Comparative Fault

May 2, 2012

Article on T.C.A. Section 20-1-119 and the Mills Decision

T.C.A. Section 20-1-119 is one of the most important statutes for those of us who practice personal injury law in Tennessee, and the recent Mills v. Fulmarque opinion issued by the Tennessee Supreme Court has changed the way many people thought about this statute.

Subject to several important limitations, the purpose of section 20-1-119 is to provide plaintiffs with an opportunity to add additional defendants to a case in which comparative fault is an issue, notwithstanding the expiration of the statute of limitations. The Mills court held that section 20-1-119 provides a ninety-day window in which a plaintiff may name a new non-party as a defendant only if the defendant alleging comparative fault against the new non-party was sued within the statute of limitations applicable to the plaintiff’s cause of action.

The Tennessee Bar Association has published an article I wrote on the statute and the MIlls opinion as the cover story for the May 2012 edition of the Tennessee Bar Journal.

March 21, 2012

The Impact of The Passage of Time on the Ability to Prove Causation

by The Law Offices of John Day, P.C.

A truck driver who negligently caused a car wreck on an interstate highway cannot be held responsible for an accident occurring four hours later in traffic backed-up because of the original crash.

In Blood v. VH-1 Music First, No. 09-399 (7th Cir. Feb. 9, 2012), the appellate court affirmed a grant of summary judgment in favor of the original at-fault truck driver arising from a claim brought by persons injured and killed in the later crash. The plaintiffs in the second crash did not sue the driver of the first crash. Rather, the defendants in the second case filed third-party complaints against the driver in the original crash. Only then did the plaintiffs in the second crash sue the driver in the first crash.

The case was dismissed because the trial court found, and the appellate court agreed, that there was no proximate cause as a matter of law. The 7th Circuit explained that there was no real dispute about what happened: the second wreck was 4 and 1/2 miles away and 4 hours after the first. In addition, the Blood vehicle slowed to a stop in traffic and the second defendants slammed into the rear of that car.

December 15, 2011

The Law of Indivisible Injury

by The Law Offices of John Day, P.C.

A law student at the University of Texas, Michael T. Raupp, has written a note in the Texas Law Review (Issue 90, Volume 1) titled "The Multiplication of Indivisible Injury." The work is critical of the handling of the subject by the Restatement (Third) of Torts, which prompted a response by the Reporters.

This is a complicated area of the law, and Raupp does a good job gathering case law and describing the applicable public policy concerns.

As Raupp, explains, "the indivisible injury doctrine, [which operates] as an exception to the causation component of damages, rescues the plaintiff from the position of not being able to recover simply because he happened to encounter two negligent actors instead of one. Additionally, it prevents the tortfeasors from escaping liability for their negligent acts simply because the hapless plaintiff was injured a second time."

February 17, 2011

Application of Comparative Fault to Economic Loss

by The Law Offices of John Day, P.C.

The Missouri Supreme Court has determined that comparative fault principles should apply to cases where the loss suffered by the plaintiff is purely economic.

In Children’s Wish Foundation, International, Inc. v. Mayer Hoffman McCann, P.C., No. SC9094 (Missouri S.C. 2/8/11) plaintiff brought a professional negligence claim against the accounting firm that provided it auditing services and another firm that provided tax services. Defendants persuaded the trial court to charge the jury that any contributory negligence of plaintiff barred its claim. The jury returned a verdict for defendants.

The issue on appeal was whether comparative fault applies in a professional negligence action alleging only economic damage. (Missouri adopted comparative fault in personal injury cases in 1983). Defendants argued that contributory negligence should bar the claim because the relationship between them and the plaintiff was governed by a contract and that contract gave the parties the opportunity to allocate risk of loss.

March 17, 2010

Motions To Strike Insufficient Affirmative Defenses

by The Law Offices of John Day, P.C.

I have had several lawyers ask me to post our most recent work in the area of filing motions to strike insufficient affirmative defenses in comparative fault cases.

I have been filing these motions since 1992. A defendant has an obligation to follow Rule 8.03 of the Tennessee Rules of Civil Procedure and set forth the facts upon which a affirmative defense, including the defense of comparative fault, is based. The failure to do so should result in the defense being stricken from the answer.

A defendant has a right to have a reasonable amount of time to investigate the case and amend their answer to assert a comparative default defense of a party or non-party. This is discussed in my article called "Party Planning for Tort Lawyers" in the November 2009 edition of the Tennessee Bar Journal.

November 16, 2009

Party Planning For Tort Lawyers

by The Law Offices of John Day, P.C.

Here are the first few paragraphs of an article that I wrote for the November 2009 edition of the Tennessee Bar Journal titled "Party Planning for Tort Lawyers." Rest the rest of the article (and the footnotes) here.

Litigation in a world of comparative fault and several liability involves party planning. Planning a party is hard work. One essential component of the party planning process is determining who to invite, and party planning by committee presents a whole new set of challenges. Everyone agrees that some people must be at the party. Everyone agrees that certain people should not be there. And, while everyone agrees that the party should occur on the selected date, there is often a disagreement about whether certain people should be extended a party invitation.

In tort litigation, the original host of the party is the plaintiff, and the plaintiff frequently has a good idea of who should be invited to the party. Competent plaintiff’s lawyers also want the party to occur as soon as reasonably possible.

September 30, 2009

New Tennessee Supreme Court Opinion on Comparative Fault

by The Law Offices of John Day, P.C.

The Tennessee Supreme Court has ruled that a plaintiff who lost a medical malpractice case in federal court was not estopped from pursing a case against a State-employed doctor even though the federal court jury assigned no fault to the doctor, a non-party in the federal court action.

An excerpt:

We have determined that the proceeding in federal court did not provide Ms. Mullins with a full and fair opportunity to litigate her medical negligence claims against Dr. Mejia. It is undisputed that Ms. Mullins could not, as a matter of law, recover monetary damages from either Dr. Mejia or the State in the federal proceedings. Common sense also dictates that it would have been foolhardy for Ms. Mullins to press her claim that Dr. Mejia had been negligent in the federal proceeding because doing so would have diluted the strength of her claims against the remaining defendants and would have profited her little in later proceedings against Dr. Mejia. [Footnotes omitted.]

September 21, 2009

Tennesse Law of Comparative Fault – Third Edition

by The Law Offices of John Day, P.C.

Do you have a question about comparative fault law in Tennessee? Or the interaction between comparative fault law and civil procedure? If so, you may wish to consult Tennessee Law of Comparative Fault.

Donald Capparella and I wrote the original edition of the book, and John Wood joined us for the second and third editions. Unfortunately, West Publishing does very little to let Tennessee lawyers know that the book exists.Here is a listing of the book’s chapters:

Comparative Fault in Tennessee Before McIntryre
The McIntyre Decision
Transitional Cases
Joint and Several Liability
Assignment of Fault
Causation and Comparative Fault
Assumption of Risk
Premises Liability
Products Liability
Effect of Comparative Fault on Common Law Tort Doctrines
Settlement Issues
Civil Procedure Considerations
Persons Under Disabilities
Loss of Consortium and Services Claims
Wrongful Death

The book is available here for $118.15 (no shipping charge). West Publishing says the book is sold in hardcover – that is incorrect. It is a softcover book.

January 23, 2009

New Edition of Tennessee Law of Comparative Fault

by The Law Offices of John Day, P.C.

In 1997, five years after the adoption of comparative fault in Tennessee, Donald Capparella and I wrote a book called Tennessee Law of Comparative Fault..

Five years later our friend John Wood joined us for the second edition of the book, and West Publishing Company took over the printing and distribution of the book.

Another 5 or 6 years passed, and last fall we completed the 3rd edition of the book. The editing and printing has been completed, and the book is now available for purchase from West.

April 7, 2008

Important Comparative Fault Case to Be Argued in May

by The Law Offices of John Day, P.C.

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.