Can a Plaintiff Sue Tortfeasor Outside of Statute of Limitations (Under T.C.A. § 20-1-119) When Defendant Asserts Comparative Fault Against Previously Known Tortfeasor?

Analysis:  On March 7, 2014, the Tennessee Supreme Court settled, once and for all, an important question about the comparative fault doctrine in Tennessee.  In sum, the fact a tortfeasor is known to the plaintiff at the time of the filing of the original complaint does not prevent them from bringing them in as a party at a later date (after the statute of limitations runs) when a defendant asserts comparative fault against them. 

The case at issue involved a Rule 23 certified question of law from the United States District Court for the Eastern District of Tennessee to the Tennessee Supreme Court.  In Michael S. Becker v. Ford Motor Co., No. M2013-02546-SC-R23-CV, 2014 WL 901510 (Tenn. 2014) the Tennessee Supreme Court made a clear ruling on an important comparative fault issue that has been in some dispute since McIntyre v. Ballentine, 833 S.W.2d 52 (Tenn. 1992).  In the Becker case, the plaintiff sued Ford Motor Company for products liability and breach of warranty claims following an accident.  The plaintiff did not sue the driver of the vehicle in the original complaint (who happened to be the plaintiff’s own son).  Ford answered the complaint and asserted comparative fault against the driver of the vehicle (the plaintiff’s son).  The plaintiff then filed a motion to add the son as a party and Ford opposed the motion on the grounds that the plaintiff could not use T.C.A. § 20-1-119 to bring in the son as a party because the plaintiff knew the identity of their son as a tortfeasor prior to filing the complaint. 

As a result of this issue, the Federal court certified the following issue of law to the Tennessee Supreme Court:

Products Liability – Joint and several liability in product liability cases is significantly changed by new 2013 Tennessee Statute, T.C.A. § 29-11-107.

Brief Summary:  Joint and several liability between a manufacturer and seller of a product is abolished in Tennessee.  Joint and several liability in product liability actions now only apply between manufacturers under the legal theories of strict liability and breach of warranty.

Analysis:  One area of Tennessee law that retained a portion of the doctrine of joint and several liability since McIntyre v. Ballentine, 833 S.W.2d 52 (Tenn. 1992) is in products liability actions.  The Tennessee Supreme Court in Owens v. Truckstops of America, 915 S.W.2d 420, 433 (Tenn. 1996) found that “the adoption of comparative fault did not alter that product liability law under which the liability of defendants in the chain of distribution of a product, who are liable under a theory of strict liability, is joint and several.”  In other areas of the law the Tennessee Supreme Court has issued several other decisions over the years that moved away from a general abolishment of joint and several liability.  Therefore, the Tennessee legislature addressed this issue in the 2013 Tennessee legislative session.  It passed Public Chapter No. 317 which was signed into law by Governor Bill Haslam on April 29, 2013.  This Public Chapter created a new statute, T.C.A. § 29-11-107, which provides as follows:

(a)  If multiple defendants are found liable in a civil action governed by comparative fault, a defendant shall only be severally liable for the percentage of damages for which fault is attributed to such defendant by the trier of fact, and no defendant shall be held jointly liable for any damages.

Joint and Several Liability – New Tennessee Statute, T.C.A. § 29-11-107 abolishes joint and several liability in most circumstances in Tennessee.

Since Tennessee adopted the doctrine of comparative fault in McIntyre v. Ballentine, 833 S.W.2d 52 (Tenn. 1992), the Tennessee Supreme Court has issued several opinions moving away from the general abolishment of joint and several liability.  The Tennessee Supreme Court has created several exceptions to the general rule that joint and several liability does not apply under Tennessee’s comparative fault scheme.  As a result of these exceptions created by the Court, the Tennessee legislature addressed this issue in the 2013 Tennessee legislative session.  The Tennessee Legislature recently passed Public Chapter No. 317 which was signed into law by Governor Bill Haslam on April 29, 2013.  It created T.C.A. § 29-11-107 which is in effect for all causes of action that accrue on or after July 1, 2013.  The key language in this bill is subsection (a) which provides:

(a)  If multiple defendants are found liable in a civil action governed by comparative fault, a defendant shall only be severally liable for the percentage of damages for which fault is attributed to such defendant by the trier of fact, and no defendant shall be held jointly liable for any damages.

As a result of this new bill, the Tennessee Legislature has codified the abolishment of joint and several liability in almost all circumstances in Tennessee.  There are only two exceptions that remain.  These exceptions are found in subsection (b) which provides:

Do the Health Care Liability Action pre-suit notice requirements and tolling provisions found in T.C.A. § 29-26-122 apply to a GTLA (Governmental Tort Liability Act) case in Tennessee?

Brief Summary:  In a Tennessee GTLA Health Care Liability Action, the statute of limitations tolling provisions found in T.C.A. § 29-26-121 for the pre-suit notice requirements do not apply.  A Health Care Liability Action brought under the GTLA must therefore be filed within the one year statute of limitations with no tolling available under this statute.

Analysis:  In Betty Lou Lawing v. Greene County EMS, No. E2011-01201-COA-R9-CV, 2012 WL 6562155 (Tenn. Ct. App. December 17, 2012) the Tennessee Court of Appeals discussed the Health Care Liability Action (Medical Malpractice) pre-suit notice requirements and their applicability in a GTLA case (the Tennessee Governmental Tort Liability Act can be found in T.C.A. § 29-20-101 et seq.).  In the Lawing case there was an alleged medical malpractice event on July 8, 2009 that resulted in an injury.  Notice pursuant to T.C.A. § 29-26-121 was provided on July 2^nd, 2010, which was within the one year statute of limitations.  The lawsuit was then filed on October 27, 2010, outside of the one year statute of limitations but within the 120 day tolling provision contained in T.C.A. § 29-26-121 (the statute provides a 120 day extension of the one year statute of limitations when notice is provided to the opposing party within the one year statute of limitations).  The question, therefore, was whether the plaintiff could take advantage of the tolling provisions found in T.C.A. § 29-26-121 for this Health Care Liability Action brought under the GTLA.

The Tennessee Supreme Court has previously held that claims against governmental entities “must be brought in strict compliance with the GTLA, and that our courts have thus held that the savings statute as well as joinder provisions in the comparative fault statute do not operate to extend the statute of limitations in the GTLA because the legislature did not expressly provide that they would apply to claims under the GTLA”.  Lawing at 2 (citing Lynn v. City of Jackson, 63 S.W.3d 332 (Tenn. 2001); Daniel v. Hardin County General Hospital, 971 S.W.2d 21 (Tenn. Ct. App. 1997)) (Note that T.C.A. § 20-1-119 was amended by the legislature in 1999 after the Daniel decision to explicitly apply the comparative fault joinder provisions to GTLA cases – however it took a specific act of the Tennessee legislature to make this clear as required under the GTLA).

Comparative fault – Under Tennessee law can a plaintiff sue an entity outside of the statute of limitations when a defendant names that entity as a potential at-fault party in discovery responses?

Brief Summary:  The identification of a potential non-party tortfeasor by a defendant in discovery responses (as opposed to in an answer) is not sufficient to trigger the extension of the statute of limitations that is allowed under T.C.A. § 20-1-119 for assertions of comparative fault. 

Analysis:  The Tennessee Court of Appeals recently decided an interesting case involving T.C.A. § 20-1-119 and its application in the context of discovery responses.  The Tennessee Court of Appeals decision of Rev. J.M. Shaffer v. Memphis Airport Authority et. al., No. W2012-00237-COA-R9-CV, 2013 WL 209309 (Tenn. Ct. App. January 18, 2013) discussed whether the ninety day statutory period, (under T.C.A. § 20-1-119) that allows a plaintiff to bring in a new defendant outside of the statute of limitations, was triggered when a defendant answered discovery identifying a potential tortfeasor.  Normally this statute is used when a defendant asserts comparative fault in an answer to the complaint outside of the statute of limitation time period for the cause of action. 

In this case, the plaintiff was allegedly injured in a slip and fall on April 29, 2009.  Shaffer at 1.  One year later on April 29, 2010, Shaffer filed a lawsuit in Circuit Court. Shaffer at 1.  The defendant filed an answer to the complaint on September 1, 2010 and asserted comparative fault against "other parties or non-parties" without identifying them by name.  Shaffer at 1,2.  On February 25, 2011, the defendant provided discovery responses identifying a potential third-party that was responsible under Tennessee comparative fault principles. Shaffer at 2.  On May 4, 2011, 245 days after the defendant filed the answer, the plaintiff filed an amended complaint against this newly identified entity. Shaffer at 2.  This new defendant filed a motion to dismiss citing the applicable one year statute of limitation and the assertion that T.C.A. § 20-1-119 did not apply to extend the statute of limitation in this circumstance based on the plain language in the statute.

Premises Liability – The "open and obvious" defense in the context of a “minor aberration” in the walking surface

Analysis:  The Tennessee Court of Appeals recently addressed the “open and obvious” defense in a premises liability case.  In Jacqueline Elaine Green v. Paul Roberts, No. M2012-00214-COA-R3-CV, 2012 WL 4858992 (Tenn. Ct. App. 2012) the Court dealt with some interesting facts.  The plaintiff walked through the defendant's parking lot to meet her cousin who parked her car in the parking lot. Green at 1.  She walked across the lot to meet her cousin without any incident.  Green at 1.  As she left the meeting, she took a step backwards and tripped over a small metal post that protruded from the parking lot.  Green at 1.  The plaintiff's heel caught on the 8 inch by 8 inch metal post that protruded about ¾ of an inch above the surface of the parking lot.  Green at 1.  The parking lot asphalt is black and the concrete around the post is a lighter color. Green at 1.  She tore her Achilles tendon and filed a lawsuit against the premises owner. 

The trial court granted summary judgment because it found the plaintiff was 50% or greater at fault.  Green at 2.  That ruling was appealed to the Tennessee Court of Appeals.  The Court noted that “traditionally, liability has not been imposed on a premises owner by courts of this state for injuries that resulted from defective or dangerous conditions that were ‘open and obvious.’”  Green at 5. (citing McCormick v. Waters, 594 S.W.2d 385 (Tenn. 1980)).  The Court further noted that since the adoption of comparative fault in Tennessee by McIntyre v. Ballentine, 833 S.W.2d 52 (Tenn. 1992), the “open and obvious” defense has been handled under principles of comparative fault. Green at 5.  Specifically, “when an invitee is injured because of dangers that are obvious, reasonably apparent, or as well known to the injured party as to the owner or operator of the premises, liability, if any, should be determined in accordance with the principles of comparative fault analysis and the general negligence law of this state.” Green at 5. 

Comparative Fault – T.C.A. § 20-1-119 ninety day savings statute after a comparative fault allegation (after the statute of limitations has passed)

Brief Summary:  T.C.A. § 20-1-119 provides a ninety day window for a plaintiff to add a new party into a lawsuit beyond the statute of limitations after a defendant (named in original or amended complaint that was filed within the statute of limitations) asserts comparative fault against that non-party.

Analysis:  A recent Tennessee Court of Appeals decision discussed T.C.A. § 20-1-119 and the timeframe within which a party must be brought into a case after comparative fault is asserted (when the statute of limitations date has already passed).  The Tennessee Court of Appeals decision of John Brockman v. Wesley Wolfe, No. W2011-02204-COA-R3-CV, 2012 WL 5364696 (Tenn. Ct. App. November 1, 2012) analyzed a plaintiff’s attempt to bring a party into a case greater then 90 days after a defendant asserted comparative fault against that non-party.  In this case, the plaintiff filed suit alleging a date of injury of August 1, 2005.  Brockman at 9.  On September 9, 2008, a defendant asserted comparative fault against Wolfe Company, LLC (“Wolfe”).  Brockman at 9.  However, the plaintiff did not add Wolfe as a defendant until March 23, 2010.  Brockman at 9.  

As a result, Wolfe was not sued within the three year statute of limitations that applied to the cause of action.  Brockman at 9.  Additionally, Wolfe was not added as a defendant within ninety days from the date the defendant asserted comparative fault against Wolfe which occurred on September 9, 2008.  T.C.A. § 20-1-119 provides a ninety day window for a plaintiff to bring suit against a party after comparative fault has been assessed against that party even if the statute of limitations has passed.  The text of T.C.A. § 20-1-119 that is pertinent to this issue is as follows: 

(a) In civil actions where comparative fault is or becomes an issue, if a defendant named in an original complaint initiating a suit filed within the applicable statute of limitations, or named in an amended complaint filed within the applicable statute of limitations, alleges in an answer or amended answer to the orig...

Comparative fault - T.C.A. § 16-15-735 requires pre-trial notification to the plaintiff of possible additional parties at fault in a General Sessions case

Comparative Fault - When can a minor child be found comparatively at fault or negligent under Tennessee law?

Brief Summary:  This new Tennessee Court of Appeals decision addresses the "Rule of Sevens" or "Rule of Capacity" to determine when a minor can be found negligent or comparatively at fault.  Under Tennessee Law a minor child under the age of seven is not capable of negligence.  There is a rebuttable presumption that a minor between the ages of seven and fourteen does not have the capacity for negligence.   There is a rebuttable presumption that a minor between the ages of fourteen and eighteen does have the capacity for negligence.

Analysis:  The recent Tennessee Court of Appeals decision of Ulysses Durham, Jr. v. John Noble, No. M2011-01579-COA-R3-CV, 2012 WL 3041296 (Tenn.Ct.App. July 25, 2012) discussed when a minor child can be found responsible for negligence under Tennessee law.  In this case, an eleven year old boy was struck by a school bus while riding his bicycle.  There was a dispute as to who was at fault, the bus driver or the minor child who was riding his bike.  The trial court assessed 58% of the fault for the accident to the minor child and 42% to the school bus driver.  The plaintiffs appealed and argued that 58% of the fault could not be assessed to an eleven year minor child under Tennessee law.

Tennessee courts have developed the "Rule of Sevens" or "Rule of Capacity" to determine when a minor can be found responsible for negligence.  This rule has three presumptions pertaining to the responsibility of a minor.  The first presumption is that "a child under the age of seven has no capacity for negligence."  Durham at p. 3.  Second, "there is a rebuttable presumption that a child between the ages of seven and fourteen does not have the capacity for negligence."  Durham at p. 3.  Third, "there is a rebuttable presumption of capacity for negligence for a child between the ages of fourteen and twenty-one."  Durham at p. 3.  It is important to note that the Tennessee Legal Responsibility Act of 1971 codified in T.C.A. § 1-3-113 lowered the age of majority from 21 to 18 therefor...

Comparative Fault - Is an entity a "party to the suit" for purposes of T.C.A. § 20-1-119 after summary judgment is granted but not made final under Rule 54.02?