Impact of Significant December 18, 2013 Tennessee Supreme Court Premises Liability Ruling, Cullum v. McCool

A very important Tennessee Supreme Court ruling was published yesterday, December 18, 2013.  I believe this new opinion, Jolyn Cullum v. Jan McCool, 2013 WL 6665074, No. E2012-00991-SC-R11-CV (Tenn. 2013), will be talked about for years to come.  I also believe it could cause the Tennessee legislator to consider legislation to address this expansion of the potential liability of a premises owner when dealing with an intoxicated individual.  Ironically, I very recently wrote an article about the other important case on this issue, West v. East TN Pioneer Oil Co., 172 S.W.3d 545 (Tenn. 2005) (See Tennessee Defense Litigation post “Negligence – Can a gas station be liable for selling gas to an intoxicated individual who later causes an accident in Tennessee?”).  This new Cullum decision, in my opinion, expands the holding in the West case and places additional burdens on premises owners to take affirmative actions when dealing with intoxicated individuals even if those individuals did not become intoxicated on the premises.

FACTS:

In the Cullum case the plaintiff was struck by a vehicle in a Wal-Mart parking lot by another Wal-Mart customer.  The plaintiff had just finished shopping and was placing her groceries inside the trunk when she was struck.  Just before the accident, defendant, Ms. McCool, is alleged to have been ordered to leave the store when she attempted to fill a medication prescription.  She was allegedly ordered to leave because Wal-Mart employees believed Ms. McCool was intoxicated.  The complaint further alleges that Wal-Mart knew Ms. McCool was someone who had been in the store intoxicated on prior occasions and they knew she was alone and would be operating a motor vehicle.  ...

Is a Manufacturer or Seller’s Compliance with Statutes and Administrative Regulations a Defense in a Tennessee Product Liability Cause of Action?

Analysis:  A manufacturer or seller’s compliance with federal or state statutes and regulations can have a significant impact on a product liability cause of action.  Compliance with statutes and regulations pertaining to the product can provide a rebuttable presumption that the product is not in an unreasonably dangerous condition for the matter specifically covered in the statute or regulation.  This is limited to situations where the statute or regulation pertains to the “design, inspection, testing, manufacture, labeling, warning or instructions for use of a product.”  T.C.A. § 29-28-104(a) provides as follows:

(a) Compliance by a manufacturer or seller with any federal or state statute or administrative regulation existing at the time a product was manufactured and prescribing standards for design, inspection, testing, manufacture, labeling, warning or instructions for use of a product, shall raise a rebuttable presumption that the product is not in an unreasonably dangerous condition in regard to matters covered by these standards.

An amendment to this statute that took effect October 1, 2011 provided additional protections to manufacturers or sellers that comply with product specific statutes and regulations.  A manufacturer or seller (other than the manufacturer of a drug or device) is not liable for exemplary or punitive damages if:

(1) The product alleged to have caused the harm was designed, manufactured, packaged, labeled, sold, or represented in relevant and material respects in accordance with the terms of approval, license or similar determination of a government agency; or

(2) The product was in compliance with a statute of the state or the United States, or a standard, rule, regulation, order, or other action of a government agency pursuant to statutory authority, when such statute or agency action is relevant to the event or risk allegedly causing the harm and the product was in compliance at the time the product left the control of the manufacturer or seller.

(See T.C.A. § 29-28-104(b)).  This exemption from exemplary or punitive damages...

What is an Additur and When can it be Applied to Change a Jury Verdict in Tennessee?

Analysis:  Judges in Tennessee are often called the “thirteenth juror” because they have the ability to modify a jury’s verdict.  One such way they can change a jury verdict is under T.C.A. § 20-10-101 which provides for an “additur” which simply means the judge can add an amount to the damages that are awarded by a jury.  Specifically, T.C.A. § 20-10-101(a)(1) provides as follows:

(a)(1) In cases where, in the opinion of the trial judge, a jury verdict is not adequate to compensate the plaintiff or plaintiffs in compensatory damages or punitive damages, the trial judge may suggest an additur in such amount or amounts as the trial judge deems proper to the compensatory or punitive damages awarded by the jury, or both such classes of damages.

As a result, if the trial judge considers the jury verdict to be inadequate to compensate the plaintiff, then the judge can suggest an amount to add to the compensatory or punitive damages awarded by the jury.  If this occurs, the defendant has the option to simply accept the additur and then it is considered to be the verdict of the court.  Specifically, T.C.A. § 20-10-101(a)(2) provides as follows:

(2) If the additur is accepted by the defense, it shall then be ordered by the trial judge and become the verdict, and if not accepted, the trial judge shall grant the plaintiff's motion for a new trial because of the inadequacy of the verdict upon proper motion being made by the plaintiff.

If the defendant does not accept the additur, then the trial judge is required to grant the plaintiff’s motion for a new trial and the new trial can then proceed.  The defendant also has the option to appeal the judge’s additur to the Tennessee Court of Appeals.  Specifically, T.C.A. § 20-10-101(b)(1) provides as follows:

(b)(1) In all jury trials had in civil actions, after the verdict has been rendered and on motion for a new trial, when...

Negligence - Can a gas station be liable for selling gas to an intoxicated individual who later causes an accident in Tennessee?

Analysis:  Over eight years ago the Tennessee Supreme Court handed down the decision of West v. East Tennessee Pioneer Oil Co., 172 S.W.3rd 545 (Tenn. 2005).  This case set new precedent at that time and it is a good case to review because of the impact it can have on many negligence situations.  It primarily discussed and considered the foreseeability element in a negligence case.

In West, an individual who had been drinking alcohol on the night in question purchased gas from a convenience store gas station.  There were some disputed facts, however, it was plaintiff's contention that this individual was clearly intoxicated and the convenience store employees knew he was intoxicated when they sold him gas.  Additionally, an off-duty employee of the store actually assisted the intoxicated individual by pushing the correct buttons on the gas pump in order to activate the pump.  There was a dispute about whether all of these individuals knew the allegedly intoxicated individual was in fact intoxicated and whether or not he was the actual driver of the vehicle.  After the vehicle left the gas station, it struck another vehicle, causing severe injuries to the plaintiffs. 

The trial court dismissed the cause of action against the gas station.  The trial court basically found that under Tennessee law, the plaintiffs could not hold the convenience store liable under these circumstances.  On appeal, the Tennessee Supreme Court reversed this decision and found that:

we conclude that a convenience store employee owes a duty of reasonable care to persons on the roadways, including the plaintiffs, not to sell gasoline to a person whom the employee knows (or reasonably ought to know) to be intoxicated and to be the driver of the motor vehicle. Similarly, a convenience store employee also owes a duty of reasonable care not to assist in providing gasoline (in this case pumping the gasoline) to a person whom the employee knows (or reasonably ought to know) to be intoxicated and to be the driver of the motor vehicle. We stress that because [f]oreseeability is the test of negligence...