Today, May 4, 2012, is the 20th anniversary of the landmark McIntyre v. Balentine opinion, the case where the Tennessee Supreme Court adopted modified comparative fault.
All in all, most would say that the comparative fault scheme in Tennessee improved the quality of the civil justice in Tennessee. I agree. For the most part, the Tennessee Supreme Court has done a fine job developing the common law in this important field.
There is one notable exception, although it is not entirely the Tennessee Supreme Court’s fault.
Our Legislature has granted certain people and corporations privileged status in the law. Those special privileges have existed for decades, and the current General Assembly seems hell-bound to not only protect those that exist but expand them to others who have the power to seek and obtain them.
What am I talking about? First, governmental immunity. Governmental immunity includes damage caps, although they are not typically labeled as such. But, in my opinion, if the financial obligation for the harm you cause is statutorily limited you enjoy a type of immunity. The notion that our governments – federal, state, and local – are not fully responsible for the harm they negligently causes its citizens is an outrage.
Second, the immunity given to those special groups who benefit from statutes of repose. Once again, some cringe when I label this as an immunity, but the fact of the matter is that statutes of repose are yet another way that people avoid responsible for harm they cause. Tennessee has many of these statutes, the most offensive of which is the four-year statute of repose protecting engineers, architects, and contractors. These statutes extinguish liability because of the mere passage of time, and they are wrong.
The Tennessee Supreme Court was well aware of these laws when it adopted a pure several liability system. They did so, in dicta, in McIntyre. They had the opportunity to fix that mistake in Dotson v. Blake, 29 S.W.3d 26 (Tenn. 2000) and Carroll v. Whitney, 29 S.W.3d 14 (Tenn. 2000). Specifically, the Court had the opportunity to adopt a modified joint and several liability system that would have spread the cost of immunity of any type on all of those who benefit from the grant of immunity. Instead, it chose to stick with several liability, and place all of the burden of a grant of immunity on the injured plaintiff.
What do I mean? Take for example the grant of immunity to a local government for negligent inspection. There are many circumstances under which a local government is required to inspect property, but the law grants that governmental entity immunity from doing a sloppy inspection. Thus, if a building inspector negligently okays the electrical system in a new house and issues a certificate of occupancy, but an electrical fire consumes the house two days later and a family perishes, the government has no liability.
Now, the contractor can still be sued, but it can ask for fault to be assigned to the sloppy governmental inspector even though the plaintiff can not sue the government or the inspector. Is that fair? I mean really, is that fair?
I think not, but consider this: the unfairness is heightened because of several liability.
Let me explain. The alleged purpose behind the grant of immunity to governments which conduct negligent inspections is that expecting government to do their job correctly would increase costs to taxpayers. Thus, the argument goes, we all pay lower taxes because governments are not responsible for their actions.
Note the ‘we all pay lower taxes" phrase in the preceding paragraph. The negligent contractor pays lower taxes, too, not just the now deceased family. But the contractor not only gets the benefit of paying lower taxes. It also gets the opportunity to reduce its fault by blaming someone the plaintiffs cannot sue in the event its negligence combines with the government’s negligence to harm another.
Thus, the purported benefit of immunity flows to all, but all of the costs of immunity are borne by the injured and the dead.
And that is wrong. Dead wrong.
If we are going to grant privileged status (immunity of any type) to those with sufficient wealth or influence to obtain it, the cost of that immunity should be born pro rata by all those assessed with fault in a given incident. It should not be thrust solely upon the dead and injured. The opportunity to fix this problem is what the Tennessee Supreme Court lost when it issued Dotson and Carroll in 2000.
Looking at it now, perhaps it would have made a difference for only a limited period of time anyway. There are those in the Republican party who not only want to abolish the few, limited situations where joint and several liability applies but also eliminate vicarious liability. (Can you believe that – vicarious liability is on the chopping block?) So, if the Court had done what I believe it should have done it undoubtedly would be repealed by our new General Assembly.
The last 20 years have been a fascinating time to be a tort lawyer in Tennessee. Our Court is to be congratulated for having the courage to abolish contributory negligence as an affirmative defense, and for a great many other comparative fault and tort decisions that have advanced the cause of civil justice in Tennessee.