 (W. Page Keeton ed.) (5th ed. 1984); 19 C.J.S. “Corporations,” § 484 (1990). For example, in an article published before our decision in McIntyre, Professor Mutter advocated the adoption of a comparative fault system in Tennessee. While noting that ‘comparative negligence and joint and several liability do not mesh,’ 57 Tenn. L. Rev. at 318-19, she added the following:

In order to understand joint and several liability it is necessary to advert to some of the general principles applicable to joint tortfeasors. Initially at common law, a ‘joint tort’ was limited to actual concerted action. Thus, all individuals, who with a common purpose, committed a tort against the plaintiff were liable for the entire damage done, ‘although one might have battered, while another imprisoned the plaintiff, and a third stole the plaintiff’s silver buttons.’ Only a tacit understanding, not an express agreement was necessary. Liability for concerted action continues to be joint and several today, and in general opponents of the rule have no quarrel with its application in this context.

Id. at 305 (emphasis added) (citations omitted).” Id. at 357.

“Under either the historic or modern approach, the result is the same. In an action for damages by or on behalf of a corporation against the officers and directors of the corporation in which the officers and directors are found to be liable as the result of their collective breach of fiduciary duty, negligence, or breach of contract, the liability of the defendants to the corporation is joint and several.” Id.

Pattern Jury Instructions

John Day — Tue, 31 Aug 2010 02:33:44 -0600

Tennessee has pattern jury instructions for civil and criminal cases, but our federal judicial circuit only has pattern instructions for criminal cases.

Here is a list of the federal circuits that have pattern jury instructions in civil and criminal cases, as well as a link to those instructions.

The Tennessee civil instructions are for sale for an outrageous price - $283. If you need to purchase them, go here. If you need financial assistance to buy this book (which is updated every year with the publication of a new book, not a pocket part that can be inserted into the back of the old one) learn more here.

And, by the way and despite the representation in the Thomson Reuters ad, the book is sold in soft cover.

New Rule Change - Service By Email

John Day — Mon, 30 Aug 2010 02:10:32 -0600

Rule 5 of the Tennessee Rules of Civil Procedure was amended to permit papers to be served on attorneys of parties via electronic mail. Here the language added to Rule 5 to accomplish that result:

(2)(a) Service upon any attorney may also be made by sending him or her the document in Adobe PDF format to the attorney's email address, which shall be promptly furnished on request. The sender shall include language in the subject line designed to alert the recipient that a document is being served under this rule. On the date that a document served under this rule is electronically sent to an attorney, the sender shall send by mail, facsimile or hand-delivery a certificate that advises that a document has been transmitted electronically. The certificate shall state the caption of the action; the trial court file number; the title of the transmitted document; the number of pages of the transmitted document (including all exhibits thereto); the sender's name, address, telephone number and electronic mail address; the electronic mail address of each recipient; and the date and time of the transmission. The certificate shall also include words to this effect: "If you did not receive this document, please contact the sender immediately to receive an electronic or physical copy of this document." The certificate shall be sent to all counsel of record.

(b) An attorney who sends a document to another attorney electronically and who is notified that it was not received must promptly furnish a copy of the document to the attorney who did not receive it.

(c) A document transmitted electronically shall be treated as a document that was mailed for purposes of computation of time under Rule 6.

(d) For good cause shown, an attorney may obtain a court order prohibiting service of documents on that attorney by electronic mail and requiring that all documents be served under subsection (1).

To be sure, the method of serving papers electronically is more cumbersome that the method used under the Federal Rules of Civil Procedure. However, the Rules Commission was concerned that many lawyers did not have confidence in service by email and thus adopted a "belt and suspenders approach" that required the contemporaneous mailing of a notice of service.

I suspect that the mailed-notice requirement will be dissolved in five years or less.

Tennessee Trial Law Report - Tort Law Edition

John Day — Sun, 29 Aug 2010 02:41:00 -0600

Have you subscribed to the Tennessee Trial Law Report - Tort Law Edition? Each month Brandon Bass and I summarize the recent Tennessee appellate decisions in the field of tort,civil procedure, evidence and trial law and publish those summaries in the TTLR. Importantly, we do not just regurgitate the opinion - we summarize it and give our opinion of whether the decision is consistent or inconsistent with prior law and the public policy of Tennessee.

The newsletter also includes an article by me on some aspect of the law of civil trial in Tennessee. Next month's edition includes Part 4 of my series on the law of the use of depositions at trial.

Finally, the newsletter includes a list of all cases pending before the Tennessee Supreme Court that are of interest to tort lawyers, indicating the status of those cases before the court (as best we can tell from public data).

Earlier this year we changed the newsletter to an electronic format and deliver it to our subscribers in a color, PDF format at the beginning of each month. The format allows us to link to the actual opinions and rules for the convenience of our readers. It has also permitted us to drop the price substantially - the newsletter is only $149 per year (no sales tax) plus $49 for each additional lawyer in your firm.

Hundreds of lawyers and judges in Tennessee subscribe to this newsletter in an effort to stay current with ever-changing tort law.

You can receive a free sample of the September edition by emailing Kori Conner at kconner@dayblair.com. You can subscribe here.

An Example of Why Texting While Driving is a Bad Idea

John Day — Sat, 28 Aug 2010 02:20:41 -0600

ABC News reports that Dr. Frank Ryan, the surgeon who performed extensive plastic surgery early this year on Heidi Montag, was sending a Twitter message about his dog before his fatal car crash Monday in Los Angeles. The dog, who was in the car at the time of the crash, survived injuries to the head, eye and paw. Dr. Ryan died of blunt force head injuries.

Leading Tennessee Tort Cases - Comparative Fault - Duty of Defendant to Allege Causative Acts or Omissions of Another

John Day — Fri, 27 Aug 2010 04:00:00 -0600

This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Cases in Tennessee Tort Law. To order the book go here.

§ 15.14 Duty of Defendant to Allege Causative Acts or Omissions of Another

The Case: George v. Alexander, 931 S.W.2d 517 (Tenn. 1996).

The Basic Facts: Plaintiff’s leg was injured after undergoing surgery which required administering spinal anesthesia beforehand. Plaintiff subsequently brought a malpractice action against two anesthesiologists who treated Plaintiff before surgery.

The Bottom Line:

“This case presents the following issue for our determination: whether a defendant in a negligence case must, pursuant to Rule 8.03 of the Tennessee Rules of Civil Procedure, plead comparative fault as an affirmative defense if the defendant wishes to introduce evidence that a person other than itself caused the plaintiff’s injury. We conclude that the defendant is required to affirmatively plead comparative fault in such a situation; and because that was not done in this case, we reverse the judgment of the Court of Appeals.” 931 S.W.2d at 517.

“[T]he defendants argue that Rule 8.03 is triggered only when the defendant seeks to show that another person was legally at fault for the plaintiff's injuries. Because negligence, the type of legal fault at issue here, requires proof of the elements of duty, breach of duty, causation in fact, proximate causation and injury, McClenahan v. Cooley, 806 S.W.2d 767, 774 (Tenn.1991), the defendants contend that Rule 8.03 does not apply unless they attempted to prove that Dr. Daniell’s conduct satisfied all these elements.” Id. at 520.

“[T]he defendants’ position ignores the fact that ‘blame-shifting’ in a negligence context actually has to do with the element of causation in fact. Once the defendant introduces evidence that another person’s conduct fits this element, it has effectively shifted the blame to that person. Therefore, if the defendants’ position were to be accepted, any defendant wishing to transfer blame to another person at trial could always maintain that it is not trying to show that the other’s conduct satisfies the legal definition of negligence, but that it is merely trying to establish that the other person’s conduct actually caused the injury. In the latter situation, however, the defendant has fully accomplished what Rule 8.03 was intended to prevent: it has effectively shifted the blame to another person without giving the plaintiff notice of its intent to do so. Therefore, the purpose of Rule 8.03 would be undermined to a substantial degree if the defendants’ overly technical argument were to prevail.” Id. at 521.

“One final argument advanced by the defendants remains to be addressed. They argue that the purpose of Rule 8.03 was not violated in this case because the plaintiff was clearly aware of the possibility that Dr. Daniell had caused the injury. The defendants point out that the plaintiff’s counsel actually elicited the quoted testimony from Dr. Allen; they also contend that the plaintiff’s counsel met with Dr. Daniell well before trial to discuss whether he should be included in the suit. The defendants conclude that, because the plaintiff knew all the facts regarding Dr. Daniell’s involvement, and had the opportunity to include him in the suit but simply chose not to do so, their failure to raise comparative fault as an affirmative defense did not prejudice the plaintiff.” Id. at 522.

“We decline to accept this “harmless error” argument. Rule 8.03 is a prophylactic rule of procedure that must be strictly adhered to if it is to achieve its purposes. It is designed to obviate the need for appellate courts to look into the record for actual prejudice each time a defendant introduces proof at trial of an unpleaded defense. To accept the defendants' argument on this point would invite evasion of a clearly-stated rule of procedure that is crucial to the equitable and efficient administration of a comparative fault system.” Id. at 527.

“(CONCURRING OPINION BY REID, J.) Consequently, where the defendant does not plead comparative fault, it will be held liable for 100 percent of the plaintiff’s damages unless it is absolved of all liability. In other words, where a sole defendant does not plead comparative fault, there will be no apportioning of liability for damages even though the defendant may have been only partially at fault. Evidence which tends to establish the plaintiff or a non-party as a tortfeasor responsible for the damages alleged is not admissible unless the defendant has pled comparative fault as an affirmative defense.” Id.

New Jersey Spoliation Opinion

John Day — Thu, 26 Aug 2010 02:59:04 -0600

New Jersey has a well-developed body of case law on the issue of spoliation of evidence. Tartaglia v. UBS PaineWebber, Inc., 961 A.2d 1167 (N.J. 2008) sets forth the history of the development of the law in the state.

On August 3, 2010 the Supreme Court of New Jersey issued yet another opinion in the area, this time in the context of construction litigation. In Robertet Flavors, Inc. v. Tri-Form Const., Inc., 2010 WL 3022121 (N.J. Aug. 3, 2010), the court wrestled with the issue of what factors to consider when determining what sanction should be imposed for spoliation of evidence in construction litigation. After surveying the law from across the country, the court adopted this test:

[C]ourts confronted with spoliation in the context of commercial construction litigation should recognize that a variety of factors bear on the appropriate remedy. In particular, courts should consider all of the following: the identity of the spoliator; the manner in which the spoliation occurred, including the reason for and timing of its occurrence; the prejudice to the non-spoliating party, including whether the non-spoliating party bears any responsibility for the loss of the spoliated evidence; and the alternate sources of information that are, or are likely to be, available to the non-spoliator from its own records and personnel, from contemporaneous documentation or recordings made by or on behalf of the spoliator, and from others as a result of the usual and customary business practices in the construction industry. Courts should then balance all of those considerations in crafting the appropriate remedy with an appreciation for the ways in which the construction industry itself provides them with unique tools with which to “level the playing field” and achieve an appropriate remedy for spoliation.

The court went on to explain that

In the construction litigation context, it will often be the case that a sanction for spoliation other than dismissal will achieve our traditional goals, which are “to make [the non-spoliating party] whole, as nearly as possible, ... to punish the wrongdoer; and to deter others from such conduct.” Identifying the appropriate sanction, however, entails utilizing all of the means at the court's disposal to effect a just result. Those means include, of course, all of the remedies that we have traditionally recognized, but they are not limited to adverse inferences, bifurcated proceedings, preclusion of evidence, and dismissal. Instead, they might also include, as here, limitation of claims to only those that can be tried fairly, with dismissal of others, or an award of costs caused by the spoliation, if the costs can be quantified and assessed against the offending party. (Citation omitted.)

Of course, the court made it clear that this opinion applied only to commercial construction litigation. However, every tort lawyer researching the issue of spoliation in a tort case would learn a lot about the issue by reading this opinion.

Leading Tennesse Tort Cases - Comparative Fault - Bifurcated Fault Allocations

John Day — Wed, 25 Aug 2010 04:00:00 -0600

This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Cases in Tennessee Tort Law. To order the book go here.

§ 15.13 Bifurcated Fault Allocations

The Case: Grandstaff v. Hawks, 36 S.W.3d 482 (Tenn. 2000).

The Basic Facts: Multi-car wreck resulted in multiple claims, including both drivers suing each other.

The Bottom Line:

“McIntyre v. Balentine was a typical two-party motor vehicle collision case. One driver sued the other driver for negligence, and the other driver denied that he was negligent and asserted that the plaintiff driver was contributorially negligent. The jury returned a verdict for the defendant after hearing evidence that both drivers had been drinking and that the plaintiff driver had been speeding. The Tennessee Supreme Court vacated the judgment and remanded the case for another trial based on its newly minted comparative fault principles. To assist the parties, the Court provided suggested jury instructions and a suggested verdict form suitable for two-party litigation only. See McIntyre v. Balentine, 833 S.W.2d at 59-60. The Court also invited the Committee on Civil Pattern Jury Instructions to promulgate new standard jury instructions and pointed out that modifications to its two-party instructions would be required for ‘more complex litigation.’ See McIntyre v. Balentine, 833 S.W.2d at 58, 59.” 36 S.W.3dat 490.

“The Committee on Civil Pattern Jury Instructions responded to the Tennessee Supreme Court’s invitation by issuing proposed instructions and verdict forms intended to replace the suggested instructions and forms appended to McIntyre v. Balentine. See 8 Committee on Civil Pattern Jury Instructions, Tennessee Pattern Jury Instructions T.P.I. 3-Civil 3.01 - 3.63 (3d ed. 1997) (“T.P.I. 3-Civil”). In addition to a two-party verdict form, see T.P.I. 3-Civil 3.59, the Committee also prepared a verdict form applicable to two-vehicle collision cases involving two drivers and two passengers. See T.P.I. 3-Civil 3.61. We have determined that this instruction is not satisfactory because it fails to differentiate between a passenger’s fault that was a cause of the collision and a passenger’s fault that only contributed to the passenger’s injuries.” Id. at 491.

“The Wisconsin Supreme Court has addressed this matter by distinguishing between the ‘active’ and ‘passive’ negligence of the passenger. Passive negligence contributes to the passenger’s injuries but, unlike active negligence, is not a cause of the collision itself. The passenger’s passive negligence is ‘immaterial with respect to the right of one driver to recover from the other.’ McConville v. State Farm Mut. Auto. Ins. Co., 113 N.W.2d 14, 20 (Wis. 1962). Therefore, the jury may only compare the passenger’s active negligence, that is the passenger’s negligence that was a cause of the collision itself, with the negligence of the drivers. Then, it must separately consider the passenger’s passive negligence, if any, to reduce the plaintiff’s recovery.” Id. at 493-94.

“Fairness, consistency, and efficiency are the hallmarks of the Tennessee Supreme Court’s comparative fault scheme. Clearly linking liability with fault accomplishes these ends. See Owens v. Truckstops of Am., 915 S.W.2d at 428; McIntyre v. Balentine, 833 S.W.2d at 58. We find that the Wisconsin model creates a strong correlation between liability and fault and, accordingly, adopt a similar approach. In multi-party actions such as this one, the trial court should instruct the jury to engage in the following three-step process:

1. First, as in any comparative fault case, the jury should determine the actual dollar amount of the damages incurred by each claimant FN19 individually without taking fault into consideration.FN20

2. Second, the jury should allocate percentages of fault (totaling 100%) to each actor FN21 whose fault caused or contributed to the collision.FN22

3. Third, the jury should state the percentage by which the claimant’s conduct caused or contributed to his or her own injuries along with the percentage of fault collectively attributable to the actor or actors whose fault was the cause of the collision.

FN20 See T.P.I. 3-Civil 3.61.

FN21 In certain circumstances, the term ‘actor’ may include a non-party. If the defendant alleges that a non-party contributed to the plaintiff’s injuries, the fact-finder may apportion fault to parties and nonparties, see McIntyre v. Balentine, 833 S.W.2d at 58, but only to persons against whom the plaintiff has a cause of action. See Samuelson v. McMurtry, 962 S.W.2d 473, 475 (Tenn. 1998); Owens v. Truckstops of Am., 915 S.W.2d at 428; Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 83 (Tenn. 1996). The plaintiff bears the risk of failure to join potentially liable tortfeasors against whom the plaintiff has a cause of action. See Samuelson v. McMurtry, 962 S.W.2d at 475; Ridings v. Ralph M. Parsons Co., 914 S.W.2d at 83. A defendant who fails to identify potentially liable tortfeasors who are not already parties pursuant to Tenn. Code Ann. § 20 1 119(a) (Supp. 1999), cannot attribute fault to these non-parties. See Samuelson v. McMurtry, 962 S.W.2d at 475; Ridings v. Ralph M. Parsons Co., 914 S.W.2d at 84.

FN22 The shortcoming of T.P.I. 3-Civil 3.61 is that it does not differentiate between fault that caused the collision and fault that contributed to the passenger’s injuries. It assumes that the actions or inactions of the passengers were a cause of the collision. While it is possible for passengers to be at fault for a collision, it is also possible that their fault, if any, only contributed to their own injuries.”

Id. at 495.

“Attached as an appendix to this opinion is a sample verdict form prepared in conformance with this opinion. Once the jury returns its verdict in this or a similar form, the trial court should then calculate the dollar amount of the damages recoverable by each claimant. To avoid error, these calculations should not be left to the jury.” Id.

“In light of our analysis of the significant difference between fault that contributes to causing a collision and fault that contributes only to the claimant’s injuries, we find that the trial court’s instructions in this case were erroneous. However, under the facts of this case, we find that the error more probably than not did not affect the verdict and the judgment from which State Farm appeals and did not result in prejudice to the judicial process.” Id.

APPENDIX
MULTI-PARTY JURY VERDICT FORM

1. Without considering fault, what total of damages do you find was sustained by each of the parties making a claim:

Name of claimant $________________

2. What percentage of fault do you attribute to each person whose conduct caused or contributed to the collision (these persons may include non-parties properly named by the defendants). Your answers must total 100%.

Name of person (0-100%)

Total 100%

3. State the percentage by which the negligence of each claimant named in paragraph 1 caused or contributed to the claimant’s own injuries (as opposed to the collision):

Name of claimant (0-100%)
Name of claimant (0-100%)
Name of claimant (0-100%)

Name of claimant (0-100%)

Id. at 500.

Recent Cases: Mullins v. State, No. E2007-01113-COA-R9-CV, 2008 WL 199854 (Tenn. Ct. App. Jan. 24, 2008) (holding plaintiff was not collaterally estopped from pursuing claim against the State in the Claims Commission where a federal court jury in a separate federal court action against other defendants found no fault on part of State-employed doctor on verdict form because the issue of that doctor’s fault was not actually litigated in federal court action nor did the plaintiff have full and fair opportunity in federal court action to litigate the fault of the State-employed doctor).

Leading Tennessee Tort Cases - Comparative Fault - Applicability to Nuisance

John Day — Fri, 20 Aug 2010 04:00:00 -0600

This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Cases in Tennessee Tort Law. To order the book go here.

§ 15.12 Applicability to Nuisance

The Case: Manis v. Gibson, No. E2005-00007-COA-R3-CV,2006 WL 521466 (Tenn. Ct. App. Mar. 3, 2006).

The Basic Facts: Plaintiff brought a nuisance claim alleging that a road built by defendant affected the water drainage across Plaintiff’s land. Defendant asked the Court to apply comparative fault.

The Bottom Line:

“In this regard, we have observed: ‘[O]ne who interferes with the natural current of a stream is responsible absolutely, and without any question of negligence, for damages thereby caused to one who is entitled to have the water flowing in its natural state.’ Tenn. Elec. Power Co. V. Robinson, [1928 WL 2125, at *2 (Tenn. Ct. App. July 13, 1928)]. It is well settled that ‘a wrongful interference with the natural drainage of surface water causing injury to an adjoining landowner constitutes an actionable nuisance.’” Zollinger v. Carter, 837 S.W.2d 613, 615 (Tenn. Ct. App. 1992) (quoting Butts v. City of South Fulton, 565 S.W.2d 879, 881 (Tenn. Ct. App. 1977)). Prior to Tennessee’s adoption of comparative fault, ordinary contributory negligence was not a defense to a nuisance action based upon absolute liability, but the plaintiff’s gross negligence could act as a defense based upon ‘the principle of acceptance of the risk of a known danger.’ Llewellyn v. City of Knoxville, 232 S.W.2d 568, 576 (Tenn. Ct. App. 1950).” 2006 WL 521466 at *4.

“In the seminal case abandoning the common-law doctrine of contributory negligence, and adopting comparative fault, the Supreme Court McIntyre v. Balentine, 833 S.W.2d 52, 56 (Tenn. 1992), said: ‘so long as a plaintiff’s negligence remains less than the defendant’s negligence the plaintiff may recover; in such a case, plaintiff’s damages are to be reduced in proportion to the percentage of the total negligence attributable to the plaintiff.’ Id. at 57. However, the Court went on to emphasize the concept of fault over the concept of negligence by making clear that Tennessee’s tort system is ‘fault-based’ and the ‘49 percent rule’ is ‘compatible with a fault-based tort system.’ Id. The Court described this rule as ‘more closely linking liability and fault.’ Id. at 58.” Id.

“With more emphasis on fault than negligence the McIntyre Court compared fault rather than limit the system to comparisons of negligence. Fault embraces a broader class of conduct than does negligence. “Negligence implies a breach of a duty of care, while fault refers merely to an act imposing liability.” McKinnie v. Lundell Mfg. Co., 825 F. Supp. 834, 839 (W.D. Tenn 1993) (applying Tennessee law). Therefore, “[t]he comparative fault system’s focus on the parties’ relative `fault’ avoids the `apples and oranges’ argument,” which asserts that a plaintiff’s negligent conduct cannot be compared to a defendant’s non-negligent, though still tortious, conduct. Id.” Id.

“In Whitehead v. Toyota Motor Corp., 897 S.W.2d 684 (Tenn. 1995), the Tennessee Supreme Court confirmed its intention to compare fault, rather than only negligence, when it applied comparative fault principles to strict products liability. Id. at 693. The Whitehead Court noted that pre-McIntyre case law recognized that ‘the concept of fault is inherent in the doctrine of strict products liability.’ Id. at 688. This was true despite the fact that strict products liability could be imposed without proof of the manufacturer’s negligence. Id. The Court further reasoned that because ‘[t]he conduct that leads to strict products liability involves fault, as the word ‘fault’ is commonly understood,’ applying comparative fault principles in strict products liability actions was, ‘[i]n keeping with [McIntyre’s] principle of linking liability with fault.’ Id. at 693.” Id. at *5.

“The Whitehead Court’s treatment of strict products liability is instructive because such liability is analogous to the absolute liability imposed for interference with the natural drainage of surface water. Compare Ellithorpe v. Ford Motor Co., 503 S.W.2d 516, 522 (Tenn. 1973) (discussing strict products liability) with Tenn. Elec. Power Co., [1928 WL 2125, at *2 (Tenn. Ct. App. July 13, 1928) (discussing interference with natural drainage).” Id.

“A nuisance action based upon interference with the natural drainage of surface water is actionable only if the interference is ‘wrongful’ and causes injury to an adjoining land owner. Zollinger. Talley v. Baker, [1926 WL 2057, at *2-3 (Tenn. Ct. App. May 22, 1926)]; Gregory v. Jenkins, 665 S.W.2d 397, 399 (Tenn. Ct. App. 1983); Blackwell v. Butler, 582 S.W.2d 760, 764 (Tenn. Ct. App. 1978). Thus, a nuisance action based upon a ‘wrongful’ interference with the natural drainage of surface water necessarily involves fault because such an interference is an act violating the plaintiff’s property rights and imposing liability upon the defendant. Because such an action necessarily involves fault, applying principles of comparative fault is in keeping with McIntyre’s principle of linking liability with fault. We affirm the Trial Judge’s applying the principles of comparative fault to this case.” Id.

Leading Tennessee Tort Cases - Comparative Fault - Applicability to Fraud

John Day — Wed, 18 Aug 2010 04:00:00 -0600

This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Cases in Tennessee Tort Law. To order the book go here.

§ 15.11 Applicability to Fraud

The Case: Edwards v. Bruce, C.A. No. 01A01-9510-CH-00458, 1996 WL 383294 (Tenn. App. July 10, 1996).

The Basic Facts: Plaintiff brought various claims arising from a real estate transaction. The claims included fraud.

The Bottom Line:

“The defendants next assert that the trial court erred in failing to apply comparative negligence to this case. They argue that the fault of the Bruces in making the representations should have been reduced by the fault of the Edwardses in negligently relying upon the representations. The defendants are essentially arguing that the fault attributable to an intentional tortfeasor should be reduced by the fault attributable to a negligent tortfeasor. We do not agree.” 1996 WL 383294 at *16.

“In Turner v. Jordan, [No. 01-A-01-9411-CV-00544, 1995 WL 512957 (Tenn. Ct. App. Aug. 30, 1995)] this Court allowed a negligent tortfeasor to reduce his liability by the percentage of fault attributable to an intentional tortfeasor. However, this Court stated that an intentional tortfeasor should not be allowed to reduce his or her liability by the percentage of fault attributable to a negligent tortfeasor. This Court stated:

Plaintiffs interpret the comparison rule to allow intentional tortfeasors to use the conduct of negligent tortfeasors to reduce their liability. Such an interpretation does not seem well founded. The present case concerns an injured party attempting to transfer an intentional tortfeasor’s responsibility to a negligent tortfeasor, not an intentional tortfeasor attempting to transfer some of his own responsibility to a negligent tortfeasor … As noted by plaintiffs, intentional tortfeasors in Tennessee have always been held fully responsible for the injuries they cause. The contributory negligence of a plaintiff has never been a defense to an intentional assault in Tennessee. See State v. Dunn, [282 S.W.2d 203, 213 (Tenn. Ct. App. 1943)]. Consequently, the comparison approach stands for the proposition that a negligent tortfeasor may reduce his liability by comparing his fault to that of an intentional tortfeasor, not that an intentional tortfeasor may reduce his liability by comparing his fault to that of a negligent tortfeasor. Id. at *9.” Id. at *16-17.

“Since we have determined that the Bruces are guilty of fraudulent misrepresentation rather than negligent misrepresentation, the Bruces may not reduce their liability for the Edwardses damages by the percentage of fault attributable to the Edwardses in relying upon the representations. This issue is without merit.” Id. at *17.

Other Sources of Note: McRae v. Hagaman, No. E2004-00852-COA-R3-CV, 2004 WL 2378109 (Tenn. Ct. App. Oct. 25, 2004) (re-affirming holding in Edwards that comparative fault not applicable to fraud).

Judge Calls Down Lawyers For Deposition Misconduct

John Day — Mon, 16 Aug 2010 03:04:15 -0600

All lawyers know that judges don't like discovery disputes, and some lawyers take advantage of that by violating the rules at depositions.

United States Magistrate Peggy A. Leen entered this Order when confronted with lawyers who ignored the rules. An excerpt:

The exchanges related in excruciating, repetitive detail in the moving and responsive papers and their attachments were painful to read. If I was an elementary school teacher instead of a judge I would require both counsel to write the following clearly established legal rules on a blackboard 500 times:

I will not make speaking, coaching, suggestive objections which violate Rule 30(c)(2). I am an experienced lawyer and know that objections must be concise, non-argumentative and non-suggestive. I understand that the purpose of a deposition is to find out what the witness thinks, saw, heard or did. I know that lawyers are not supposed to coach or change the witness’s own words to form a legally convenient record. I know I am prohibited from frustrating or impeding the fair examination of a deponent during the deposition. I know that constant objections and unnecessary remarks are unwarranted and frustrate opposing counsel’s right to fair examination. I know that speaking objections such as "if you remember," "if you know," "don’t guess," "you’ve answered the question," and "do you understand the question" are designed to coach the witness and are improper. I also know that counsel’s interjection that he or she does not understand the question is not a proper objection, and that if a witness needs clarification of a question, the witness may ask for the clarification.

Although these papers, and the conduct they relate, make me feel like a school marm scolding little boys, I am the judge whose duty it is to decide this motion. Accordingly, Mr. Kossack and Mr. Cannon are admonished for engaging in conduct which I know you know violates Rule 30(c)(2). You are better men and better lawyers than the conduct in which you have engaged illustrates.

A fine arrow for the trial lawyer's quiver. Thanks to Trial Ad Notes for advising me about the opinion.

Leading Tennessee Tort Cases - Comparative Fault - Applicability to Breach of Implied Warranty Cases

John Day — Fri, 13 Aug 2010 04:00:00 -0600

This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Cases in Tennessee Tort Law. To order the book go here.

§ 15.10 Applicability to Breach of Implied Warranty Cases

The Case: Owens v. Truckstops of America v. B. Michael Design. Inc, 915 S.W.2d 420 (Tenn. 1996).

The Basic Facts: Plaintiff brought a negligence claim against a restaurant after a stool he was sitting in broke, causing him to fall. The restaurant then brought a third-party complaint against the manufacturer and seller of the stool for contribution and indemnity based on negligence, strict liability and implied warranty of merchantability.

The Bottom Line:

“The conclusion is that, on the charge of breach of implied warranty of merchantability, a plaintiff’s claim for damages and the apportionment of those damages among tortfeasors in a comparative fault case, and among the first-party and third-party defendants in this case, will be determined according to the principles of comparative fault hereinabove discussed.” 915 S.W.2d at 434.

Leading Tennessee Tort Cases - Comparative Fault - Allocation of Fault to an Unknown Party in Motor Vehicle Case

John Day — Wed, 11 Aug 2010 04:00:00 -0600

This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Cases in Tennessee Tort Law. To order the book go here.

§ 15.9 Allocation of Fault to an Unknown Party in a Motor Vehicle Case

The Case: Breeding v. Edwards, 62 S.W.3d 170 (Tenn. Ct. App. 2001).

The Basic Facts: Defendant in automobile accident case blamed a “John Doe.” Plaintiff sued “John Doe” and served Plaintiff’s uninsured motorist carrier. The uninsured motorist carrier sought dismissal of the complaint, relying on Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn. 2000).

The Bottom Line:

“In the instant case, Farmers argues that because the driver whose alleged negligence is the predicate for the plaintiff’s UM claim cannot be identified sufficiently to allow Breeding to plead and serve process upon that driver, no fault may be attributed to the unknown driver, and hence the UM carrier has no liability under the holding in Brown.”62 S.W.3d at 173-74.

“We disagree for two basic reasons. First, we find nothing in the language of Brown to suggest the Supreme Court intended that its holding there would apply to a negligence case involving an unknown motorist where the UM coverage is otherwise implicated, even if the existence of the unknown motorist and the latter’s fault are first asserted in a response filed by an already-sued defendant.^FN3 In general terms, Brown prevents a defendant from ‘putting off’ fault on an unknown tortfeasor, in those situations where it is the defendant who first raises the fault of the unknown tortfeasor. Brown does not expressly address whether a plaintiff can attempt to assign fault to an unknown tortfeasor under the facts of the instant case. Brown’s focus is on what a defendant cannot do; it does not concern itself with what a willing plaintiff can do. Put another way, we do not construe Brown as holding that fault can never, under any circumstances, be assigned to a phantom defendant; rather, as we read that case, it simply prevents a defendant from asserting the fault of an unknown individual or entity for the purpose of avoiding the imposition of fault on itself in a situation where the unknown tortfeasor’s fault cannot lead to the entry of a judgment.

FN3 We do not need to decide in this case if the holding in Brown is applicable to a factual scenario involving an unknown motor vehicle driver where the uninsured motorist statutory scheme is not involved.”

Id. at 174.

“Brown should be viewed as a shield that can be used by a plaintiff to ward off a defendant’s attempt to avoid the imposition of fault upon itself by assigning fault to one who, because of its phantom status, cannot be cast in judgment. Its holding was clearly designed to benefit a plaintiff. There is nothing in that holding to support the contention that Brown can be used as a sword against a plaintiff who attempts to assign fault to an unknown motorist in order to recover under the plaintiff’s uninsured motorist coverage. There is a fundamental difference between Brown and the instant case. In Brown, there could be no recovery based upon the unknown tortfeasor’s fault; in the UM case now before us, because of the presence of the UM carrier, there can be a recovery based upon the phantom’s fault. Thus, the problem present in Brown, i.e., the inability of the plaintiff to recover a judgment based upon the unknown tortfeasor’s fault, does not come into play in the instant case.” Id. at 175.

“As a second reason for rejecting Farmers’ basic Brown argument, we note that the Tennessee uninsured motorist statutes specifically contemplate that a UM carrier may be haled into court and held liable for the negligent acts of an unknown driver and the statutes do not provide for an exception to the liability of a UM carrier for those cases where the existence of an unknown motorist is first asserted by an already-sued defendant. Uninsured motorist coverage exists ‘for the protection of persons insured thereunder who are legally entitled to recover compensatory damages from owners or operators of uninsured motor vehicles.’ T.C.A. § 56-7-1201(a) (2000). By statute, the concept of an uninsured motorist includes an unknown motor vehicle driver under certain circumstances. T.C.A. § 56-7-1206(b) (2000). That statute specifically addresses the situation where an insured is injured by an unknown motorist:

If the owner or operator of any motor vehicle which causes bodily injury or property damage to a person insured under this part is unknown and if such insured satisfies all of the requirements of § 56-7-1201(e), should suit be instituted the insured shall issue a John Doe warrant against the unknown owner or operator in order to come within the coverage of the owner’s uninsured motorist policy. If the uninsured motorist’s identity and whereabouts are discovered during the pendency of the proceeding, the provisions of subsection (e) shall govern the proper course of action following such discovery.”

Id.

“[Tenn. Code Ann. § 56-7-1201(e)] provides as follows:

If the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, the insured shall have no right to recover under the uninsured motorist provision unless:

(1)(A) Actual physical contact shall have occurred between the motor vehicle owned or operated by such unknown person and the person or property of the insured; or

(B) The existence of such unknown motorist is established by clear and convincing evidence, other than any evidence provided by occupants in the insured vehicle;

(2) The insured or someone in the insured’s behalf shall have reported the accident to the appropriate law enforcement agency within a reasonable time after its occurrence; and

(3) The insured was not negligent in failing to determine the identity of the other vehicle and the owner or operator of the other vehicle at the time of the accident.”

Id. at 175.

“In light of these statutory provisions, we again agree with Judge Murrian, who opined that ‘the legislature, through the uninsured motorist statute, specifically contemplates that an uninsured motorist carrier may be held responsible for the negligent acts of an unknown tortfeasor.’ Resor, 108 F. Supp. 2d at 933.” Id. at 175-76.

“Quoting some of the predicate language of T.C.A. § 56-7-1201(a), Farmers argues that Breeding is not ‘legally entitled’ to recover damages from the unidentified nonparty because ‘fault may not be attributed to that person where that person is not identified sufficiently to allow [Breeding] to plead and serve process on that person.’ Thus, so Farmers’ argument goes, the UM statutes do not apply.” Id. at 176.

“We are not persuaded by this reasoning. Farmers is, in effect, saying that Brown applies to all situations involving phantom parties-at-fault first identified by already-sued defendants, including UM cases, and that, therefore, the uninsured motorist statutes do not apply because Breeding is not ‘legally entitled’ to recover. The argument assumes that which it sets out to prove, i.e., that Brown, rather than the uninsured motorist statutes, applies to cases involving the negligence of an unknown driver identified by an already-sued defendant where a plaintiff seeks to recover under the uninsured motorist coverage. As previously stated, we are of the opinion that Brown does not apply in the context of UM cases. To hold otherwise would be to view Brown as carving out an exception to the UM statutory scheme. Courts have no such power. Shelby County Election Comm’n v. Turner, 755 S.W.2d 774, 777-78 (Tenn. 1988). Because we find that the holding in Brown does not apply to UM cases, that case cannot serve as a basis for finding that Breeding is not ‘legally entitled’ to recover against Farmers under the facts of this case.” Id.

“Farmers next argues that Breeding cannot prove the existence of the phantom driver. Hence, so the argument goes, she cannot prove her case and her claim is subject to dismissal on the pleadings. To address this question, we again refer to T.C.A. § 56-7-1201(e), which provides, in pertinent part, as follows:

(1)(A) Actual physical contact shall have occurred between the motor vehicle owned or operated by such unknown person and the person or property of the insured; or

(B) The existence of such unknown motorist is established by clear and convincing evidence, other than any evidence provided by occupants in the insured vehicle.”

Id.

“In this case, it is alleged that there was no contact between the unknown vehicle and Breeding’s person or property. Thus, Breeding must satisfy the requirement of [Tenn. Code Ann.] § 56-7-1201(e)(1)(B). Farmers argues that Breeding has no right to recover against Farmers because she cannot, as a matter of law, satisfy the requirement of subsection (e)(1)(B). More specifically, Farmers asserts that (1) Breeding is prohibited by the statute from establishing the existence of the phantom driver by relying upon evidence provided by the occupants of her vehicle; and (2) the defendant Edwards, under Brown, is prohibited from establishing the existence of the phantom driver.^FN4 Thus, so the argument goes, the existence of the phantom driver cannot be established, either by the plaintiff or the defendant, and, consequently, Breeding has no right to recover against Farmers.^FN5

FN4 Farmers relies upon the following language in Brown:

After our review of the record, the parties’ arguments, and applicable authority, we conclude that a defendant may not attribute fault to a nonparty who is not identified sufficiently to allow the plaintiff to plead and serve process on such person pursuant to Tenn. Code Ann. § 20-1-119, even if the defendant establishes the nonparty’s existence by clear and convincing evidence.

FN5 Of course, this particular argument assumes that there is no individual, other than Edwards or maybe an ‘occupant[] in the insured vehicle,’ who can testify to the ‘existence of such unknown motorist.’ We do not know, at this preliminary stage of the proceedings, whether this assumption is correct or not. This being the case, we arguably could have rejected this particular argument on the basis that even if Brown applies to the claim against an uninsured motorist in this case, the record before us does not show that the plaintiff cannot establish her UM claim without the assistance of the testimony of Edwards or an individual in the plaintiff’s vehicle. However, since both parties seem to proceed on the assumption that Edwards is the sole witness to the existence of the unknown motorist, we have elected to address this second argument of Farmers.”

Id. at 176-77.

“This argument again assumes that Brown is applicable to cases involving unknown motorists under the facts of this UM case. As we have already stated, we do not agree with this contention. Thus, while it is true that Breeding is statutorily prohibited from establishing the existence of the phantom driver by way of evidence provided by the occupants of her vehicle, the existence of such driver may be established by clear and convincing evidence provided by the defendant Edwards, or by some third party other than an occupant of the plaintiff’s vehicle.” Id. at 177.

“In summary, we hold that a plaintiff has a statutory right to pursue an uninsured motorist claim against its carrier based upon the alleged negligence of an unknown motorist under the circumstances outlined in [Tenn. Code Ann.] § 56-7-1201(e), whether the existence of that motorist is first asserted by an already-sued defendant or is initially alleged by the plaintiff. Brown does not affect that statutory right. We further hold that the plaintiff’s claim against ‘John Doe’ in the instant case was timely filed and that the plaintiff is ‘legally entitled’ to recover against that unknown motorist should the trier of fact assign actionable fault to that driver. Finally, the issue as to whether a plaintiff can make out its case under the provisions of [Tenn. Code Ann.] § 56-7-1201(e) is an evidentiary one and depends upon the proof at trial; that issue is also unaffected by Brown.” Id. at 178.

“As the instant case presents a situation where the unknown motorist’s fault can lead to the entry of a judgment, Brown does not prevent the defendants in this litigation from attempting to have fault allocated to the phantom driver. Any other approach would be unworkable in light of our decision that the plaintiff has a statutory right to pursue a UM claim against its carrier based upon the alleged negligence of the phantom driver. If the plaintiff can seek the allocation of fault to the phantom driver because there is UM coverage, so may the defendants have fault allocated to the same driver. Of course, there will be only one allocation of fault to this phantom driver.” Id.

Other Sources of Note: Marler v. Scoggins, 105 S.W.3d 196 (Tenn. Ct. App. 2002) (the determinative factor is not whether the plaintiff brings an uninsured motorist claim but rather if plaintiff has the right to bring such a claim, and if plaintiff can bring one then fault can be assigned against a John Doe defendant).

State of Tennessee Has Subrogation Rights for Payments Made to Crime Victims

John Day — Tue, 10 Aug 2010 03:41:41 -0600

There are more and more tort cases arising after criminal acts, and one might forget that the State of Tennessee has subrogation rights to monies received in the later tort action.

T.C.A. Section 29-13-113 grants the state a subrogation right in proceeds recovered by the victim in a later torts suit. The statute also requires that the district attorney be given notice of the filing of the tort suit and copied on all pleadings after the suit is filed.

Sex Abuse Cases Against Therapists

John Day — Mon, 09 Aug 2010 03:13:22 -0600

If you have a potential claim for professional misconduct against a therapist for sexually abusing or inappropriately touching a patient, don't forget that Tennessee has a special act for such torts.

The act is known as the "Therapist Sexual Misconduct Victims Compensation Act." It is codified at T.C.A. Section 29-26-201 et seq.

Under the Act a therapist is "any person who performs therapy regardless of whether the person is licensed by the state."

The Act also has a longer statute of limitations that traditional tort cases in Tennessee. The statute of limitations is set forth in T.C.A. Section 29-26-208. Generally speaking, the statute of limitations in such claims is two years and is subject to a "discovery rule" but discovery of the injury does not occur until after the therapy ends.

Leading Tennessee Tort Cases - Comparative Fault - Allocation of Fault to an Unknown Party Generally

John Day — Fri, 06 Aug 2010 04:00:00 -0600

This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Cases in Tennessee Tort Law. To order the book go here.

§ 15.8 Allocation of Fault to an Unknown Party Generally

The Case: Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn. 2000).

The Basic Facts: Plaintiff was injured after slipping on ice and water spilled on floor in defendant’s store. The defendant contended that the jury should be permitted to consider the fault of the unidentified tortfeasor who was responsible for spilling the ice and water.

The Bottom Line:

“We granted the application for permission to appeal in this slip and fall case to decide the issue of whether the defendant can attribute fault to an unidentified, or ‘phantom,’ tortfeasor.” 12 S.W.3d at 785.

“Accordingly, in providing that a plaintiff should either amend the complaint or institute a separate suit against the ‘person’ alleged as a comparative tortfeasor in defendant’s answer, Tenn. Code Ann. § 20-1-119 contemplates that the plaintiff will actually know the identity of the alleged individual or entity. See Ridings, 914 S.W.2d at 82 (stating that this section ‘contemplates that those persons to whom fault may be attributed are limited to those against whom liability for the plaintiff’s damages may be asserted.’). Contrary to the conclusion of the Court of Appeals, clear and convincing evidence of the existence of a phantom tortfeasor is not sufficient identification for purposes of pleading and serving process. In our view, unless the nonparty is identified sufficiently to allow the plaintiff to plead and serve process on such person pursuant to Tenn. Code Ann. § 20-1-119, the trial court should not permit the attribution of fault to the nonparty.” Id. at 788.

"As the New Jersey court recognized, a defendant has a substantial interest in finding and naming all potential tortfeasors in order to diminish its percentage of fault. In our view, to allow a defendant to attribute fault to an unidentified nonparty would not only diminish a defendant’s incentive to identify additional tortfeasors, cf. George, 931 S.W.2d at 521-22, but also would effectively impose a burden on the plaintiff to “defend” the unidentified nonparty.” Id. at 789.

“We conclude that a defendant may not attribute fault to a nonparty who is not identified sufficiently to allow the plaintiff to plead and serve process on such person pursuant to Tenn. Code Ann. § 20-1-119, even if the defendant establishes the nonparty’s existence by clear and convincing evidence.” Id.

Other Sources of Note: Resor v. Graves, 108 F.Supp.2d 929 (E. D. Tenn. 2000) (declining to extend Brown to uninsured motorist claims, noting that in uninsured motorist actions, there is an entity – the insurer – which stands in place of the alleged nonparty tortfeasor, and can be identified, served with process, and represented in court, and can, if the jury so finds, be responsible for the portion of the unidentified phantom tortfeasor’s percentage of fault); Breeding v. Edwards, 62 S.W.3d 170, 178 (Tenn. Ct. App. 2001) (also holding that Brown does not extend to uninsured motorist suits, “as the instant case presents a situation where the unknown motorist’s fault can lead to the entry of a judgment, Brown does not prevent the defendants in this litigation from attempting to have fault allocated to the phantom driver”).

Recent Cases: Jones v. Shelby County Div. of Corrections, No. W2007-00198-COA-R3-CV, 2008 WL 366151 (Tenn. Ct. App. Feb. 12, 2008) (finding evidence did not preponderate in favor of defendant’s assertion that unknown third parties caused accident).

Thanks for the Book Orders

John Day — Thu, 05 Aug 2010 15:44:55 -0600

Thanks to each of you who has ordered the third edition of Day on Torts: Leading Cases in Tennessee Tort Law. Hundreds of books have been shipped in the last two months and orders are continuing to flow in.

Day on Torts identifies more than 300 Tennessee tort law subjects and provides summary of the leading case on each subject to give you a quick, readable synopsis of current state of the law. Many of the summaries include citations to other cases, giving you even more insight and helping narrow the scope of your research.

The good news is that books are still available. The bad news is that because the books are hard-cover and designed for pocket parts, once they are gone they will not be available again for three or four years (until the pocket part becomes so thick that a new edition of the book becomes necessary). The expense of a limited, second printing of the third edition is cost-prohibitive. Therefore, those lawyers who do not obtain a copy of the third edition will have to wait until the fourth edition is available to have their own copy of the book.

If you have not yet ordered the book you can still do so here. The 2010 price for this 650+ page book has been reduced to $129 (plus shipping and handling and sales tax).

Leading Tennessee Tort Cases - Comparative Fault - Allocation of Fault to a Product

John Day — Wed, 04 Aug 2010 04:00:00 -0600

This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Cases in Tennessee Tort Law. To order the book go here.

§ 15.7 Allocation of Fault to a Product

The Case: Owens v. Truckstops of America v. B. Michael Design. Inc, 915 S.W.2d 420 (Tenn. 1996).

The Bottom Line:

“This conclusion is supported by portions of the Uniform Contribution Among Tort-Feasors Act not addressed in McIntyre, which provide, ‘[i]f equity requires, the collective liability of some as a group shall constitute a single share’ and ‘[p]rinciples of equity applicable to contribution generally shall apply.’ Tenn. Code Ann. § 29-11-103(2) and (3).” Id.

“Consequently, joint and several liability against parties in the chain of distribution of a product is essential to the theory of strict products liability. Since strict liability does not require proof of negligence, but only that the product was defective or unreasonably dangerous, parties in the chain of distribution must be treated as a single unit for the purpose of determining and allocating fault.^FN14

FN14 The dissent’s insistence that each defendant in an action for strict liability be liable to the plaintiff according to its separate “fault” would impose upon the plaintiff the burden of proving each defendant was negligent, thus abolishing strict liability.”

915 S.W.2d at 432.

“When comparative fault principles are applied in a strict liability action, the plaintiff’s fault is compared with the fault of the strictly liable defendants as a single unit. The fault of these defendants is measured by the injury caused by the defective or unreasonably dangerous product. When liability is found on strict liability and also negligence or other theories, the trier of fact must apportion the fault for the plaintiff’s injuries or damages according to the percentage of damages caused by the plaintiff, that caused by the product, and that caused by each tortfeasor acting separately and independently.^FN17 This procedure was adopted by the Court in Whitehead…

FN17The following special verdict form, as adopted to the specific allegations of the case, may be used in cases where liability is predicated upon strict products liability and other theories such as negligence:

Using 100 percent as the total combined harm, find from a preponderance of the evidence the percentage of the plaintiff’s injuries or damages proximately caused by:

The defective or unreasonably dangerous product
          (Defendants A and B) _____ %
                         Defendant X _____ %
                         Defendant Y _____ %
                               Plaintiff _____ %

(Total must equal 100%)
_______________________
Signature of Foreman

Id. at 433.

“The triers of fact will determine the percentage of a plaintiff’s damages that is attributable to the defective or unreasonably dangerous product as well as the percentage that is attributable to the plaintiff’s own fault. Whitehead v. Toyota Motor Corp., 897 S.W.2d at 693 (emphasis added). See also Duncan, 665 S.W.2d at 427 (Tex. 1984). Thus, the adoption of comparative fault did not alter that products liability law under which the liability of defendants in the chain of distribution of a product, who are liable under a theory of strict liability, is joint and several. Under comparative fault principles, however, these defendants are jointly and severally liable only for that percentage of the plaintiff’s damages caused by the product. For the percentage of damages caused by the product, the strictly liable defendants are treated as a single unit or share. On the other hand, when liability is based on negligence, each of the defendants is severally liable only for the percentage of damages caused by its negligence. If those defendants who can be held jointly and severally liable on a claim of strict liability are also charged with negligence, as in this case, their liability on the negligence charge will be as separate, independent tortfeasors, and their liability on the negligence charge will be several only.” Id.

Other Sources of Note: Wielgus v. Dover Industries, Inc., 39 S.W.3d 124, 131 (Tenn. Ct. App. 2000) (Owens not applicable under the facts).