Blue Chipper – Summary Judgement

McCarley v. West Quality Food Service, Inc., 960 S.W.2d 585 (Tenn. 1998) is one of my favorite blue chippers because it is a double-chipper.

First, McCarley made it possible for a plaintiff to actually win a food poisoning case without having retained a sample of the product that caused the injury.

Second, and more important in the day-to-day life of trial lawyers, McCarley was the first decision to require that a party seeking summary judgment actually had to have some evidence establishing an affirmative defense or defeating an element of the opponent’s claim before the burden shifted to the opponent. After this decision, a defendant could no longer file a one-paragraph motion and brief and say “prove it;” instead, the defendant had to say “this undisputed evidence right here says you can’t prove it or, even if you can, this undisputed evidence establishes an affirmative defense that you can’t beat.” (Of course, either party can still file a motion on a pure issue of law.)

McCarley is a great decision and clearly worthy of “blue chipper” status.