Day on Torts

The Tennessee Supreme Court has announced that it is going to hear oral argument in a very important case on Wednesday, May 7th, 11:00 a.m. in Knoxville.  The case is Tennie Martin et al. v. Norfolk Southern Railway Co. et al. (Franks,  author) (Susano, dissenting) - E2006-01021-SC-R11-CV.  The issues are:

1. Whether the Court of Appeals’ majority erroneously affirmed the summary judgment granted to the Respondents where it relied on contributory negligence cases and did not analyze the parties’ comparative fault under Eaton v. McLain, 891 S.W.2d 587 (Tenn. 1994).

2. Whether the Court of Appeals’ majority erred by concluding that there were no genuine issues of material fact in determining that the decedent was more than fifty percent at fault.

This is a railroad crossing case and both issues will help answer important questions concerning the role of the trial judge hearing a motion for summary judgment in a comparative fault case where the plaintiff's fault is at issue.  Watch here for more information.

The United States Court of Appeals  for the Sixth Circuit released a decision several months ago that presents a real danger for plaintiff's lawyers and their clients who seek to rely on T.C.A. Section 20-1-119 to avoid a statute of limitations defense.

The Tennessee Bar Journal published my article on the case.  The article lays out the problems with the opinion and the case law you can use to try to convince a federal judge that the decision is plain error.

If caught in a trap, I would recommend bringing the case law I cite in the article to attention of the federal judge and asking the court to certify the question to the Tennessee Supreme Court.

Read the article on page 34 of the January 2008 edition of the Tennessee Bar Journal.  It is available here.

Should a court ever determine, as a matter of law, that a plaintiff is fifty percent or more at fault?  Should it ever do so when there is some evidence of fault of the defendant?

Those questions will be explored by the Tennessee Supreme Court in the coming months.  The Court has accepted review of Martin v. Southern Railway Company, a railroad crossing death case.  Judge Franks, joined by Judge Swiney, found that the plaintiff's claims were barred as a matter of law.  Judge Susano dissented,  saying that a jury question was present.

Look for a decision in late Spring, 2008.

The Tennessee Supreme Court decided the Troup case on Friday.  Troup is a case involving a third-party tort action arising from an on-the-job injury suffered by the employee of a sub-contractor on a construction site.  The Western Section of the Court of Appeals held that it was reversible error not to instruct the jury that the general contractor could be held at fault.  The trial judge instructed the jury that it could consider the conduct of the general contractor only if the conduct was the sole cause-in-fact of the plaintiff's injuries.  The basis for the trial judge's decision was that the general contractor was a statutory employer and thus the issue was controlled by the Synder decision.

The Tennessee Supreme Court agreed with the trial judge and reinstated the jury's verdict.  Here is how Justice Holder's opinion described and addressed Fischer's argument:

Fischer's argument requires an analysis of Tennessee Code Annotated section 50-6-113 (2005), which provides that a principal contractor (i.e., a general contractor) may be liable for injuries to employees of a subcontractor. Under this subsection, Belz, the general contractor, is liable for Troup’s injuries because Troup was injured while working for Jolly, Belz’s subcontractor. In exchange for this exposure to liability under the Workers’ Compensation Law, Belz receives immunity from suit in tort. See Tenn. Code Ann. § 50-6-108 (2005). In addition, if Belz paid compensation to Troup, then Belz would be entitled to a subrogation lien against any judgment Troup received against a third party such as Fischer. See Tenn. Code Ann. § 50-6-112(c)(1) (2005). Fischer, however, argues that Belz did not pay benefits to Troup and therefore does not have a subrogation interest in the instant case.  If Belz does not have a subrogation interest, then there is no actual threat that Troup’s recovery will be reduced a second time. Fischer argues that juries may apportion fault to employers when there is not an actual threat of a double reduction of a particular plaintiff’s recovery. We  disagree. 

In Carroll, we held that Ridings and Snyder continue to be uniquely applicable when a third party defendant attempts to allocate fault to an employer whose liability is governed by the Workers’ Compensation Law. 29 S.W.3d at 19; see also Dotson, 29 S.W.3d at 29-30 (Holder, J., concurring). Although our ruling was designed to prevent the unfairness of allowing an employer’s right to subrogation to defeat an employee’s tort recovery against a third party, we did not hold that Ridings and Snyder would be applicable only upon a showing that the plaintiff’s tort recovery was actually in danger of being defeated in this way. Rather, we explained that the potential for double reduction of a plaintiff’s recovery was prevalent enough to justify a special rule for cases when a plaintiff   injured on the job files a tort claim against a third party. Carroll, 29 S.W.3d at 19. In other words, Carroll established a bright-line rule rather than the case-by-case analysis suggested by Fischer. If a jury’s ability to apportion fault to an employer were contingent on a showing that a plaintiff’s recovery will actually be subject to a double reduction, then in every tort case involving an on-thejob injury trial courts would be forced to determine and plaintiffs would be forced to prove whether an employer has or is likely to have a subrogation interest. Such a determination would be especially difficult in cases in which an employee’s contested workers’ compensation claim has yet to be settled or conclusively adjudicated. We decline to place this additional burden on plaintiffs and trial courts that already must navigate the murky waters where workers’ compensation and comparative fault
intersect. Instead, we hold that Ridings and Snyder are uniquely applicable to cases in which the plaintiff’s recovery for an injury is governed by both the Workers’ Compensation Law and the laws of the comparative fault system, regardless of whether there is an actual threat of a double reduction of plaintiff’s recovery. Accordingly, we conclude that the trial court did not err in prohibiting Fischer from arguing the comparative fault of Belz.          [Footnotes omitted.]

Makes sense to me. 

My favorite part of the opinion is footnote 2, which says as follows:

There are two potential methods for preventing th[e]double reduction [that would occur if fault were permitted to be assigned to employers and then employers were permitted to collect their subrogation interest out of the plaintiff's tort recovery.]  .The first is the method prescribed by Ridings and Snyder prohibiting juries from apportioning fault to employers in third-party tort cases. The second would be to allow juries to apportion fault to employers and then limit an employer’s recovery to the extent that the employer was allocated fault. Tennessee Code Annotated section 50-6-112(c) (2005) forecloses the second possibility by allowing an employer to pursue its full subrogation interest against an employee’s recovery regardless of the employer’s degree of fault. See Castleman v. Ross Eng’g, Inc., 958 S.W.2d 720, 723-24 (Tenn. 1997). Accordingly, the only method available to this Court for protecting employees from a double reduction in their tort recoveries is to follow Ridings and Snyder and to prohibit juries from apportioning fault to employers. This method is, of course, an exception to the general rule provided in Carroll and will sometimes result in third parties being attributed liability in excess of their fault. Such difficulties could be avoided if Tennessee Code Annotated section 50-6-112(c) were amended to allow an employer to recover from an employee’s third-party tort recovery only insofar as the employer was not allocated fault in the third-party tort case. We invite the General Assembly to consider such an amendment.

I hope the General Assembly will take such action.  The current method of  addressing this issue is cumbersome and leads to the potential for injustice for tort plaintiffs and defendants.  It only makes sense that an employer should be allocated fault and that its subrogation interest be reduced appropriately.

The case is Troup v. Fischer Steel Corporation, No. W2005-00913-SC-R11-CV  ( Aug. 31, 2007).  Read it here.

A complaint against the State of Tennessee has just been dismissed because the plaintiff alleged that a state trooper may have committed negligence but did not affirmatively allege that the trooper was negligent.  The Court of Appeals affirmed the dismissal stating that it did not state a cause of action.  The case is Rogers v. State,  No. M2006-2353-COA-R3-CV  (Tenn. Ct. App. August 2, 2007).  Read the opinion here.

Plaintiff filed the complaint in response to an allegation of fault by a defendant.  Clearly the plaintiff did not want to sue the state (read: the trooper) but felt she had to and do so within the time period prescribed by T. C.A. Sec. 20-1-119.

So what do you do?  You plead the case against the new defendant like this:  "Based solely on the allegations of Defendant X, Plaintiff alleges that ...."  That tactic permits you to allege fault but not have the defendant's theory attributed to you or, worse yet, have your case dismissed.

Justice Holder has released on new comparative fault opinion on behalf of the Tennessee Supreme Court.

Austin had a one-car accident and sued Fayette County for negligently maintaining the roadway. Fayette County said this in its answer:

"the traffic sign in question was not placed there by the Defendant, Fayette County, Tennessee; that it is in the right of way of the State of Tennessee; that it is under the control of the State of Tennessee; that Fayette County, Tennessee has no control over said stop sign, its placement, maintenance, etc[.] and that it cannot be held liable for the stop sign regardless of its condition."

Fayette County also said it was not“engaged in maintenance of the roadway at or near the intersection of Mt. Pleasant Road and Highway 57 including but not limited to the maintenance of lighting, barricades and other traffic devices as they were under the control of the State of Tennessee.”

The Austins then brought a claim against the State.  The State said the statute of limitations had expired, and the Austins claimed the benefit of 20-1-119.

The trial court rejected the Austin's argument, saying Fayette County had not alleged the fault of the State and therefore Sec. 20-1-119 was not applicable.  The Court of Appeals affirmed.

The TSC reversed, saying  "we conclude that Tennessee Code Annotated section 20-1-119 applies whenever a defendant’s answer gives a plaintiff notice of the identity of a potential nonparty tortfeasor and alleges facts that reasonably support a conclusion that the nonparty caused or contributed to the plaintiff’s injury."  The Court explained that "A defendant is not required to allege the fault of the nonparty explicitly or use the words “comparative fault.” Consistent with the liberal pleading standards of the Tennessee Rules of Civil Procedure, the determination of whether comparative fault is an issue cannot turn on the presence or absence of such precise language."

This paragraph is a real winner:

"The State also argues that comparative fault is not at issue in this case because Fayette County’s factual allegations constitute a general defense that negates an essential element of the Austins’ claim, rather than an affirmative allegation of the fault of a nonparty. Stated differently,  the general defense does not allege comparative fault but simply denies all fault. Our construction of Tennessee Code Annotated section 20-1-119, however, does not support this distinction. Tennessee Code Annotated section 20-1-119 requires us to determine if the answer of Fayette County alleges that a person not a party to the suit “caused or contributed to” the injury or damage for which the plaintiff seeks recovery. To give effect to each word of the statute, we must construe “caused” and “contributed to” such that each has a distinct meaning. See Culbreath v. First Tenn. Bank Nat’l Ass’n, 44 S.W.3d 518, 524 (Tenn. 2001) (holding that when interpreting a statute we are bound to give effect to each word and avoid interpretations that render certain words or phrases superfluous). In this context, the most ordinary use of the word “caused” implies that a nonparty was entirely responsible for the plaintiff’s injuries, while “contributed to” suggests that the nonparty was merely one of multiple entities responsible for the plaintiff’s injuries. Under this reading of the statute, it is irrelevant whether a defendant seeks to shift all or part of the fault to a nonparty. Tennessee Code Annotated section 20-1-119 applies in either event. Thus construed, Fayette County’s answer may be fairly read to allege that the State caused the injuries and damages to the Austins."

The Court's opinion represents a practical construction of a remedial statute which was drafted to address the problem created by non-party fault allocation in a state with a one-year statute of limitations.  Tom Pebbles of Nashville wrote the original draft of this statute, and I participated in the creation of the final product that became law fourteen years ago.  The Court's interpretation of the statute reflects a goal that at least I had fourteen years ago, and that was to permit a plaintiff a reasonable opportunity to add any non-party to a lawsuit once the defendant put the plaintiff on notice in the answer that the non-party's conduct was at issue.

The case is Austin v. State of Tennessee,  No. M2005-01300-SC-R11-CV (May 1, 2007).  Read it here.

Under Tennessee law fault cannot be assigned to a plaintiff's employer but the defendant is permitted to prove and argue that the employer was the cause in fact of the injury.

But what if the defendant wants to ask the jury to apportion fault to an entity that is deemed an employer under Tennessee worker's compensation law and therefore obtains the benefit of immunity from suit by the plaintiff?  Can the statutory employer be assigned fault even though the plaintiff cannot sue it?

In a case of first impression, the Court of Appeals (Western Section) says "yes" in Troup v. Fischer Steel Corp., No. W2005-00913-COA-R3-CV  ( August 10, 2006) and in doing so reversed a $500,000+ verdict for the plaintiff. The court ruled that the Trial Court erred when it failed to permit the steel subcontractor defendant from proving and arguing the fault of the general contractor in a personal injury case filed by the employee of the roofing subcontractor.

A decision released yesterday by the Court of Appeals confuses me greatly.  Defendant 1 blamed Nonparty in an answer.  Plaintiff sued Nonparty, who then became Defendant 2.  Defendant 2 moved to dismiss, saying  inter alia that the complaint against it was barred by the statute of repose.  Then, according to the opinion, Defendant 2 said that "argued that Tennessee’s  comparative fault joinder statute, which would operate to toll the three-year statute of repose, was  inapplicable in the current litigation."

Well, I sure hope that Defendant 2's lawyers did not say that because that is not the law.  In fact, it is 180 degrees wrong. 

T.C.A. Sec. 20-1-119 has a dangerous subsection  and this is as good of time to talk about it as any.  Subsection  (b) of the statute says as follows: "A cause of action brought within ninety (90) days pursuant to subsection (a) shall not be barred by any statute of limitations. This section shall not extend any applicable statute of repose, nor shall this section permit the plaintiff to maintain an action against a person when such an action is barred by an applicable statute of repose." (Emphasis added).

This means that you have to force the hand of your opponents early in a case to determine whether or not they are going to name a nonparty who might be the beneficiary of a get-out-of-jail-free provided to them by our Legislature.  A defendant may attempt to wait until after the statute of repose expires against the nonparty and then blame the nonparty in an amended answer.  If the Court permits the amendment and fault is assessed against the nonparty the plaintiff will bear the economic result of any fault assessed against the nonparty.

This can usually be avoided through the use of discovery tools and scheduling orders.

Now, it is true that T.C.A. Sec. 20-1-119 was inapplicable to the case - the plaintiff did not timely file the first action.  But to suggest that 20-1-119 would have saved the claim against Defendant 2 if Defendant 1 had been sued on time is just plain wrong.

The case is Howard v. Kindred Nursing Centers Limited Partnership,  No. W2005-02360-COA-R3-CV (Tenn. Ct. App. W.S. August 2, 2006). 

Here is a link to an article I wrote for the Tennessee Bar Journal about a recent opinion discussing T.C.A. Sec. 20-1-119. Go to the link and locate the article and you will find a link to the article in the "Table of Contents" on the left side of the page. The column is titled, "You Sunk My Lifeboat!"

The Tennessee Supreme Court ruled on Friday that the failure of a plaintiff to get leave to amend a complaint before adding a nonparty as a defendant to not permit the newly-added party to raise the statute of limitations as a bar.

Key to the holding was the fact that the plaintiff got permission to amend after serving the "amended complaint" on the new defendant.

The holding: "When a plaintiff utilizes section 20-1-119 to amend a complaint to name a nonparty as a defendant, the plaintiff must first seek permission of the trial court or adverse parties as provided by Tennessee Rule of Civil Procedure 15.01. However, on the facts of this case, failure to file the motion to amend before filing the amended complaint and securing service of process is not fatal when all requirements of Rule 15.01, including the trial court's grant of the motion to amend, occur within the ninety-day window created by section 20-1-119. Plaintiff has substantially complied with Rule 15.01 of the Tennessee Rules of Civil Procedure and should be allowed to amend her complaint to add Defendant as a party."

What is the right way to add a nonparty as a party? The opinion spells it out: "Successful amendments under section 20-1-119 require four discrete actions within ninety (90) days: (1) the filing and (2) granting of a motion to amend, (3) the filing of an amended complaint, and (4) the issuance of process."

The case is Jones v. Professional Motorcycle Escort Service, Inc., No. W2005-00079-SC-S09-CV (May 19, 2006). Read the opinion here.

If my memory serves me correctly this is Justice Clark's first tort opinion. She did a great job applying substance over form while at the same time sending a clear message about how to do it right in the future. The defendant suffered no undue prejudice by the failure of the plaintiff to follow the rules strictly. Any different result would have been a "gotcha."

The Eastern Section of the Tennessee Court of Appeals has ruled that comparative fault applies to cases tried under a nuisance theory.

According to the opinion, "[t]he Complaint alleged that plaintiffs and defendants own adjoining property and that defendants constructed a private road on their property through an area of natural drainage adjoining the Plaintiffs' property. Further, that the road "impeded and/or altered the natural flow of rainwater runoff such that the private road acts as a dam." The road caused damage to Plaintiff's home and personal property. Plaintiff brought a nuisance action.

The Court said that "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."

The case is Manis v. Gibson; it was decided March 3, 2006. Read the opinion here.

The Supreme Court of South Dakota has ruled that in a civil action arising out of the decedent's death by suicide the jury should have been instructed to "evaluate the effect of [the decedent's] mental incapacity in judging [the decedent's] contributory negligence." Because the jury was instructed to use the typical "reasonable person standard" a verdict for the defendant was reversed.

The Court cited with approval the following language from the North Dakota instructions: "If the patient's capacity for self care is so diminished by mental illness that it is lacking, we agree that an allocation of fault is not appropriate. . . In making the fault comparison, the factfinder should always take into account the extent of the patient's diminished mental capacity to care for his own safety."

A defendant found 100% at fault claimed it should get the benefit of plaintiff's settlement with a prior defendant. The Tennessee Supreme Court said "No" in an opinion authored by Justice Anderson.

This result is correct. While it is true that the plaintiff here recovered 150% of his damages (because the prior settlement gave plaintiff 50% of his damages) the plaintiff took the risk of getting less than 100% of his damages by settling with one defendant and leaving an "empty chair." This is a calculated risk that worked out well for the plaintiff in this case, but could have just as easily resulted in the plaintiff receiving no additional recovery whatsoever.

The defendant had the right to prove the fault of the settling defendant and did not do so. It failed to carry its burden of proof, and the plaintiff got the benefit of that failure. If the defendant had carried its burden and proved that the settling defendant was 100% at fault the plaintiff would have had to "eat" the whatever amount of fault was assessed to the settling defendant over the 50% threshold.

Plaintiffs must have the upside benefit of a "good" deal if they have to face the risk of downside risk of a "bad" deal. The later was clearly the law, and the former had to be the law. A contrary ruling would have made it difficult one of multiple defendants to ever settle out - the plaintiff would have to increase the settlement demand from any one defendant to compensate for the risk.

With several important limitations, T.C.A. § 20-1-119 permits a plaintiff to add parties defendant to a case even if the statute of limitations has expired. The triggering event for adding nonparties as parties is typically language in the defendant's answer or amended answer.

Can a plaintiff who may be at fault assert res ipsa loquitur in a jurisdiction that has adopted comparative negligence?

The Eighth Circuit Court of Appeals recently examined this issue under Iowa law. The Court held that the Iowa Supreme Court would not require a plaintiff to disprove his or her own fault in order to rely on res ipsa. The decision is McGuire v. Davidson Manufacturing Company; to read the opinion click here.