Articles Posted in Comparative Fault

The Tennessee Supreme Court has announced that it is going to hear oral argument in a very important case on Wednesday, May 7th, 11:00 a.m. in Knoxville.  The case is Tennie Martin et al. v. Norfolk Southern Railway Co. et al. (Franks,  author) (Susano, dissenting) – E2006-01021-SC-R11-CV.  The issues are:

1. Whether the Court of Appeals’ majority erroneously affirmed the summary judgment granted to the Respondents where it relied on contributory negligence cases and did not analyze the parties’ comparative fault under Eaton v. McLain, 891 S.W.2d 587 (Tenn. 1994).

2. Whether the Court of Appeals’ majority erred by concluding that there were no genuine issues of material fact in determining that the decedent was more than fifty percent at fault.

The United States Court of Appeals  for the Sixth Circuit released a decision several months ago that presents a real danger for plaintiff’s lawyers and their clients who seek to rely on T.C.A. Section 20-1-119 to avoid a statute of limitations defense.

The Tennessee Bar Journal published my article on the case.  The article lays out the problems with the opinion and the case law you can use to try to convince a federal judge that the decision is plain error.

If caught in a trap, I would recommend bringing the case law I cite in the article to attention of the federal judge and asking the court to certify the question to the Tennessee Supreme Court.

Should a court ever determine, as a matter of law, that a plaintiff is fifty percent or more at fault?  Should it ever do so when there is some evidence of fault of the defendant?

Those questions will be explored by the Tennessee Supreme Court in the coming months.  The Court has accepted review of Martin v. Southern Railway Company, a railroad crossing death case.  Judge Franks, joined by Judge Swiney, found that the plaintiff’s claims were barred as a matter of law.  Judge Susano dissented,  saying that a jury question was present.

Look for a decision in late Spring, 2008.

The Tennessee Supreme Court decided the Troup case on Friday.  Troup is a case involving a third-party tort action arising from an on-the-job injury suffered by the employee of a sub-contractor on a construction site.  The Western Section of the Court of Appeals held that it was reversible error not to instruct the jury that the general contractor could be held at fault.  The trial judge instructed the jury that it could consider the conduct of the general contractor only if the conduct was the sole cause-in-fact of the plaintiff’s injuries.  The basis for the trial judge’s decision was that the general contractor was a statutory employer and thus the issue was controlled by the Synder decision.

The Tennessee Supreme Court agreed with the trial judge and reinstated the jury’s verdict.  Here is how Justice Holder’s opinion described and addressed Fischer’s argument:

Fischer’s argument requires an analysis of Tennessee Code Annotated section 50-6-113 (2005), which provides that a principal contractor (i.e., a general contractor) may be liable for injuries to employees of a subcontractor. Under this subsection, Belz, the general contractor, is liable for Troup’s injuries because Troup was injured while working for Jolly, Belz’s subcontractor. In exchange for this exposure to liability under the Workers’ Compensation Law, Belz receives immunity from suit in tort. See Tenn. Code Ann. § 50-6-108 (2005). In addition, if Belz paid compensation to Troup, then Belz would be entitled to a subrogation lien against any judgment Troup received against a third party such as Fischer. See Tenn. Code Ann. § 50-6-112(c)(1) (2005). Fischer, however, argues that Belz did not pay benefits to Troup and therefore does not have a subrogation interest in the instant case.  If Belz does not have a subrogation interest, then there is no actual threat that Troup’s recovery will be reduced a second time. Fischer argues that juries may apportion fault to employers when there is not an actual threat of a double reduction of a particular plaintiff’s recovery. We  disagree. 

A complaint against the State of Tennessee has just been dismissed because the plaintiff alleged that a state trooper may have committed negligence but did not affirmatively allege that the trooper was negligent.  The Court of Appeals affirmed the dismissal stating that it did not state a cause of action.  The case is Rogers v. State,  No. M2006-2353-COA-R3-CV  (Tenn. Ct. App. August 2, 2007).  Read the opinion here.

Plaintiff filed the complaint in response to an allegation of fault by a defendant.  Clearly the plaintiff did not want to sue the state (read: the trooper) but felt she had to and do so within the time period prescribed by T. C.A. Sec. 20-1-119.

So what do you do?  You plead the case against the new defendant like this:  "Based solely on the allegations of Defendant X, Plaintiff alleges that …."  That tactic permits you to allege fault but not have the defendant’s theory attributed to you or, worse yet, have your case dismissed.

Justice Holder has released on new comparative fault opinion on behalf of the Tennessee Supreme Court.

Austin had a one-car accident and sued Fayette County for negligently maintaining the roadway. Fayette County said this in its answer:

"the traffic sign in question was not placed there by the Defendant, Fayette County, Tennessee; that it is in the right of way of the State of Tennessee; that it is under the control of the State of Tennessee; that Fayette County, Tennessee has no control over said stop sign, its placement, maintenance, etc[.] and that it cannot be held liable for the stop sign regardless of its condition."

Under Tennessee law fault cannot be assigned to a plaintiff’s employer but the defendant is permitted to prove and argue that the employer was the cause in fact of the injury.

But what if the defendant wants to ask the jury to apportion fault to an entity that is deemed an employer under Tennessee worker’s compensation law and therefore obtains the benefit of immunity from suit by the plaintiff?  Can the statutory employer be assigned fault even though the plaintiff cannot sue it?

In a case of first impression, the Court of Appeals (Western Section) says "yes" in Troup v. Fischer Steel Corp., No. W2005-00913-COA-R3-CV  ( August 10, 2006) and in doing so reversed a $500,000+ verdict for the plaintiff. The court ruled that the Trial Court erred when it failed to permit the steel subcontractor defendant from proving and arguing the fault of the general contractor in a personal injury case filed by the employee of the roofing subcontractor.

A decision released yesterday by the Court of Appeals confuses me greatly.  Defendant 1 blamed Nonparty in an answer.  Plaintiff sued Nonparty, who then became Defendant 2.  Defendant 2 moved to dismiss, saying  inter alia that the complaint against it was barred by the statute of repose.  Then, according to the opinion, Defendant 2 said that "argued that Tennessee’s  comparative fault joinder statute, which would operate to toll the three-year statute of repose, was  inapplicable in the current litigation."

Well, I sure hope that Defendant 2’s lawyers did not say that because that is not the law.  In fact, it is 180 degrees wrong. 

T.C.A. Sec. 20-1-119 has a dangerous subsection  and this is as good of time to talk about it as any.  Subsection  (b) of the statute says as follows: "A cause of action brought within ninety (90) days pursuant to subsection (a) shall not be barred by any statute of limitations. This section shall not extend any applicable statute of repose, nor shall this section permit the plaintiff to maintain an action against a person when such an action is barred by an applicable statute of repose." (Emphasis added).

Here is a link to an article I wrote for the Tennessee Bar Journal about a recent opinion discussing T.C.A. Sec. 20-1-119. Go to the link and locate the article and you will find a link to the article in the “Table of Contents” on the left side of the page. The column is titled, “You Sunk My Lifeboat!”

The Tennessee Supreme Court ruled on Friday that the failure of a plaintiff to get leave to amend a complaint before adding a nonparty as a defendant to not permit the newly-added party to raise the statute of limitations as a bar.

Key to the holding was the fact that the plaintiff got permission to amend after serving the “amended complaint” on the new defendant.

The holding: “When a plaintiff utilizes section 20-1-119 to amend a complaint to name a nonparty as a defendant, the plaintiff must first seek permission of the trial court or adverse parties as provided by Tennessee Rule of Civil Procedure 15.01. However, on the facts of this case, failure to file the motion to amend before filing the amended complaint and securing service of process is not fatal when all requirements of Rule 15.01, including the trial court’s grant of the motion to amend, occur within the ninety-day window created by section 20-1-119. Plaintiff has substantially complied with Rule 15.01 of the Tennessee Rules of Civil Procedure and should be allowed to amend her complaint to add Defendant as a party.”