Comparative Fault

February 20, 2025

Previous party brought back into suit under comparative fault statute.

When an amended answer asserted comparative fault against the city, which had previously been a party but had been voluntarily dismissed before the amended answer was filed, the plaintiff was allowed to add the city as a defendant within ninety days of the comparative fault allegation under Tenn. Code Ann. § 20-1-119.

In Sands v. Williard, No. W2024-00772-COA-R9-CV (Tenn. Ct. App. Jan. 24, 2025), the plaintiff filed suit against both the city and homeowners after she tripped on a sidewalk in front of the homeowners’ property. The city raised an issue about service of process in its initial answer. In their initial answer, the homeowners admitted to two paragraphs stating that the city had a duty, but there was no other allegation of comparative fault.

The city eventually filed a motion for summary judgment based on the statute of limitations, asserting that it was not properly served and, thus, the limitations period had run. While this motion was pending, the homeowners moved to amend their answer to assert comparative fault against the city. The plaintiff then moved to voluntarily dismiss her claim against the city. The plaintiff explained in her motion that “the purpose of the dismissal was to avoid the alleged outstanding service issues” and that she intended to rely on Tenn. Code Ann. § 20-1-119 to bring the city back into the suit after the homeowners filed their amended answer. The trial court granted the voluntary dismissal, and it allowed the plaintiff to bring the city back into the suit after the homeowners’ amended answer asserted comparative fault against the city.

January 31, 2025

Court of Appeals reverses its overturning of bench verdict in pedestrian knock down case.

by The Law Offices of John Day, P.C.

Where the trial court found the plaintiff more credible in a bench trial surrounding a pedestrian accident, the Supreme Court vacated the Court of Appeals opinion overturning a finding for the plaintiff on her negligence claim. The Court of Appeals subsequently affirmed the negligence ruling, but it vacated the allocation of fault and award of damages for recalculation.

In a memorandum opinion in Easley v. City of Memphis, No. W2023-00437-COA-R3-CV (Tenn. Ct. App. Jan. 2, 2025) (memorandum opinion), the Court of Appeals affirmed a negligence ruling it had previously overturned. The case involved a pedestrian injury, where the plaintiff was hit by a truck while crossing the street in the middle of the block. The truck was owned by the city and driven by a city employee. The nearest intersection had a crosswalk and was about forty feet away, but the plaintiff did not use the crosswalk.

During a bench trial, the plaintiff testified that the driver had stopped to allow a group of pedestrians to pass, but when she got to the middle of the truck, the truck moved forward and hit her. She also stated that the driver was on the phone and distracted. The driver, on the other hand, testified that he was stopped behind two other cars at an intersection. According to the driver, he began moving forward when the car in front of him moved forward, and the plaintiff stepped suddenly into his path.

June 21, 2024

Bench verdict for plaintiff in pedestrian case reversed.

by The Law Offices of John Day, P.C.

A trial court’s ruling for plaintiff was overturned where plaintiff stepped off a curb between parked cars, not in a crosswalk, and was hit by a truck while attempting to cross the road.

In Easley v. City of Memphis, No. W2023-00437-COA-R3-CV (Tenn. Ct. App. May 1, 2024), plaintiff attempted to cross the street in the middle of a block. A crosswalk existed forty feet away, but plaintiff failed to use it. Instead, plaintiff stepped off the curb between parked cars and was hit by a city employee driving a truck. Plaintiff filed this case against the city as the driver’s employer pursuant to the GTLA.

At trial, plaintiff’s testimony shifted. While she initially testified that the driver was looking at his phone, she also testified that she could not see where he was looking. She also stated that the driver stopped to allow pedestrians to cross, but then testified that he stopped due to a red light.

December 18, 2023

Trial court’s fault allocation in motor vehicle accident case affirmed.

by The Law Offices of John Day, P.C.

Where the trial court found in a bench trial that plaintiff was 20% at fault for a motor vehicle accident and the bus driver was 80% at fault, that ruling was affirmed based on the testimony of the witnesses and findings of fact of the trial judge.

In Cook v. Jefferson County, Tennessee, No. E2022-01537-COA-R3-CV (Tenn. Ct. App. Oct. 12, 2023), plaintiff was seriously injured and totaled his car when he crashed into a bus on a foggy morning. The accident occurred in a school zone, and the bus was stopped across two lanes of traffic, blocking both lanes, as it attempted to turn left out of the school exit.

Defendant presented testimony from an accident reconstructionist who opined that plaintiff had been traveling 15-20 miles over the 25 mile per hour school zone speed limit when he first began braking, and that plaintiff was the cause of the accident. On cross examination, however, the expert admitted that, due to the foggy conditions, plaintiff would not have been able to stop in time to avoid an accident even if he had not been speeding.

August 9, 2023

Summary judgment overturned where minor was killed while drinking and driving.

by The Law Offices of John Day, P.C.

Where plaintiff created issues of genuine material fact regarding the potential liability of various defendants in the death of his minor son, who was killed while drinking and driving, summary judgment for most defendants was reversed. Further, the Court of Appeals found that the question of whether the decedent was “at least 50% at fault for comparative fault purposes [was] a question not properly resolvable at this summary judgment stage under the facts of this case.”

In Benbow v. L&S Family Entertainment, LLC, No. M2022-00491-COA-R3-CV (Tenn. Ct. App. July 12, 2023), plaintiff brought suit after his minor son, who was 20-years-old, died while drinking and driving. Plaintiff asserted that various defendants were negligent in the course of the evening that decedent died.

Decedent was out with a friend on the night he died, and that friend was 21-years-old. Plaintiff presented evidence that at defendant restaurant the server carded the friend but not decedent, and then brought a pitcher of beer and two cups to the table; that decedent and his friend appeared intoxicated when they arrived at defendant bowling alley; that a worker at defendant bowling alley carded the friend but not decedent, yet provided a pitcher of beer and two cups; that decedent and his friend went to a bar after the bowling alley, and that at that bar decedent’s debit card was used to buy drinks; that the friend’s mother came to the bar and that video evidence showed her possibly buying drinks that were then given to decedent; that the mother helped decedent into a car to be driven home; that decedent and the friend ended up going to the friend’s house; and that the friend and his father got into an argument, whereupon decedent drove himself away from the house and got into the fatal accident.

August 13, 2021

Tennessee Supreme Court Agrees to Review Comparative Fault Issue in Negligent Misrepresentation Case

by The Law Offices of John Day, P.C.

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.

February 11, 2021

Summary judgment for HCLA defendants affirmed based on statute of limitations and lack of duty.

by The Law Offices of John Day, P.C.

Where one defendant in an HCLA case was not the owner or operator of the facility at which plaintiff alleged he received negligent medical treatment, and that defendant did not employee, train or control the employees who allegedly provided negligent care, summary judgment for that defendant was affirmed. Further, where the other defendant was added as a party after the statute of limitations had run, summary judgment for that defendant was also affirmed. In Waller v. Varangon Corporation d/b/a Varangon Academy, No. W2019-02211-COA-R3-CV (Tenn. Ct. App. Jan. 29, 2021), plaintiff was a resident at a juvenile treatment facility when he reported to the medical personnel at the facility that he was having stomach pain and nausea. Nurses at the facility gave plaintiff over-the-counter treatment, but his condition worsened, and plaintiff was taken to a local emergency room several days later and diagnosed with bowel obstruction, which required surgery. At the time of this incident in 2016, plaintiff was seventeen.

The facility where plaintiff had been residing was owned by Varangon Corporation (“Varangon”) and known as Varangon Academy from 2010-2013. In January 2014, Omni Visions, Inc. (“OVI”) purchased the facility and the business from Varangon, and OVI retained the trade name Varangon Academy. As part of the purchase, Varangon and OVI entered into a management services agreement whereby OVI “agreed to continue to provide residential treatment and other services to juveniles at the facility,” and Varangon agreed to license to OVI a treatment model it had developed. Varangon also agreed to make recommendations on personnel issues, but OVI “retained final decision-making authority over personnel issues.” Under the agreement, “OVI retained ultimate legal responsibility, authority, and responsibility over the rendition of all residential treatment services at the facility.”

October 29, 2020

Jury finding that plaintiff was 60% at fault for car accident affirmed.

by The Law Offices of John Day, P.C.

Where plaintiff and defendant gave differing versions of a car accident, the photographs of the vehicles could be interpreted to support defendant’s version of events, and the jury appeared to credit defendant by finding plaintiff 60% at fault, the Court of Appeals affirmed the jury’s verdict and the trial court’s refusal to grant a new trial.

In Justice v. Gaiter, No. M2019-01299-COA-R3-CV (Tenn. Ct. App. Oct. 15, 2020), plaintiff and defendant were involved in a car accident on December 23^rd in heavy traffic near a mall. Defendant was attempting to pull onto a road separating two parking areas when the cars collided. At a jury trial, plaintiff asserted that he was sitting in traffic when he was essentially t-boned by defendant in the driver’s door, and that defendant’s car then slid down the remainder of the driver’s side of plaintiff’s car. Defendant, on the other hand, testified that a car had stopped to let him cross into traffic, that he stuck his fender slightly into the lane he was attempting to merge into, and that he was sitting still when plaintiff’s vehicle failed to stop and hit the corner of defendant’s car. The photographs offered into evidence showed “the scraping on Plaintiff’s car from the driver’s side door to the rear fender” and damage to the front of defendant’s car.

October 19, 2020

New trial affirmed where defendant shifted blame after failing to plead comparative fault.

by The Law Offices of John Day, P.C.

Where the defendant in an HCLA case did not plead comparative fault, but during his testimony at trial stated that the reason he failed to take certain actions was because the nurses never notified him of the patient’s chest pain, the trial court did not abuse its discretion in ruling that defendant attempted to shift blame to a non-party and ordering a retrial.

In Kanipe v. Patel, No. E2019-01211-COA-R3-CV (Tenn. Ct. App. Sept. 28, 2020), plaintiff filed a healthcare liability suit after his mom died from “an undiagnosed aortic dissection while in the care of [defendant].” The patient had been taken to the ER by ambulance on the morning of December 31, 2012, and after being seen by the ER physician, she was transferred to defendant, a cardiologist. Defendant examined the patient and prescribed medication, then left the hospital before lunch with an order that he “be called for questions, orders, or changes in [the patient’s] condition.” Defendant received a call from Nurse Crepo at 3:30 p.m, which proved to be “one of the most contested parts of the case.” After this call, defendant ordered medications for pain and nausea for the patient, but he never re-evaluated her. At 1:47 a.m. that night, the patient was pronounced dead from an aortic dissection.

October 12, 2020

Noneconomic damages cap should be applied to each plaintiff separately in personal injury cases.

by The Law Offices of John Day, P.C.

When an HCLA plaintiff was awarded a verdict for her health care liability claims and her husband was awarded damages for loss of consortium, the trial court correctly considered the plaintiffs separately for the purpose of applying the statutory cap on noneconomic damages. FIRST PUBLISHED IN JUNE 2020. SEE UPDATE BELOW.

In Yebuah v. Center for Urological Treatment, No. M2018-01652-COA-R3-CV (Tenn. Ct. App. May 28, 2020), plaintiff had surgery to remove a cancerous kidney in 2005. A CT scan was done four months after surgery, and the radiologist reported no signs of cancer. The radiology report on a subsequent CT scan noted a “tubular structure” within plaintiff’s abdominal cavity, but plaintiff’s treating physician “did not read the reference to the foreign object.” Seven years later, plaintiff required gallbladder surgery due to severe abdominal pain. During that surgery, it was discovered that a “part of a gelport device” had been left inside plaintiff during her 2005 kidney surgery. Plaintiff required another surgery to have the device removed.