David Randolph Smith

Comparative Fault & The Empty Chair

  • 3/30/05: In Biscan v. Brown (Tenn. 2005) Chief Justice Frank F. Drowata, III dissented from the majority's opinion (that affirmed social host liability for minors using alcohol with a parent's knowledge under the facts of the case) on an interesting point of law under comparative fault. Drowota argued that even though the injured plaintiffs' sister, Dana Biscan, could not have been sued for buying and illegally providing beer consumed by the minor driver-defendant (due to Tennessee Code Annotated section 57-10-101(2002), which insulates those who “furnish” alcoholic beverages from liability for injuries caused by persons who consume the beverages), nevertheless the jury should have considered Dana Biscan's "fault" under comparative fault principles. Judge Drowata's position was correctly rejected by the majority. In order to have a comparative fault comparison, the nonparty has to be a tortfeasor – has to be at fault. In 1984 I co-authored a law review article with Dean John Wade at Vanderbilt that recognized the centrality of proven legal fault to any basis for comparing liability. Fairness: A Comparative Analysis of the Indiana and Uniform Comparative Fault Acts,17 Indiana Law Review 969 (1984 (with Dean John Wade).
  • Tennessee’s comparative fault scheme was adopted in McIntyre v.Balentine, 833 S.W.2d 52 (Tenn.1992).833 S.W.2d 52 (Tenn.1992). In Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn.2000) the Tennessee Supreme Court held that a defendant may not attribute fault to a nonparty who is not identified sufficiently to allow the plaintiff to plead and serve process on such person pursuant to Tenn. Code Ann. § 20-1-119 (1994 & Supp.1999), even if the defendant establishes the nonparty's existence by clear and convincing evidence.
  • A defendant in a negligence case who wishes to introduce evidence that a person other than a named defendant caused plaintiff's injury must affirmatively plead comparative fault as a defense. George v. Alexander, 931 S.W.2d 517 (Tenn. 1996). But comparative fault cannot be sustained if as a matter of law a non-party is not at fault and cannot be subjected to tort liability. That was the case with Dana Biscan because of Tennessee Code Annotated section 57-10-101(2002). In order to have a comparative fault comparison, the nonparty has to be a tortfeasor – has to be at fault. TENNESSEE PATTERN JURY INSTRUCTIONS (T.P.I.-Civil 3.53) Where Claim is Made Against One Not Joined as a Party (2003). As the Tennessee Supreme Court stated in Owens v. Truckstops of America, 915 S.W.2d 420, 425 (Tenn.,1996): “The term ‘comparative fault’ is defined as those principles which encompass the determination of how to ‘apportion damage recovery among multiple or joint tortfeasors according to the percentage of fault attributed to those actors after reduction for the plaintiff's percentage of negligence.’” As The Tennessee Supreme Court explained McIntyre in McNabb v. Highways, Inc., 98 S.W.3d 649 (Tenn., 2003):
    • "We begin our analysis with the landmark case of McIntyre v. Balentine, 833 S.W.2d 52 (Tenn.1992), in which we adopted a system of modified comparative fault. Under this system, a plaintiff may recover damages where the plaintiff's fault is less than the defendant's fault. The plaintiff's recovery of damages, however, is reduced to reflect his or her degree of fault. Id. at 57. In cases of multiple tortfeasors, a "plaintiff will be entitled to recover so long as plaintiff's fault is less than the combined fault of all tortfeasors." Id. at 58."
  • Thus, McIntyre and comparative fault only apply if there are multiple tortfeasors. The jury had to be able find that Dana Biscan was negligent. TENNESSEE PATTERN JURY INSTRUCTIONS (T.P.I.-Civil 3.50) Comparative Fault, Theory and Effect (2003). There is an important, indeed fundamental, distinction between a party (or non-party) who has no fault or legal duty as a mater of substantive law and a tortfeasor who in fact was negligent but is immune. As the Wyoming Supreme Court explained in Natrona County v. Blake, 81 P.3d 948, 960-61 (Wyo. 2003):
    • "Given that this case involves a negligence claim against county peace officers, DeWald does not establish binding precedent with respect to the application of the public duty rule in this case. Even if this Court gives DeWald persuasive weight in addressing the duty issue in this case, this Court should decline the opportunity to extend DeWald to negligence claims against county peace officers because the DeWald court incorrectly concluded that the public duty rule is a form of immunity. . . [There is a] fundamental conceptual difference between the public duty rule and the doctrines of municipal and sovereign immunity. The doctrines of municipal and sovereign immunity protect governmental entities from liability for breach of an otherwise enforceable duty, while the public duty rule determines whether a duty in tort exists. Id. at 150; Wallace, 773 N.E.2d at 1023. In characterizing the public duty rule as a form of sovereign immunity, the DeWald court did not conduct a reasoned inquiry into the distinct legal differences between the public duty rule and sovereign immunity. Given the cursory legal analysis of the public duty rule issue in DeWald, this Court should disregard DeWald in addressing whether the public duty rule applies in this case."
  • Tennessee Code Annotated section 57-10-101(2002) provides: "The general assembly hereby finds and declares 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." Under this statute the “tort liability of Dana Biscan never existed. There was no negligence because proximate cause was mising as a matter of law. Thus, Dana Biscan could not be a tortfeasor. Under the TENNESSEE PATTERN JURY INSTRUCTIONS (T.P.I.-Civil 3.50) Comparative Fault, Theory and Effect (2003) the jury is told “A party [or nonparty] is at fault if you find that the party was negligent and that the negligence was a legal cause of the injury or damage for which a claim is made.” In the case of a nonparty, the jury is told, “In this case, [defendant] claims that was at fault and has the burden of proving (their, his, her) fault.[ Even though [he/she has] [they have] not appeared or offered evidence], it is necessary that you determine whether (name of non-party) was at fault and determine the percentage of fault, if any, chargeable to [him/her] [them].” TENNESSEE PATTERN JURY INSTRUCTIONS (T.P.I.-Civil 3.53) Where Claim is Made AgainstOne Not Joined as a Party (2003).
  • In the Biscan, however, Dana Biscan cannot be negligent, cannot be a tortfeasor, because there is no proximate cause as a matter of law. The defendants can never prove that the Dana Biscan was at fault since there is no legal basis to do so. This absence of legal liability or tortfeasor status ab initio is simply worlds apart from the situation where a nonparty was a tortfeasor, was negligent, but is otherwise immune. In that situation the jury can assess negligence/fault against the nonparty tortfeasor and immunity will not prevent the application of comparative fault. Carroll v. Whitney, 29 S.W.3d 14 (Tenn. 2000). The majority opinion in Biscan was therefore correct (as was Judge Marietta Shipley at the trial court) in refusing to include Dana Biscan in the fault comoparison.