Day on Torts
Recently, the Tennessee Court of Appeals reviewed the case of Lake v. The Memphis Landsmen in its third trip to the court. A number of issues were raised in the appeal, but by far the most interesting one concerned the plaintiffs’ contention that the trial court erred in including a non-party who plaintiffs previously settled with on the jury verdict form. The plaintiffs also contended that to the extent the non-party was properly included on the form, the trial court should have instructed the jury on the effect of allocating negligence to the non-party. Why is this issue important to the plaintiffs? Because the jury handed down an $8,543,530 verdict but attributed 100% fault to the non-party.
This case concerned a wreck between a passenger bus and a concrete truck. The concrete truck took a left turn and struck the bus causing it to collide with a light pole and eject the plaintiff and resulting in a traumatic brain injury to the plaintiff. The plaintiffs settled with the concrete truck defendant before trial and then proceeded to trial against several other defendants on various theories of liability concerning the passenger bus.
In this appeal, the Court of Appeals first explained that Tennessee has a system of modified comparative fault, adopted by the Tennessee Supreme Court in 1992 in the landmark case of McIntyre v. Balentine, 833 S.W.2d 52,56 (Tenn. 1992). Under this system, fault is apportioned among all parties in proportion to their degree of culpability, and a defendant is only liable for the percentage of damages that his or her own negligence caused. In McIntyre, the court also adopted the non-party defense, allowing juries to apportion fault to non-parties with culpability. McIntyre, 833 S.W.2d at 58.
The plaintiffs attempted to argue that the settling defendant should not have been included on the verdict form because the case involved two separate impacts – one between the concrete truck and the passenger bus, and one between the bus and the light pole. The plaintiffs contended that it was the second impact that proximately caused the plaintiff’s traumatic brain injury, not the impact between the concrete truck and the bus.
The Court of Appeals explained the two kinds of causation that a plaintiff must prove in order to prevail on a negligence claim – cause in fact, or “but-for” causation, and proximate cause. As the court explained, “[c]ause in fact means that the injury would not have occurred ‘but-for’ the negligent conduct.” Proximate cause, on the other hand, concentrates on three factors:
(1) whether the tortious conduct was a substantial factor in bringing about the harm complained of; (2) whether there is some rule or policy that should relieve the wrongdoer of liability because of the manner in which the tortious act resulted in the harm; and (3) whether the harm could have been reasonably foreseen or anticipated by a person of ordinary intelligence and prudence. (citing Hale v. Ostrow, 166 S.W.3d 713, 719 (Tenn. 2005).
The Court of Appeals found that all three factors were met with regard to the concrete truck – it was a substantial factor in bringing about the plaintiff’s injuries, the plaintiffs did not cite any rule or policy to relieve the concrete truck of liability, and the plaintiff’s injuries were a reasonably foreseeable result of the concrete truck’s negligence. Thus, the court held that the concrete truck should have been included on the verdict form.
The court then turned to the plaintiffs’ argument that the trial court should have charged the jury about the effect of a finding of fault on the part of the concrete truck. Because the jury apportioned all of the fault to the concrete truck and since the plaintiffs had already settled with the concrete truck, the plaintiffs were unable to recover any of the awarded damages of more than $8.5 million.
The plaintiffs argued that McIntyre supports their position because in McIntyre the court states that “the trial court shall instruct the jury on the effect of the jury’s finding as to the percentage of negligence as between the plaintiff or plaintiffs and the defendant or defendants.” McIntyre, 833 S.W.2d at 57. However, the court disagrees finding that this language only provides that the jury should learn the effect of allocating fault between plaintiffs and defendants, not defendants and defendants. The court explains that if the jury were to know that a plaintiff could not recover the full award from one defendant, the jury might allocated more fault to another negligent actor. The Court of Appeals therefore found no error in the trial court’s decision not to instruct the jury on the effect of allocating fault to the concrete truck.
My memory is that this is the first Tennessee Court of Appeals opinion on the issue of whether the jury should be instructed of the effect of finding of "0%" of fault. The Tennessee Supreme Court will be asked to hear this case.