Comparative Fault and ‘Get Out of Jail Free’ Cards

A recent decision of the Tennessee Court of Appeals reminds us of the interaction between our law of comparative fault and the legislature’s gift of “get out of jail free cards” (immunity and partial immunity) to certain special interest groups.

Edna Green was hurt on a church-sponsored bus ride to a local farm. The bus, driven by a fellow parishioner, hit some berms on the farm road causing severe injury to Ms. Green. Ms. Green sued her church, and the church asked in its answer to the complaint that fault be assigned against the farm. Ms. Green elected not to sue the farm, and went to trial only against her church.1

The jury found the church 15 percent at fault and allocated the remainder of the fault to the farm. However, the legislature granted immunity (under most circumstances) to farming-related operations that fall within the definition of “agritourism activity.”2 The collective impact of the farm’s immunity and the law of several liability meant that Ms. Green could collect only 15 percent of her damages. The Court of Appeals affirmed.

This result was mandated by two Tennessee Supreme Court decisions of 18 years ago. The first decision, Carroll v. Whitney, allowed fault to be assigned to a non-party governmental entity protected from certain types of claims under the Governmental Tort Liability Act.3 The second decision, Dotson v. Blake, allowed a fact-finder to assign fault to a non-party entity, which was immunized from suit by the four-year statute of repose that protects those involved in the creation and building of improvements to real property from being held responsible for their negligence.4

So, except for two exceptions described below, Tennessee law (a) permits defendants to shift fault to a person or entity that a plaintiff is prohibited by law from suing: and (b) after the law of several liability is applied to the fault allocation, the economic consequences of the legislative grant of immunity fall entirely on the plaintiff.5

The first exception to the general rule is if the nonparty blamed is the employer or co-worker of the plaintiff, no fault percentage can be assigned to the employer or co-worker.6 (However, the defendant can argue that the fault of an employer or co-employee is the sole cause of the plaintiff’s injury or death and, if it proves its sole causation defense, it will escape liability.)7

The second exception is fault cannot be apportioned to a person not in the business of selling alcohol that inappropriately furnishes alcohol to another.8 How can this be the law? Because Tenn. Code Ann. § 57-10-101 provides that “the consumption of any alcoholic beverage or beer rather than the furnishing of any alcoholic beverage or beer is the proximate cause of injuries inflicted upon another by an intoxicated person.”

Thus, since the stated public policy of Tennessee is that furnishing alcohol cannot be the cause of injury or death, then one cannot find the furnisher to be at fault because fault cannot arise in the absence of a combination of negligence and causation.9 Fault arises when negligent acts or omissions are the legal cause (and therefore by definition a cause-in-fact) of an injury or death. Since the legislature has declared that furnishing alcohol cannot be a legal cause of injuries or death, one furnishing (but not selling) alcohol cannot be legally found to be at fault.10

Who Else Gets the Card?

Which other classes of individuals, entities and activities have received grants of partial or complete immunity and thus, as non-parties, may be assigned fault that may impact the financial recovery of a plaintiff? The very long list includes the following:
(a) local governments under the Governmental Tort Liability Act;11
(b) the State of Tennessee under the Board of Claims Act;12
(c) beekeepers;13
(d) adventure tourism activities;14
(e) agritourism;15
(f) bovine owners;16
(g) certain equine activities;17
(h) whitewater rafting;18
(i) skiing operations;19
(j) ice skating rinks;20
(k) whitewater activities;21
(l) epinephrine administration;22
(m) first responders;23
(n) mental health admissions;24
(o) property owners for recreational use of land;25
(p) claims involving trespassers;26
(q) transportation projects;27
(r) free clinic healthcare;28
(s) dispensers of previously owned eyeglasses;29
(t) certain drivers of the elderly;30
(u) property owners for failure to prohibit weapons on  property;31
(v) property owners for liability to those committing felonies;32
(w) coaches: liability for sudden cardiac death;33
(x) charitable fundraisers;34
(y) donators of fire equipment;35
(z) officers and directors of certain nonprofit organizations;36
(aa) administration of opioid antagonist;37
(bb) acts of “good Samaritans”;38
(cc) officers and directors of for-profit organizations;39
(dd) those benefiting from statutes of repose, including accountants,40 lawyers,41 health care providers,42 those in the construction industry,43 surveyors,44 sellers of securities,45 product manufacturers,46 certain airplane and component parts manufacturers;47 therapists accused of sexual misconduct;48 and
(ee) inmate work.49

So, what is the reasonably prudent plaintiff’s lawyer to do in cases where the defendant is likely to allege fault of a non-party that has immunity falling within the grant of protection offered by Carroll and Dotson?

First, counsel should carefully investigate the facts and determine whether (a) any preconditions to the grant of immunity have been satisfied by the nonparty and (b) whether the immunity granted is complete or partial. For instance, under the act that impacted Ms. Green, there is no immunity if the property owner failed to install certain warning signs and, even if the signs are posted, there is liability under certain limited circumstances.50 After the facts are gathered, a judgment should be made whether there is a good faith basis to add the immune party as a party defendant and seek a fault allocation for conduct for which the person or entity can be held liable.

Second, if the decision is made that one cannot or should not also sue the non-party who benefits from immunity, the plaintiff will essentially have to defend the acts and omissions of the non-party. How? By forcing the defendant alleging fault against the non-party to actually prove its affirmative defense; i.e., demonstrate that the non-party negligently contributed to the injury or death of plaintiff. Practically speaking, this requires plaintiff’s counsel to represent the non-party (to minimize the non-party’s fault) as well as the plaintiff.

Finally, plaintiff’s counsel may decide to decline representation of plaintiff if the likely fault of the immune nonparty is so great that, when coupled with the impact of several liability, (a) there will be no meaningful recovery to the plaintiff (after subrogation interests, fees, and expenses); and/or (b) the lawyer’s work and advanced expenses necessary to achieve the result makes the case economically unfeasible for the lawyer.

One can debate the wisdom of grants of immunity — of a public policy to excuse negligence of those who engage in certain types of activities or because of the mere passage of time (pursuant to statutes of repose). One can also debate the wisdom of applying several liability in such cases, resulting in an adverse impact to the injured plaintiff (even a plaintiff free from fault). But one cannot debate that (a) any defense lawyer worth his or her salt will try to find a way to blame not only an empty chair but a chair-that-cannot-be-filled;51 and (b) any plaintiff’s lawyer worth his or her salt
will take that into account in case selection decisions.


A regular columnist of this magazine, John A. Day is a plaintiff’s personal injury and wrongful death lawyer with offices in Brentwood, Murfreesboro and Nashville. He currently serves as regent in the American College of Trial Lawyers. His latest endeavor seeks to expand the definition of “bovine activities” in  Tenn. Code Ann. Sec. 44-1-101(1) to include his written and oral communications.



 

 

Notes
1. Green v. St. George’s Episcopal Church, No. M2017-00413-COA-R3-CV (Tenn. Ct. App. Nov. 16, 2018).
2. Tenn. Code Ann. § 43-39-101 et seq.
3. Carroll v. Whitney, 29 S.W.3d 14, 21 (Tenn. 2000).
4. 29 S.W.3d 26,I29 (Tenn. 2000). It is the author’s opinion that the application of a statute of repose is in essence a grant of immunity triggered by the passage of a defined amount of time.
5. The Carroll and Dotson decisions were essentially codified in Tenn. Code Ann. § 29-11-107 (where subsection (d) makes several liability the general rule under the conditions stated therein and subsection (s) allows for the allocation of fault to immune parties).
6. Snyder v. LTG Lufttechnische GmbH, 955 S.W.2d 252, 256 (Tenn. 1997); Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 82 (Tenn. 1996). The rule was also applied in Troup v. Fischer Steel Corp., 236 S.W.3d 143 (Tenn. 2007).
7. Id.
8. Biscan v. Brown, 160 S.W.3d 462, 474 (Tenn. 2005).
9. Id.
10. There is an exception for those in the business of selling alcoholic beverages. Tenn. Code Ann. Sec. 57-10-102.
11. Tenn. Code Ann. §. 29-20-101 et seq.
12. Tenn. Code Ann. § 9-8-301 et seq.
13. Tenn. Code Ann. § 44-15-125.
14. Tenn. Code Ann. § 11-11-201 et seq.
15. Tenn. Code Ann. § 43-39-101 et seq.
16. Tenn. Code Ann. § 44-21-101 et seq.
17. Tenn. Code Ann. § 44-20-101 et seq.
18.  Tenn. Code Ann. § 70-7-201 et seq.
19. Tenn. Code Ann. § 68-114-101 et seq.
20. Tenn. Code Ann. § 39-34-401 et seq.
21. Tenn. Code Ann. § 70-7-201 et seq.
22. Tenn. Code Ann. § 68-140-601 and Sec. 63-1-158.
23. Tenn. Code Ann. § 29-34-203 (immunity limited to access to home or business; not applicable to provision of care).
24. Tenn. Code Ann. § § 33-6-407, 33-6-901.
25. Tenn. Code Ann. § 70-7-104 et seq.
26. Tenn. Code Ann. § 29-34-208.
27. Tenn. Code Ann. § 54-5-145.
28. Tenn. Code Ann. § 63-6-708.
29. Tenn. Code Ann. § 63-6-711.
30. Tenn. Code Ann. § 29-34-210.
31. Tenn. Code Ann. § 39-17-1325.
32. Tenn. Code Ann. § 29-34-101.
33. Tenn. Code Ann. § 68-6-101 et seq.
34. Tenn. Code Ann. § 29-34-204.
35. Tenn. Code Ann. § 29-34-206.
36. Tenn. Code Ann. § 48-58-601.
37. Tenn. Code Ann. § 63-1-157.
38. Tenn. Code Ann. § 63-6-218.
39. Tenn. Code Ann. § 48-18-601.
40. Tenn. Code Ann. § 28-3-104
41. Id.
41. Tenn. Code Ann. § 29-26-116 (a).
43. Tenn. Code Ann. § 28-3-201 et seq.
44. Tenn. Code Ann. § 28-3-114.
45. Tenn. Code Ann. § 48-1-122(h).
46. Tenn. Code Ann. § 29-28-103 (c) (2).
47. General Aviation Revitalization Act, PL 103-298.
48. Tenn. Code Ann. § 29-26-208. This list of persons, entities and activities who are granted immunity in whole or in part is not exhaustive.
49. Tenn.Code Ann. Sec. 41-2-143 (d).
50.  Tenn. Code Ann. § 43-39-103 requires warning signs. Subsection (c) provides that immunity is not extended to those that do not provide the signs. Section 43-39-102 provides that immunity does not extend to certain acts or omissions.
51. The distinction is this: An empty chair is a chair at the defendant’s table in the courtroom that plaintiff has left empty because of a settlement or a decision not to sue a potential party. A chair-that-cannot-be-filled is a chair that would have been occupied by a defendant but for a law that does not permit a plaintiff to file suit.

 

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