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.
The opinion does a nice job collecting case law from around the country on this subject. Of course, the opinion is not binding precedent on Tennessee but it will give you a good head start for your research on this issue.
Finally, remember that Iowa’s comparative negligence law arises from statutes; Tennessee’s law in the field is common law. The common law genesis of Tennessee’s law gives the courts more flexibility to make new law consistent with public policy as seen by the courts.
There are several Tennessee cases since McIntyre the subject. Unfortunately, none of them address the interaction between the doctrine and comparative fault. The cases are collected in Day, Capparella, and Wood, Tennessee Law of Comparative Fault Section 10.8 (2d ed. 2002; 2005 Supp.)