A Blue-Chipper for Friday

I have not posted any blue-chip tort cases lately. There is no particular reason for my failure to do so; there has just been a good deal of other information out there to post.

(For those of you who are new to this blog you can read about “blue-chippers” here.)

Today I have a special treat for you – two blue-chippers. Why? Because they really need to be considered together to understand the full impact on them in Tennessee law.

In Carroll v. Whitney, 29 S.W.3d 14 (Tenn. 2000) the Tennessee Supreme Court ruled that fault can be assigned to a state employee (who cannot be sued in tort and the vicarious liability of the State is limited to $300,000)and, to the extent that the dollar-value of the fault exceeds the damage cap the plaintiff bears the loss.

On the very same same day the Tennessee Supreme Court released its opinion in Dotson v. Blake, 29 S.W.3d 26 (Tenn. 2000). The Court ruled that a defendant can ask that fault can be assigned to a party that the plaintiff cannot sue because of the expiration of a statute of repose and that the plaintiff bears the economic consequences of the jury’s allocation of fault to that nonparty.

I think both of these decisions are wrong, and am happy to report that Justice Anderson dissented in both of them. It is unfair for the General Assembly to make the decision that certain people or entities are not responsible for their conduct and then have our courts place the sole burden of that decision on a plaintiff when others contributed to cause the harm. Presumably, all citzens – plaintiffs and defendants – derive some economic benefit from governmental immunity and statutes of repose. If so, it only seems fair that the cost of that immunity be borne not only by a plaintiff but also by any other person who contributed to cause plaintiff’s injury or death.

Obviously, the Tennessee Supreme Court thinks otherwise.

So why include these as blue-chippers? Remember, the test for a blue-chipper is not whether I agree with the decision but whether I believe the decision is one that I think Tennessee tort lawyers need to know. There is no doubt that these decisions qualify. Each decision impacts case selection in a very meaningful way and in fact may make it impossible to economically pursue a case that is otherwise viable.