Day on Torts
The McIntyre opinion permitted fault to be assessed against people who were not a party to the action. From the day McIntyre was released it was clear that a defendant could ask that fault be assessed against a prior defendant who settled before trial. Over the years that followed it became clear that fault could be assessed against certain other people that the plaintiff could not have sued.
In Brown v. Wal-Mart, 12 S.W3d 785 (Tenn. 2000), the defendant tried to blame a phantom party. In other words, it tried to blame not only a person who the plaintiff could not sue but a person who it failed or refused to even identify. The Tennessee Supreme Court rejected that effort. Click here to read the opinion.
The effect of this decision is to either force a defendant to identify a wrongdoer or, if it does not, the wrongdoer cannot be allocated fault. It greatly reduces the possibility of a fraudulent defense.
There is one important exception to this rule. Tennessee uninsured/underinsured motorist law permits a recovery against “John Doe” defendants. Our courts permit a defendant to blame a “John Doe” in a motor vehicle wreck case. See e.g. Breeding v. Edwards, 62 S.W.3d 170 (Tenn. Ct. App. 2001). Although the law on this subject is not fully developed, there is thus no doubt that a defendant may ask that fault be apportioned to a “John Doe when the plaintiff has UM/UIM insurance.