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.