Comparative Fault

January 1, 2014

Statutes of Repose and Comparative Fault in Tennessee

The Tennessee Bar Association has published the most recent edition of the Tennessee Bar Journal, which includes my latest article "Protecting Yourself From Statutes of Repose."

The article discusses the impact of statutes of repose on tort recoveries in cases involving comparative fault and gives tips to lawyers on how to avoid adverse consequences of statutes of repose.

Ironically, and in the very same edition of the Tennessee Bar Journal in which I criticize statute of repose, the Tennessee Bar Association announces that it has decided to ask the Tennessee General Assembly to grant one to lawyers. From the TBA President:

May 4, 2012

Tennessee Comparative Fault Law is 20 Years Old Today!6

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

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.

May 2, 2012

Article on T.C.A. Section 20-1-119 and the Mills Decision

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

T.C.A. Section 20-1-119 is one of the most important statutes for those of us who practice personal injury law in Tennessee, and the recent Mills v. Fulmarque opinion issued by the Tennessee Supreme Court has changed the way many people thought about this statute.

Subject to several important limitations, the purpose of section 20-1-119 is to provide plaintiffs with an opportunity to add additional defendants to a case in which comparative fault is an issue, notwithstanding the expiration of the statute of limitations. The Mills court held that section 20-1-119 provides a ninety-day window in which a plaintiff may name a new non-party as a defendant only if the defendant alleging comparative fault against the new non-party was sued within the statute of limitations applicable to the plaintiff’s cause of action.

The Tennessee Bar Association has published an article I wrote on the statute and the MIlls opinion as the cover story for the May 2012 edition of the Tennessee Bar Journal.

March 21, 2012

The Impact of The Passage of Time on the Ability to Prove Causation

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

A truck driver who negligently caused a car wreck on an interstate highway cannot be held responsible for an accident occurring four hours later in traffic backed-up because of the original crash.

In Blood v. VH-1 Music First, No. 09-399 (7th Cir. Feb. 9, 2012), the appellate court affirmed a grant of summary judgment in favor of the original at-fault truck driver arising from a claim brought by persons injured and killed in the later crash. The plaintiffs in the second crash did not sue the driver of the first crash. Rather, the defendants in the second case filed third-party complaints against the driver in the original crash. Only then did the plaintiffs in the second crash sue the driver in the first crash.

The case was dismissed because the trial court found, and the appellate court agreed, that there was no proximate cause as a matter of law. The 7th Circuit explained that there was no real dispute about what happened: the second wreck was 4 and 1/2 miles away and 4 hours after the first. In addition, the Blood vehicle slowed to a stop in traffic and the second defendants slammed into the rear of that car.

December 15, 2011

The Law of Indivisible Injury

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

A law student at the University of Texas, Michael T. Raupp, has written a note in the Texas Law Review (Issue 90, Volume 1) titled "The Multiplication of Indivisible Injury." The work is critical of the handling of the subject by the Restatement (Third) of Torts, which prompted a response by the Reporters.

This is a complicated area of the law, and Raupp does a good job gathering case law and describing the applicable public policy concerns.

As Raupp, explains, "the indivisible injury doctrine, [which operates] as an exception to the causation component of damages, rescues the plaintiff from the position of not being able to recover simply because he happened to encounter two negligent actors instead of one. Additionally, it prevents the tortfeasors from escaping liability for their negligent acts simply because the hapless plaintiff was injured a second time."

February 17, 2011

Application of Comparative Fault to Economic Loss

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

The Missouri Supreme Court has determined that comparative fault principles should apply to cases where the loss suffered by the plaintiff is purely economic.

In Children’s Wish Foundation, International, Inc. v. Mayer Hoffman McCann, P.C., No. SC9094 (Missouri S.C. 2/8/11) plaintiff brought a professional negligence claim against the accounting firm that provided it auditing services and another firm that provided tax services. Defendants persuaded the trial court to charge the jury that any contributory negligence of plaintiff barred its claim. The jury returned a verdict for defendants.

The issue on appeal was whether comparative fault applies in a professional negligence action alleging only economic damage. (Missouri adopted comparative fault in personal injury cases in 1983). Defendants argued that contributory negligence should bar the claim because the relationship between them and the plaintiff was governed by a contract and that contract gave the parties the opportunity to allocate risk of loss.

March 17, 2010

Motions To Strike Insufficient Affirmative Defenses

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

I have had several lawyers ask me to post our most recent work in the area of filing motions to strike insufficient affirmative defenses in comparative fault cases.

I have been filing these motions since 1992. A defendant has an obligation to follow Rule 8.03 of the Tennessee Rules of Civil Procedure and set forth the facts upon which a affirmative defense, including the defense of comparative fault, is based. The failure to do so should result in the defense being stricken from the answer.

A defendant has a right to have a reasonable amount of time to investigate the case and amend their answer to assert a comparative default defense of a party or non-party. This is discussed in my article called "Party Planning for Tort Lawyers" in the November 2009 edition of the Tennessee Bar Journal.

November 16, 2009

Party Planning For Tort Lawyers

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

Here are the first few paragraphs of an article that I wrote for the November 2009 edition of the Tennessee Bar Journal titled "Party Planning for Tort Lawyers." Rest the rest of the article (and the footnotes) here.

Litigation in a world of comparative fault and several liability involves party planning. Planning a party is hard work. One essential component of the party planning process is determining who to invite, and party planning by committee presents a whole new set of challenges. Everyone agrees that some people must be at the party. Everyone agrees that certain people should not be there. And, while everyone agrees that the party should occur on the selected date, there is often a disagreement about whether certain people should be extended a party invitation.

In tort litigation, the original host of the party is the plaintiff, and the plaintiff frequently has a good idea of who should be invited to the party. Competent plaintiff’s lawyers also want the party to occur as soon as reasonably possible.

September 30, 2009

New Tennessee Supreme Court Opinion on Comparative Fault

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

The Tennessee Supreme Court has ruled that a plaintiff who lost a medical malpractice case in federal court was not estopped from pursing a case against a State-employed doctor even though the federal court jury assigned no fault to the doctor, a non-party in the federal court action.

An excerpt:

We have determined that the proceeding in federal court did not provide Ms. Mullins with a full and fair opportunity to litigate her medical negligence claims against Dr. Mejia. It is undisputed that Ms. Mullins could not, as a matter of law, recover monetary damages from either Dr. Mejia or the State in the federal proceedings. Common sense also dictates that it would have been foolhardy for Ms. Mullins to press her claim that Dr. Mejia had been negligent in the federal proceeding because doing so would have diluted the strength of her claims against the remaining defendants and would have profited her little in later proceedings against Dr. Mejia. [Footnotes omitted.]

September 21, 2009

Tennesse Law of Comparative Fault – Third Edition

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

Do you have a question about comparative fault law in Tennessee? Or the interaction between comparative fault law and civil procedure? If so, you may wish to consult Tennessee Law of Comparative Fault.

Donald Capparella and I wrote the original edition of the book, and John Wood joined us for the second and third editions. Unfortunately, West Publishing does very little to let Tennessee lawyers know that the book exists.Here is a listing of the book’s chapters:

Comparative Fault in Tennessee Before McIntryre
The McIntyre Decision
Transitional Cases
Joint and Several Liability
Assignment of Fault
Causation and Comparative Fault
Assumption of Risk
Premises Liability
Products Liability
Effect of Comparative Fault on Common Law Tort Doctrines
Settlement Issues
Civil Procedure Considerations
Persons Under Disabilities
Loss of Consortium and Services Claims
Wrongful Death

The book is available here for $118.15 (no shipping charge). West Publishing says the book is sold in hardcover – that is incorrect. It is a softcover book.