Day on Torts
While Tennessee’s agritourism statute provides immunity for agritourism professionals in certain circumstances, it does not “preclude the allocation of fault to a nonparty agritourism professional in a negligence action.”
In Green v. St. George’s Episcopal Church, No. M2017-00413-COA-R3-CV (Tenn. Ct. App. Nov. 16, 2018), Ms. Green went on a church outing to a local farm. She was riding in a church bus driven by a parishioner, and when the bus crossed over two drainage berms at the farm, the “resulting jolt severely injured [her].”
Plaintiff filed suit against the church, and the church asserted the comparative fault of the farm in its answer. Plaintiff moved for partial summary judgment on the comparative fault issue, “arguing that Tennessee’s agritourism statute precluded a finding that [the farm’s] conduct caused or contributed to her injuries.” The trial court denied this motion, and granted a motion in limine to exclude any evidence about the farm’s immunity. At the end of the trial, the jury returned a verdict for plaintiff, finding the church 15% at fault and the farm 85% at fault. Plaintiff appealed, arguing that fault should not have been apportioned to the farm, and the Court of Appeals affirmed.
Tenn. Code Ann. §43-39-102(a) states that “no agritourism professional shall be liable for injury to…a participant resulting solely from the inherent risks of agritourism activities…,” and that “no participant…shall maintain an action or recover from an agritourism professional for injury…of the participant resulting exclusively from any of the inherent risks of agritourism activities.” In analyzing this statute, the Court of Appeals agreed with the trial court that while this statute makes agritourism professionals immune from liability and from being sued, it does not make them immune from fault. The Court reasoned:
[T]he agritourism statute does not make agritourism professionals immune from fault as well as liability. And the additional language restricting a participant’s ability to ‘maintain a cause of action’ does not change our conclusion. A participant’s ability to bring suit affects whether the participant can recover damages, not whether a jury can assess fault. We conclude that nothing in the agritourism statute evidences a legislative intent to preclude allocation of fault to an agritourism professional.
(internal citation omitted). The trial court’s decisions and jury’s verdict were thus affirmed.
This opinion brings about an unfortunate result for plaintiff. At the trial of this case, plaintiff was assigned no fault at all, yet due to the large apportionment of fault to a party who is immune from liability, plaintiff will only recover 15% of her damages. My article on the impact of immunity on acceptance and trial of comparative fault cases in Tennessee is included in the January 2019 edition of the Tennessee Bar Journal.