TBA Law Blog

Posted by: John Day on Oct 23, 2009

Journal Issue Date: Nov 2009

Journal Name: November 2009 - Vol. 45, No. 11

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.

The guests at the party are known as defendants, and they have the right to open the door to (but not admit) other invitees. How? By alleging in an answer or amended answer the fault of a person who has not yet received an invitation to the party. A new decision authored by Judge Holly Kirby of the Western Section of our Court of Appeals makes it clear that Rule 8.03 of the Tennessee Rules of Civil Procedure means what it says and that such allegations must set forth with particularity the facts supporting the allegation of fault of the non-party.[1] A defendant who does not make an allegation with the specificity required by Rule 8.03 faces a motion to strike the defense[2] or a potential loss of the defense.

A plaintiff who reads the answer or amended answer and sees a defendant's suggestion that a party invitation be extended to a non-party does not have to extend the invitation. Plaintiff may determine that he does not want the non-party at the party. If no invitation is extended by the filing of a new complaint and summons, plaintiff knows that the other guests will say all sorts of nasty things about the absent guest, and assumes the risk that a jury will find the uninvited guest at fault. If several liability is applicable, that plaintiff's damages will be reduced by the uninvited guest's percentage of fault.[3]

Not every person the defendant thinks should be invited can be invited to the party by the plaintiff, even if the plaintiff and defendant would like them to be present. Certain potential guests are protected by statutes of repose, and they cannot get a valid invitation even if everyone thinks they should be at the party.[4] Other potential guests are otherwise immune from suit, and they cannot be forced to attend the party.[5] Some invited guests will not attend because they are from another state and cannot be required to come to a party in Tennessee.[6] And a potential guest who was not among the original invitees for invitations extended within the statute of limitations cannot be forced to attend the party if not invited within 90 days of the date of the filing of the answer or amended answer.[7]

A plaintiff also loses the right to invite attendees suggested by a defendant if the lawsuit was commenced under the savings statute.[8] Prudent lawyers who must voluntarily dismiss a case in which comparative fault is an issue must use their best efforts to determine that all party invitations have been extended and served before dismissing the case.

So how does a plaintiff increase the likelihood that the party goes off on the planned date and that those that the law permits to be present and plaintiff desires to be present actually show up on time? By the use of a scheduling order under Rule 16 of the Tennessee Rules of Civil Procedure. In every case involving comparative fault, the judge should enter a scheduling order that includes a deadline for the defendant to say, as required by Rule 8, who it thinks should be invited to the party. If requested in a timely fashion by plaintiff, this deadline should be well before the expiration of any statute of repose applicable to a potential invitee.

Why is this important? The goal of the civil justice system is to have a timely party date available to the host and the invitees. It is the job of the trial judge, on request, to cutoff the invite list because guests invited too late will attempt to move the party date. Plaintiffs and defendants have an obligation to do an investigation to determine who the potential guests should be. A firm deadline for identifying potential guests, extended only if the information about a potential guest could not have been reasonably discovered before the deadline, is essential to having a party take place on the planned date.

A trial is a party no one in their right mind wants to attend. Yet, appropriate use of Rule 8 and Rule 16, coupled by diligence of the lawyers and the trial judge, can help ensure that the party goes off as scheduled with attendees that have not been excused by legislative grants of immunity. Party on.


1. Allgood v. Gateway Health Systems, No. MC-CC-CV-MA-06-391 (Tenn. Ct. App. Sept. 22, 2009).

2. Rule 12.06 of the Tennessee Rules of Civil Procedure permits a trial judge to strike "insufficient" defenses.

3. Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 84 (Tenn. 1996).

4. Dotson v. Blake, 29 S.W.3d 26, 29 (Tenn.2000). Tenn. Code Ann.  §20-1-119(b) provides that the statute cannot be used to extend a statute of repose. Thus, if the statute of repose against a potential defendant at the time the suit was first filed, but expired before the plaintiff sought to add that party as a defendant,  §20-1-119 does not "trump" the statute of repose.

5. Carroll v. Whitney, 29 S.W.3d 14, 19 (Tenn. 2000). Special rules apply when the entity immune from suit is the plaintiff's employer. Troup v. Fischer Steel Corp., 236 S.W.3d 143, 144-45 (Tenn. 2007).

6. See, e.g., Volz v. Ledes, 895 S.W.2d 695 (Tenn. 1995).

7. Tenn. Code Ann.  §20-1-119. For reasons that cannot be readily understood, the federal courts interpret this statute much differently than state courts. The difference between the federal court and state court views is explained in Day, Capparella and Wood, Tennessee Law of Comparative Fault  § 5.5, p. 65-66 and 70 (3rd ed. 2008).

8. Tenn. Code Ann.  §20-1-119(d).

John A. Day JOHN A. DAY, a trial lawyer in Brentwood, likes to party and in fact has been a party planner for over 28 years. He regularly discusses party planning and other aspects of being a torts lawyer at his blog, www.dayontorts.com.