Day on Torts
Tennessee Rules of Civil Procedure 8.02 and 8.03 set out the basic requirements for defenses asserted in an answer. One critical requirement is that a defendant wishing to assert an affirmative defense must state in short and plain terms the facts in support of that defense, “including the identity or description of any other alleged tortfeasors” that the defendant wishes to blame by comparative fault. The Tennessee Supreme Court has made clear that pleading comparative fault requires providing sufficient information in the answer to allow the plaintiff to plead and serve process on the person pursuant to Tenn. Code Ann. sec. 20-1-119. Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn. 2000).
If a defendant attempts to plead an affirmative defense without providing the information required by Tenn. R. Civ. P. 8.02, a plaintiff should file a motion to strike those portions of the answer. The plaintiff needs to know who the defendant is going to blame before the defendant submits a proposed jury form listing those persons, and needs to know the basis for the comparative fault in order to conduct discovery and decide whether to bring the other party in by 20-1-119. Even if the defendant is blaming the plaintiff, the plaintiff should be informed of the basis for that comparative fault allegation to have the opportunity to rebut the defendant’s argument. This is a standard Memorandum of Law in Support of a Motion to Strike comparative fault defenses that lack sufficient information.
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Note that the Court of Appeals for the Middle Section ruled that the State of Tennessee does not have “discretionary function immunity” in an extremely thoughtful and well-reasoned 2004 opinion, Lucas v. State. The Tennessee Supreme Court also denied the State’s requested appeal and designated the opinion for publication.