Assignment of Fault to a Nonparty

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.