Articles Posted in Comparative Fault

The Eastern Section of the Tennessee Court of Appeals has ruled that comparative fault applies to cases tried under a nuisance theory.

According to the opinion, “[t]he Complaint alleged that plaintiffs and defendants own adjoining property and that defendants constructed a private road on their property through an area of natural drainage adjoining the Plaintiffs’ property. Further, that the road “impeded and/or altered the natural flow of rainwater runoff such that the private road acts as a dam.” The road caused damage to Plaintiff’s home and personal property. Plaintiff brought a nuisance action.

The Court said that “a nuisance action based upon a “wrongful” interference with the natural drainage of surface water necessarily involves fault because such an interference is an act violating the plaintiff’s property rights and imposing liability upon the defendant. Because such an action necessarily involves fault, applying principles of comparative fault is in keeping with McIntyre’s principle of linking liability with fault.”

The Supreme Court of South Dakota has ruled that in a civil action arising out of the decedent’s death by suicide the jury should have been instructed to “evaluate the effect of [the decedent’s] mental incapacity in judging [the decedent’s] contributory negligence.” Because the jury was instructed to use the typical “reasonable person standard” a verdict for the defendant was reversed.

The Court cited with approval the following language from the North Dakota instructions: “If the patient’s capacity for self care is so diminished by mental illness that it is lacking, we agree that an allocation of fault is not appropriate. . . In making the fault comparison, the factfinder should always take into account the extent of the patient’s diminished mental capacity to care for his own safety.”

With several important limitations, T.C.A. ㋔ 20-1-119 permits a plaintiff to add parties defendant to a case even if the statute of limitations has expired. The triggering event for adding nonparties as parties is typically language in the defendant’s answer or amended answer.

Rather than waiting for the defendants to get around to blaming others, try to force the issue by using the following interrogatory:

Do you contend that any person or entity other than yourself caused or contributed to cause plaintiff’s [insert appropriate word] as alleged in the complaint? If so, please state (a) the identify of each such person; (b) what you contend he or she did (or did not do) to cause or contribute to cause the injuries; and (c) identify any documents or things that support your contention.

Can a plaintiff who may be at fault assert res ipsa loquitur in a jurisdiction that has adopted comparative negligence?

The Eighth Circuit Court of Appeals recently examined this issue under Iowa law. The Court held that the Iowa Supreme Court would not require a plaintiff to disprove his or her own fault in order to rely on res ipsa. The decision is McGuire v. Davidson Manufacturing Company; to read the opinion click here.

The opinion does a nice job collecting case law from around the country on this subject. Of course, the opinion is not binding precedent on Tennessee but it will give you a good head start for your research on this issue.