Day on Torts
The Tennessee Supreme Court has agreed to accept review of a comparative fault issue concerning the tort of negligent misrepresentation. The issue:
Whether the affirmative defense of comparative fault is applicable to a negligent misrepresentation cause of action in which the conduct of the plaintiff constituting the basis for that defense also pertains to the justifiable reliance element of the negligent misrepresentation cause of action?
The case is Pryority Partnership v. AMT Properties, LLC, No. 2020-00511-SC-R11-CV. Here is a copy of the court of appeals opinion in the case, decided on March 10, 2021.
The Court of Appeals gave the following ruling on the negligent misrepresentation issue:
Pryority contends that Mr. Crick’s reliance was unreasonable and that he should have had the Warehouse’s roof independently inspected to determine the severity of the leaks. This contention sounds in principles of comparative fault, a defense generally applicable to claims of negligent misrepresentation. See Staggs v. Sells, 86 S.W.3d 219, 224 (Tenn. Ct. App. 2001). However, because Pryority did not plead the defense of comparative fault in response to AMT’s answer and counter-complaint, the defense was not considered by the trial court and cannot be considered by this Court. See Tenn. R. Civ. P. 8.03 (“In pleading to a preceding pleading, a party shall set forth affirmatively facts in short and plain terms relied upon to constitute . . . comparative fault.”); see also Barnes v. Barnes, 193 S.W.3d 495, 501 (Tenn. 2006) (“Issues not raised in the trial court cannot be raised for the first time on appeal.”). We accordingly affirm the trial court’s determination that Pryority was liable for its negligent misrepresentation.
It appears that the Court of Appeals did not address the issue in the manner described in the Supreme Court’s statement of the issue.
Expect an opinion in the Spring of 2022.