Articles Posted in Comparative Fault

Tennessee law will permit a plaintiff who properly voluntarily dismisses a suit  in state  to timely re-file it and avoid a statute of limitations defense, but the correct procedure must be followed.

Frye v. Blue Ridge Neuroscience Center, P.C., 70 S .W.3d 710, 716-717 (Tenn.2002) tells us that “absent service of the Notice of Voluntary Dismissal and the complaint at the time of taking the nonsuit, a plaintiff who has failed to serve process prior to the taking of the nonsuit in accordance with Rule 3 may not rely upon the benefit of the one-year tolling period of the saving statute to avoid the bar of the statute of limitations.”

Rule 41.01, governing the taking of voluntary dismissals, provides that,

Certain claims for personal injury, wrongful death and property damage may be asserted against the State of Tennessee, but different rules apply and there are plenty of pitfalls for those unfamiliar with the law or procedures of litigating in the Claims Commission.  One such pitfall arise at the intersection of the law of claims against the State and the law of comparative fault.

In Moreno v. City of Clarksville[1]  plaintiff filed a claim against the State of Tennessee after a tree on state law fell on his vehicle.  When the claim was not settled, he timely filed a formal complaint with the Claims Commission.  The State of Tennessee then blamed the City of Clarksville for causing the damage and, within the 90-day period provided by §20-1-119 plaintiff sued the City of Clarksville under the Governmental Tort Liability Act in state court.  As permitted by statute,[2] the Claims Commission action was transferred to the Circuit Court for Montgomery County and consolidated with the action pending against the City of Clarksville. [3]

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Where a plaintiff was injured while working on a construction site owned by defendant, but the trial court ruled that plaintiff was actually an employee of an independent contractor retained by defendant, the Court of Appeals affirmed a jury verdict finding defendant only 10% at fault for plaintiff’s injuries.

In Helton v. Lawson, No. E2018-2119-COA-R3-CV (Tenn. Ct. App. Dec. 18, 2019), Defendant was having a house built on a piece of property that he owned, and he had retained “local handyman Gene Housewright” to help. Housewright was then contacted by plaintiff, who was looking for a job, and Housewright told him he needed laborers for defendant’s house project. On November 6, 2012, Housewright and another worker had assembled bracing to be used when working on the house. Later than day, plaintiff was standing on the bracing and was injured when the bracing pulled loose from the house, causing him to fall.

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A defendant sued within the statute of limitations states in its answer or amended answer that a person not a party to the lawsuit negligently contributed to cause plaintiff’s injuries.  Plaintiff decides to sue the nonparty, and rely on Tenn. Code Ann. §20-1-119 to avoid a statute of limitations defense.

How does a plaintiff add the nonparty as a party defendant?

The answer depends on whether the case is in state court or federal court.   In state court, plaintiff has an absolute right to amend under Tenn. R. Civ. Pro. 15.01.  In relevant part, it provides ” [f]or amendments adding defendants pursuant to Tenn. Code Ann. §20-1-119, however, written consent of the adverse party or leave of court is not required.”

Where there was contradictory evidence regarding whether plaintiff followed certain braking procedures, but there was evidence that another employee did not follow lifting procedures at a railroad facility, a reasonable juror could have attributed no fault to plaintiff for an accident that occurred at the facility.

In Boyd v. BNSF Railway Company, No. W2017-02189-COA-R3-CV (Tenn. Ct. App. Dec. 17, 2018), plaintiff worked at a railroad facility, and she “was crushed by a container box being lifted off of a holster truck.” Plaintiff had been driving the truck and had exited the truck when the other employee operating a crane began lifting the shipping container off the truck. When the entire truck started moving, plaintiff attempted to get back into the truck, but she was hit by the shipping container and seriously injured.

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While Tennessee’s agritourism statute provides immunity for agritourism professionals in certain circumstances, it does not “preclude the allocation of fault to a nonparty agritourism professional in a negligence action.”

In Green v. St. George’s Episcopal Church, No. M2017-00413-COA-R3-CV (Tenn. Ct. App. Nov. 16, 2018), Ms. Green went on a church outing to a local farm. She was riding in a church bus driven by a parishioner, and when the bus crossed over two drainage berms at the farm, the “resulting jolt severely injured [her].”

Plaintiff filed suit against the church, and the church asserted the comparative fault of the farm in its answer. Plaintiff moved for partial summary judgment on the comparative fault issue, “arguing that Tennessee’s agritourism statute precluded a finding that [the farm’s] conduct caused or contributed to her injuries.” The trial court denied this motion, and granted a motion in limine to exclude any evidence about the farm’s immunity. At the end of the trial, the jury returned a verdict for plaintiff, finding the church 15% at fault and the farm 85% at fault. Plaintiff appealed, arguing that fault should not have been apportioned to the farm, and the Court of Appeals affirmed.

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Even when a person chooses to participate in a risky sport, he or she does not “assume the risk of whatever dangerous conduct, however unreasonable, is engaged in by the [other] participants.” Instead, in a negligence case, the reasonableness of the defendant’s conduct will be determined based on the circumstances of the case.

In Crisp v. Nelms, No. E2017-01044-COA-R3-CV (Tenn. Ct. App. March 28, 2018), plaintiff was the surviving spouse of a bicycle rider who died following a cycling accident. At the time of the accident, decedent and four other cyclists were riding in a paceline, which is when the riders proceed in a straight line close together with the front rider setting the pace. Plaintiff alleged that the rider in front suddenly slowed, causing the second rider to bump wheels with the front rider. The second rider then went down, and decedent was unable to avoid the accident, hitting the second rider and being thrown off his bike. Decedent “was rendered quadriplegic by the wreck,” and died a few months thereafter.

Plaintiff filed a negligence suit against the first and second rider, who both filed motions for summary judgment, which the trial court granted. The trial court ruled that “paceline cycling is inherently dangerous and that Decedent was at least 50% at fault for his accident.” In its order, the trial court stated that “the ultimate conclusion is that these types of accidents are foreseeable in bicycle racing, especially this type of close racing,” and that “these parties chose to engage in this activity.” On appeal, summary judgment was reversed.

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A surviving spouse maintains priority to file a wrongful death action, even if the surviving spouse’s alleged negligence caused or contributed to the decedent’s death.

In Nelson v. Myres, No. M2015-01857-SC-R11-CV (Tenn. March 5, 2018), decedent died in a car accident. The daughter filed a wrongful death action, naming several defendants, including decedent’s surviving husband. According to daughter, husband “was under the influence of an intoxicant at the time of the accident” and his actions disqualified him from maintaining the suit (husband was “ultimately incarcerated for vehicular homicide”). Husband filed a wrongful death action, naming only the other driver as a defendant, and the other driver asserted comparative fault against husband in his answer.

Husband moved to dismiss daughter’s wrongful death action, claiming that he had the superior right to bring the case, and the trial court agreed. The Court of Appeals, however, reversed, holding that husband “had an inherent conflict of interest because, due to his conduct in bringing about the accident, he would be both a defendant and a plaintiff in [decedent’s] wrongful death action.” The Court of Appeals held that “only [daughter’s] lawsuit would fully prosecute [decedent’s] cause of action.” Husband appealed to the Tennessee Supreme Court, which reversed the Court of Appeals decision, reinstating husband as the proper person to maintain the wrongful death action.

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Where a drainage cut in a concrete platform was visible but not open and obvious, a finding that the plaintiff was only twenty percent at fault for his fall was affirmed on appeal.

In Osborne v. The Metropolitan Government of Nashville and Davidson County, No. M2017-01090-COA-R3-CV (Tenn. Ct. App. Feb. 22, 2018), plaintiff fell while visiting a city-owned facility for trash that was too large for regular trash trucks. The center had two levels, with the upper level being about five feet off the ground. On the edge of the upper platform there was a 26-inch-wide concrete barrier, and this barrier had 15-inch-long drainage cuts. There were signs stating “Please Use Care When You Unload Items” and telling children to stay in the vehicle, but there were no signs about the drainage cuts, no verbal warnings, and no markings or paint to draw attention to the cuts. Plaintiff had been to this center many times, but he had never been directed to this particular area. When he got out of his truck, he stepped onto the barrier and sidestepped toward the back of his truck without looking down at the barrier. As he was walking, not holding onto his truck, he stepped into the drainage cut and fell five feet, injuring his arm.

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Where a defendant adds an affirmative defense asserting comparative fault against a non-party more than two years after the complaint was originally filed, such assertion may be appropriate and timely if the defendant was diligent in obtaining information about the potential tortfeasor.

In Santore v. Stevenson, No. W2017-01098-COA-R3-CV (Tenn. Ct. App. Feb. 20, 2018), plaintiff was injured when he was hit by a vehicle at a truck stop. Plaintiff filed suit against Cordova Concrete, Inc. and its employee (Cordova) on July 8, 2014. At some later point, Cordova learned that a 911 call had been made from the accident scene, and it sent a subpoena to the City of Memphis to obtain a recording of the call. When the city did not respond, Cordova sent a public records request, and thereafter received an audio file of the call and a Background Event Chronology.

Cordova found a number listed in the chronology and called it multiple times, finally identifying the 911-caller as a truck driver. Cordova arranged to depose the truck driver on August 29, 2016, and during that deposition the caller stated that an Averitt truck hit plaintiff. Based on this information, on September 20, 2016, Cordova filed a motion to amend its answer and assert an affirmative defense of comparative fault against Averitt and its unknown driver. This filing came “more than two years after the complaint was filed but less than three months after obtaining the public records from the City of Memphis.” Cordova and plaintiff agreed to allow the amendment, and plaintiff then amended the complaint to add Averitt and the unknown driver as defendants.

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