TBA Law Blog

Posted by: John Day on Apr 27, 2010

Journal Issue Date: May 2010

Journal Name: May 2010 - Vol. 46, No. 5

The Tennessee Supreme Court's opinion in Banks v. Elks Club Pride of Tennessee 1102 [1] is full of lots of interesting things, one of which can be addressed in the space provided for this article. The Banks Court delivered a death blow to the odd notion that the affirmative defense of comparative fault of a nonparty should be treated differently than any other affirmative defense and that the party asserting it did not have the burden of proof.

How some came to think that the pleading of comparative fault of a nonparty was a different breed of affirmative defense is somewhat of a mystery. The McIntyre v. Ballentine opinion told us that "fairness and efficiency require that defendants called upon to answer allegations in negligence be permitted to allege, as an affirmative defense, that a nonparty caused or contributed to the injury...."[2] Rule 8.03 of the Tennessee Rules of Civil Procedure was promptly modified after McIntyre to include the words "comparative fault (including the identity or description of any other alleged tortfeasors)" among the laundry list of affirmative defenses. And, everyone has known for decades that the party asserting an affirmative defense bears the burden of proof on that defense.[3]

It appears that some might have hoped that the affirmative defense and associated burden of proof simply "disappeared" if, after a defendant alleged the fault of the nonparty, the plaintiff elected to sue the nonparty and make it a party. But the Tennessee Supreme Court effectively dashed such hopes when it adopted the amendments to Rule 50.01 of the Tennessee Rules of Civil Procedure in 1998, saying that a court should "reserve ruling [on a motion for directed verdict] until all parties alleging fault against any other party have presented their respective proof-in-chief." This rule change sent an unambiguous signal that the fact that a plaintiff sued the former nonparty did not remove the responsibility of the defendant to prove fault.[4]

Notwithstanding the absence of any law to support their position,[5] some still argued that the defendant's obligation to prove an affirmative defense faded away when the plaintiff sued the nonparty. Banks eviscerated the argument, holding that a defendant that blamed a subsequent health care provider for negligence retained the burden of proving the fault of that provider even though the plaintiff sued the provider.[6]

So, how will all of this work in real life? Justice Koch explained this in footnote 14 of the Banks opinion:

[I]f a plaintiff amends its complaint to add a new defendant identified by the original defendant as contributing to the plaintiff's indivisible injuries, trial courts would not act on the new defendant's motion for a directed verdict until the close of all the proof in order to permit the original defendant to present its evidence regarding the new defendant's fault. A directed verdict at the close of the plaintiff's proof would be appropriate only when the original defendant states that it lacks sufficient evidence to send the issue of the new defendant's fault to the jury. If the new defendant's motion for directed verdict is granted, the jury cannot be requested to allocate any portion of the fault to the now-dismissed defendant.[7]

What happens if the plaintiff elects not to sue the nonparty or cannot sue the nonparty? The defendant or defendants who allege fault still have the burden of proving the nonparty fault, and, if they fail to do so, the plaintiff can and should move for a directed verdict at the close of the defendant's proof.[8]

As indicated above, this holding is not news to anyone except those who clung to irrational hope that the Tennessee Supreme Court would someday hold that one type of affirmative defense should be treated differently than every other affirmative defense. However, the Court rightly seized upon the opportunity to set the record straight, permitting lawyers and trial judges to focus their time on issues truly in controversy.


  1. 301 S.W.3d 214 (Tenn. 2010).
  2. McIntyre v. Ballentine, 833 S.W.2d 52, 58 (Tenn. 1992) (emphasis added).
  3. See, e.g. City Nat. Bank v. Barnes, 51 S.W.2d 503, 505 (Tenn. 1932).
  4. The same is true with regard to the allocation of fault of a co-defendant. A defendant alleging fault of a co-defendant must be prepared to offer proof of the fault of that defendant if the plaintiff fails to do so in the event defendant wants the factfinder to assign some portion of fault to the co-defendant.
  5. Some argued that cases like Guffey v. Wenco of Shelbyville Inc. 1997 WL 49159, at *4 (Tenn. Ct. App. Feb. 7, 1997) held to the contrary. Guffey did say that the adoption of comparative fault did not alter the burden of proof ordinarily on a plaintiff, but the decision did not even mention that the defendant alleged fault against a nonparty. Thus, Guffey did not address the issue of what happens to the burden of proof when nonparty fault is alleged, much less change decades of law that places the burden of proof on one who asserts an affirmative defense.
  6. 301 S.W.3d at 225.
  7. Id. at 225, fn. 14.
  8. For additional discussion on nonparty pleading and practice, read J. Day, "Party Planning for Tort Lawyers," Tennessee Bar Journal vol. 45, no. 11 (November 2009).

John A. Day JOHN A. DAY is a trial lawyer in Brentwood, Tennessee. The latest edition of his book, Day on Torts: Leading Cases in Tennessee Tort Law, available in hardcover in April 2010. He is also the editor of Tennessee Trial Law Report, a monthly newsletter on the law of torts, civil procedure, evidence, and trial law.