|||IN THE SUPREME COURT OF TENNESSEE AT JACKSON November 1999 Session
|||October 4, 2000
|||JAMES CARROLL, ET AL. V. CAROLYN WHITNEY, M.D., ET AL.
|||Appeal by Permission from the Court of Appeals, Western Section Circuit
Court for Shelby County No. 68714 Hon. Janice M. Holder, Judge
|||Robert L.J. Spence, Jr. and Chapman Sellers Morrow, Memphis, Tennessee,
for the appellants, Carolyn Whitney, M.D., and Grover W. Barnes, M.D., P.C.;
Thomas R. Prewitt, Robertson M. Leatherman, and Parke S. Morris, Memphis,
Tennessee, for the appellant, LeBonheur Children's Medical Center, Inc.
Carl I. Jacobson and Ross Higman, Memphis Tennessee, for the appellees,
James Carroll, Forestine Carroll, and James Carroll and Forestine Carroll
for the use and benefit of the estate of Jessica Renee Carroll, a minor,
deceased. Jerry E. Mitchell and John H. Dotson, Memphis, Tennessee, for
the Amicus Curiae, UT Medical Group, Inc.
|||The opinion of the court was delivered by: William M. Barker, Justice
|||This is an appeal from the Circuit Court for Shelby County which allowed
a jury, in an action alleging malpractice, to allocate fault to resident
physicians who were immune from suit. The Court of Appeals reversed the
judgment of the trial court and concluded that the trial court should not
have permitted the jury to apportion fault to the residents because they
were immune. We then granted this appeal to decide whether the trial court
erred in allowing nonparties who were immune from suit to appear on a jury
verdict form. After examining the record, considering the arguments of the
parties and amicus curiae, and analyzing the applicable law, we conclude
that the trial court did not err in allowing the immune nonparties to appear
on the jury verdict form. Accordingly, for the reasons herein, we reverse
the Court of Appeals and reinstate the judgment of the trial court.
|||Tenn. R. App. P. 11 Application for Permission to Appeal; Judgment of
the Court of Appeals Reversed
|||William M. Barker, J., delivered the opinion of the court, in which Frank
F. Drowota, III, and Adolpho A. Birch, Jr., JJ., joined. E. Riley Anderson,
C.J., filed a dissenting opinion. Janice M. Holder, J., not participating.
|||Jessica Renee Carroll, a fourteen-month-old child, died of sepsis *fn1
and pneumonia on March 23, 1992, while she was a patient at LeBonheur Children's
Medical Center (LeBonheur). The previous day, because Jessica was vomiting
and running a fever between 100 and 105 degrees, her mother, Forestine Carroll,
contacted Dr. Carolyn Whitney, Jessica's pediatrician. Later that day, Jessica's
temperature began to fall and her vomiting ceased. Although Dr. Whitney
agreed to see Jessica in her office the next day, she advised Mrs. Carroll
to take Jessica to the emergency room if Jessica began having more problems
with her temperature or vomiting.
|||When Dr. Whitney examined Jessica the next day, March 23, 1992, she found
her to be non-responsive with a low white blood cell count although she
had only a slight fever. In addition, Dr. Whitney diagnosed Jessica as suffering
from tonsillitis, a heart murmur, and dehydration. Jessica was admitted
to LeBonheur, and Dr. Whitney ordered that she be administered antibiotics
and intravenous fluids. Although Dr. Whitney did not include information
concerning Jessica's low white blood cell count in her admission orders,
she did direct that a complete blood count be performed.
|||At LeBonheur, Jessica was examined at approximately 1:00 p.m. by Dr. Reggie
Lyell and Dr. Azra Sehic, University of Tennessee resident physicians. Dr.
Lyell was a first-year resident physician, and Dr. Sehic was the supervising
resident. Dr. Sehic was concerned that Jessica might be suffering from pneumonia
with possible sepsis, and she ordered blood tests to be conducted. Dr. Lyell
called and notified Dr. Whitney that Jessica's condition was stable. Both
Dr. Lyell and Dr. Sehic were aware of the treatment ordered by Dr. Whitney,
and Dr. Sehic later conceded that antibiotics, once recommended, should
be administered within thirty minutes.
|||Around 3:30 p.m., Dr. Lyell was notified that the tests performed on Jessica's
blood revealed the presence of bacteria in her blood. Dr. Lyell then contacted
Dr. Sehic to inform her of the results. Although more than two and one-half
hours had passed since the initial examination of Jessica at LeBonheur,
Jessica still had not received the antibiotics and intravenous fluids ordered
by Dr. Whitney. Dr. Sehic again examined Jessica and concluded that she
needed to receive intravenous fluids and should be transferred to the intensive
care unit. Shortly thereafter, Jessica suffered a seizure and lapsed into
unconsciousness that lasted until her death around 6:30 p.m. The cause of
Jessica's death was ultimately determined to be pneumonia and sepsis.
|||After Jessica's death, James and Forestine Carroll (the plaintiffs), brought
a medical malpractice action against the following parties: LeBonheur, Dr.
Whitney, Dr. Grover W. Barnes, Dr. Whitney's employer, *fn2
and Dr. Sehic and Dr. Lyell (the residents). The residents filed a motion
to dismiss arguing that, as state employees, they were immune from suit
pursuant to Tennessee Code Annotated section 9-8-307. The trial court granted
the motion, and the plaintiffs voluntarily dismissed the action against
the remaining defendants.
|||The plaintiffs then re-filed this action against the non-immune defendants.
In addition, the plaintiffs filed a claim against the State of Tennessee
in the Claims Commission for the actions of the residents. During the trial
in the Shelby County Circuit Court, the defendants referred to the claim
against the State, and they argued that the residents' negligence, rather
than their own conduct, was the cause of Jessica's death. At the conclusion
of the trial, the judge instructed the jury to apportion fault among the
defendants, the residents, and Forestine Carroll. The jury apportioned 70%
fault to Dr. Lyell, 30% fault to Dr. Sehic, and 0% fault to the defendants
and Forestine Carroll, and the trial court entered judgment consistent with
the jury verdict.
|||The Court of Appeals reversed the judgment of the trial court and concluded
that the jury should not have been permitted to apportion fault to the residents
because they were immune from suit. The Court of Appeals also held that
permitting the jury to apportion fault to the residents was not harmless
error, because it was unclear whether the jury would have assigned 0% fault
to the defendants had it not been instructed that it could also allocate
fault to the residents. The defendants then filed an application for permission
to appeal, which we granted.
|||In negligence actions prior to 1992, Tennessee courts applied the common
law doctrine of contributory negligence. Under this doctrine, a plaintiff
whose own negligence in any way contributed to the injury was barred from
recovery. See Bejach v. Colby, 214 S.W.2d 869, 870 (Tenn. 1919); Kelley
v. Johnson, 796 S.W.2d 155, 158-59 (Tenn. Ct. App. 1990). *fn3
In McIntyre v. Balentine, 833 S.W.2d 52, 56 (Tenn. 1992), this Court adopted
a modified system of comparative fault by which a plaintiff could recover
damages if the plaintiff's negligence was less than that of the defendant.
See id. at 56-57. *fn4
According to the Court, fairness to plaintiffs justified the rejection of
contributory negligence. "Justice simply will not permit . . . continued
adherence to a rule that, in the face of a judicial determination that others
bear primary responsibility, nevertheless completely denies injured litigants
recompense for their damages." Id. at 56.
|||Also, fairness to defendants led the Court to conclude that the adoption
of comparative fault rendered obsolete the doctrine of joint and several
liability. See id. at 58. By rejecting contributory negligence, the Court
sought a tighter fit between liability and fault. According to the Court,
"it would be inconsistent to simultaneously retain a rule, joint and
several liability, which may fortuitously impose a degree of liability that
is out of all proportion to fault." Id. at 58. We surmised that under
the new system, a defendant would only be liable for the percentage of damages
caused by that defendant's negligence. See id. To permit the defendant to
take advantage of this new system linking more closely liability to fault,
the Court adopted a nonparty defense. *fn5
As this Court explained:
|||[F]airness 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 or damage for which
recovery is sought. In cases where such a defense is raised, the trial court
shall instruct the jury to assign this nonparty the percentage of the total
negligence for which he is responsible. Id.
|||Significantly, the Court did not require that a cause of action be available
before a jury could apportion fault to nonparties. The Court stated in McIntyre
|||in order for a plaintiff to recover a judgment against such additional
person, the plaintiff must have made a timely amendment to his complaint
and caused process to be served on such additional person. Thereafter, the
additional party will be required to answer the amended complaint. Id.
|||A plaintiff's ability to bring a cause of action was only important-to
the extent that it mattered at all in the Court's analysis-in determining
whether the plaintiff could recover damages, not whether a jury could apportion
fault to a nonparty.
|||While we attempted to provide guidance on how to implement comparative
fault, we explicitly left the treatment of nonparty tortfeasors to another
day and an "appropriate controversy." See id. at 60. It was not
until Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn. 1996), that
the Court addressed this issue. In Ridings, the plaintiff brought a negligence
action after he fell from a ladder during the course and scope of his employment.
Relying upon McIntyre, the defendants attempted to assert as an affirmative
defense that a nonparty, the plaintiff's employer, caused or contributed
to the plaintiff's injuries. The plaintiff, however, could not maintain
a cause of action for damages against his employer because of the exclusive
remedy provisions of the Workers' Compensation Law.
|||In examining whether a defendant in a negligence action could assert that
an immune nonparty caused or contributed to the plaintiff's injuries, this
Court purported to rely on the policy considerations and rationale of McIntyre.
The Court explained:
|||The designation "nonparty," used in McIntyre, is not a term
of art; it means "not a party." However, it is given a particular
meaning by the decision in McIntyre, wherein the Court found that, upon
a defendant's allegation that a person not a party to the suit, a "nonparty,"
caused or contributed to the plaintiff's injuries, the plaintiff, by amendment
to the complaint and service of process, may make the "nonparty"
a "party" that is answerable to the plaintiff in actions for damages
according to the Rules of Civil Procedure. Consequently, only a nonparty
against whom the plaintiff has a cause of action can be made a party. Since
the plaintiff's employer cannot be made a party to the plaintiff's for personal
injuries sustained in the course and scope of his employment, the rationale
of McIntyre, both as to principle and procedure will not permit fault to
be attributed to the plaintiff's employer. Id. at 81-82.
|||Our conclusion was supported by "[t]he rationale of McIntyre [which]
postulates that fault may be attributed only to those persons against whom
the plaintiff has a cause of action in tort." See id. at 81.
|||A careful reading of McIntyre, however, suggests that neither the holding
of the case nor its underlying rationale limits the attribution of fault
only to persons against whom the plaintiff has a cause of action in tort.
Our treatment of nonparties in McIntyre simply examined a plaintiff's ability
to recover damages from a nonparty, and our holding was limited accordingly.
See McIntyre, 833 S.W.2d at 60 (denying plaintiff's petition requesting
argument on the treatment of nonparty tortfeasors). In addition, defendants
also benefitted from this fairer system of fault allocation through the
abolition of joint and several liability and the adoption of the nonparty
defense. See id. at 58.
|||The Court's decision in Ridings was challenged in Snyder v. LTG Lufttechnische
GmbH, 955 S.W.2d 252 (Tenn. 1997). In response to the defendants' argument
that Ridings was inconsistent with McIntyre's objective of fairness, we
examined whether a defendant in a negligence action could introduce evidence
that the conduct of the plaintiff's employer proximately caused or contributed
to a plaintiff's injury. See id. at 252. We concluded that a defendant could
not introduce such evidence based upon our statement in Ridings that "a
plaintiff's right to recover on allegations of negligence . . . is determined
without reference to the [immune nonparty's] conduct." Ridings, 914
S.W.2d at 84 (emphasis added). Indeed, we reaffirmed our decision in Ridings:
|||There is no question that the Court in Ridings considered the "fairness"
arguments advanced here by the defendants and made a policy decision to
leave immune [nonparties] out of the assessment of fault. We thus decline
the defendants' invitation to reverse Ridings or otherwise depart from the
rule adopted in that decision. Snyder, 955 S.W.2d at 256.
|||Our holding affirmed that Ridings was good law and that it stood for the
proposition that a defendant could not introduce evidence that the plaintiff's
employer proximately caused or contributed to a plaintiff's injury.
|||Nevertheless, we decided to examine whether a defendant could introduce
evidence that the immune employer was the cause in fact of a plaintiff's
injury. We expressed concern that not allowing such evidence would make
discussion of the case nearly impossible, with the result that "the
jury would not hear evidence of the true facts . . . but, [would] be asked
to determine fault and hence liability for damages." Id. Therefore,
in determining whether a plaintiff met the burden of establishing "but
for" causation, we concluded that a jury could consider any evidence
relevant to the incident giving rise to the plaintiff's injury. See id.
|||Although we cautioned that the trial court was to instruct the jury that
it could not consider the evidence for purposes of determining proximate
causation, see id., the practical effect of Snyder was to invite trial courts
to depart from the rule in Ridings. Even assuming that the trial court in
this case erred in permitting the jury to apportion fault, any error would
have to be harmless. See Tenn. R. App. P. 36(b). The jury was presented
with a full picture of the events leading to Jessica Carroll's death, and,
given this opportunity, the jury found that the defendants were in no way
responsible for Jessica's death. It strains credibility to suggest that
a verdict by a fully- informed jury somehow constitutes harmful error. Yet,
if we retain our current system of fault allocation, appellate review will
be purely academic because virtually every such error will be harmless.
|||On the other hand, to conclude that the trial court's conduct constitutes
harmful error, we would either have to exclude evidence of an immune nonparty's
conduct and thereby blindfold the jury to relevant evidence or we would
have to force a jury to allocate fault between parties who were not wholly
responsible. This is a choice that we decline to make. Instead, we hold
that when a defendant raises the nonparty defense in a negligence action,
a jury may generally apportion fault to immune nonparties.
|||Although our decision today achieves a result different from Ridings and
Snyder, those cases are not overruled. Rather, they remain uniquely applicable
with regard to the allocation of fault to employers in workers' compensation
cases. In such cases, an employer's liability is governed exclusively by
the Workers' Compensation Law. See Tenn. Code Ann. § 50-6-108(a) (1999).
While an employee cannot proceed with a tort action against the employer,
the employee may seek damages from some person other than the employer.
See § 50-6-112(a). If the employee succeeds in an action against a third
party, the employer that has fully or partially paid its maximum liability
for workers' compensation is entitled to a subrogation lien against the
employee's recovery. See § 50-6-112(a).
|||Our reason for retaining Ridings and Snyder in these cases is simple and
consistent with the standard otherwise applicable: fairness. An example
illustrates the basic unfairness that would result from application of the
standard we adopt today to cases brought against third parties by employees
injured on the job. An employee who is injured by a piece of equipment may
have a cause of action for products liability against the machine's manufacturer.
However, the manufacturer could assert at trial that the employer altered
the machine, and that this alteration caused the employee's injury. A jury,
acting on this use of the nonparty defense, could then allocate fault between
the manufacturer and the immune employer, thereby reducing the employee's
recovery. Subsequently, the employer could exercise its right of subrogation
with regard to the damages assessed against the manufacturer and recovered
by the employee. Essentially then, the employer's right of subrogation would
defeat the employee's statutory right to seek damages from other tortfeasors.
We are unwilling to extend our holding this far. Outside of this limited
use, however, the standard we announce today is generally applicable in
comparative fault cases. Morever, we note that even in cases brought by
employees against third parties, a jury may still allocate fault to other
tortfeasors against whom a plaintiff, for any reason, could not recover.
|||The dissenting opinion argues that the trier of fact should not be permitted
to allocate fault to immune nonparties, and its position is premised upon
two primary considerations: (1) that the Ridings Court was faithful to the
principles and goals of McIntyre; and (2) that the rule adopted by the Court
today effectively overrules Ridings and Synder, contrary to the dictates
of stare decisis. We disagree with the dissent for two reasons.
|||First, although Ridings purported to apply the "rationale of McIntyre"
in holding that "fault may be attributed only to those persons against
whom the plaintiff has a cause of action," we repeat that nothing in
the rationale of McIntyre compelled such a result. Indeed, given McIntyre's
concerns of fairness to defendants, along with its abolition of joint-and-several
liability, application of the Ridings holding outside of Workers' Compensation
is at odds with the rationale of McIntyre.
|||Moreover, although the dissent correctly acknowledges that the Snyder
Court affirmed the Ridings rule, it did so only as far as the Ridings rule
applies in Workers' Compensation cases. Application of any similar limitation
outside of Workers' Compensation was rejected by the Snyder Court, which
recognized that juries should be allowed to consider any evidence relevant
to assessing the actual cause of the plaintiff's injury. By way of contrast,
the approach advocated by the dissent would do significant harm to McIntyre,
as the dissent's approach would no longer link fault with liability and
would thereby render defendants liable for more than their own proportionate
share of fault.
|||Second, our decision today does not ignore the command of stare decisis
as the dissent vigorously argues. Both Ridings and Snyder were Workers'
Compensation cases, and each was properly decided in that context given
the unique concerns of the exclusive remedy provision and the employer's
right of subrogation. The dissent argues that by not expanding the Ridings-Snyder
rule to other types of cases, we somehow overrule both of those cases. To
the contrary, however, we have acknowledged that the Ridings-Snyder rule
is still the appropriate rule for Workers' Compensation cases. Because ordinary
tort law does not share the exclusive remedy and employer subrogation aspects
of workers' compensation law, though, retention of the Ridings-Snyder rule
in other aspects of tort law would do significant harm to the rationale
|||While our decision to depart from Ridings and Snyder is prompted primarily
by the effect harmless error analysis has on our system of fault allocation,
our decision is also grounded in the rationale that led to the adoption
of comparative fault in the first place: fairness to the parties by linking
fault with liability. In McIntyre, we rejected contributory negligence and
joint and several liability in favor of comparative negligence to achieve
a fairer and tighter fit between fault and liability. This "fair and
tight fit" is lost, however, when some participants to an act of negligence
are excluded from the apportionment of fault.
|||Pursuant to Snyder, under the present system of fault allocation, a jury
is permitted to hear all evidence relevant to the injury-causing event.
Yet the jury is not permitted to allocate fault to some of the participants,
even though those participants may have contributed to the injury. Given
these circumstances, the likelihood is great that the jury will allocate
to a defendant fault that properly lies elsewhere. See Kirby Bldg. Sys.
v. Mineral Exploration Co., 704 P.2d 1266, 1272-73 (Wyo. 1985) ("Logic
dictates that, if the negligence of an actor who is not a party is not included
in the comparative-negligence calculation, the percentage of negligence
of defendants who are parties may be inflated . . . ."). This result
would hardly promote the policy of fairness that prompted this Court to
adopt comparative fault. Compare Estate of Hunter v. General Motors Corp.,
729 So. 2d 1264, 1273 (Miss. 1999) ("It would be patently unfair in
many cases to require a defendant to be `dragged into court' for the malfeasance
of another and to thereupon forbid the defendant from establishing that
fault should properly lie elsewhere.").
|||Moreover, the exclusion of some tortfeasors from the universe of persons
and entities to whom fault can be allocated has the effect of reviving joint
and several liability. Through our rejection of joint and several liability
in McIntyre, we shifted to plaintiffs the risk that no recovery could be
obtained due to the presence of judgment-proof tortfeasors. While not an
explicit revival of joint and several liability, a decision that the trial
court in this case acted in error certainly breathes life into the doctrine
that was already discarded by this Court. In addressing this issue, the
Utah Supreme Court concluded that a jury, unable to allocate fault to immune
nonparties, would hold the defendants liable "not only for their own
proportionate share of fault, but also for the proportionate share of fault
attributable to the [immune nonparties]. Thus, one of the major evils of
joint and several liability would result . . . ." Sullivan v. Scoular
Grain Co., 853 P.2d 877, 880 (Utah 1993).
|||In fact, following our decision in McIntyre, we declined the opportunity
to protect plaintiffs from the risk that they could not recover damages
from insolvent defendants through our rejection of principles embodied in
the Uniform Comparative Fault Act. When a tortfeasor is insolvent, either
a plaintiff will receive less than full compensation, or a solvent defendant
will be liable for an amount greater than his proportional fault. See John
Scott Hickman, Note, Efficiency, Fairness, and Common Sense: The Case for
One Cause of Action as to Percentage of Fault in Comparative Negligence
Jurisdictions That Have Abolished or Modified Joint and Several Liability,
48 Vand. L. Rev. 739, 745 (1995). In a jurisdiction that has abolished joint
and several liability, this burden would typically fall on the plaintiff,
see id.; however, a provision of the Uniform Comparative Fault Act permits
the reallocation of the insolvent tortfeasor's fault among the remaining
parties. See Unif. Comparative Fault Act § 2(d), 12 U.L.A. 43 (Supp. 1995).
|||In Volz v. Ledes, 895 S.W.2d 677, 680 (Tenn. 1995), this Court declined
to adopt such a provision and concluded that "the goal of linking liability
with fault is [not] furthered by a rule that allows a defendant's liability
to be determined by the happenstance of the financial wherewithal of other
defendants." The Court emphasized: "We again confirm that the
doctrine of joint and several liability was rendered obsolete by our decision
in McIntyre v. Balentine." Id. at 680. Thus, out of fairness to defendants,
we allowed the burden of a judgment-proof insolvent tortfeasor to fall on
the plaintiff. We refused to permit an implicit revival of joint and several
liability then, and we do so again today.
|||The plaintiffs argue, however, that if a jury is permitted to allocate
fault to an immune nonparty, then defendants will shift the burden for the
injury to those immune persons or entities. We find this argument unconvincing,
though, because defendants are not permitted to shrug off blame with a casual
"I didn't do it; she did." Rather, because the nonparty defense
is an affirmative defense, a jury can apportion fault to a nonparty only
after it is convinced that the defendant's burden of establishing that a
nonparty caused or contributed to the plaintiff's injury has been met. Thus,
defendants are not permitted to casually shift blame to nonparties. Moreover,
the goal of fairness that underlies our adoption of comparative fault is
not met when a plaintiff is free to shift to some defendants the fault which
is properly allocated to other nonparties. Cf. Estate of Hunter v. General
Motors Corp., 729 So. 2d 1264, 1273 (Miss. 1999) ("It would be patently
unfair in many cases to require a defendant to be `dragged into court' for
the malfeasance of another and to thereupon forbid the defendant from establishing
that fault should properly lie elsewhere.").
|||With our decision today, we join the vast majority of comparative fault
jurisdictions that broadly permit allocation of fault to all persons involved
in an injury-causing event. *fn7
We note that these plaintiffs are not left without a remedy. The same statute
that precludes the imposition of liability on State employees also provides
the plaintiff with an opportunity to seek damages against the State before
the Tennessee Claims Commission. See Tenn. Code Ann. § 9-8- 307(a) (1999).
Because damages awarded by the Claims Commission are capped at $300,000
per claimant and $1,000,000.00 per incident, see id. § 9-8-307(e), the plaintiffs
must bear the burden of not collecting those damages which exceed the statutory
amounts. This result, however, is not a product of any unfairness with the
system of comparative fault. Rather, it is the result which follows from
the General Assembly's grant of immunity to State employees, and any modification
must necessarily be legislative, not judicial.
|||In summary, we hold that when a defendant raises the nonparty defense
in a negligence action, a trier of fact may allocate fault to immune nonparties.
Moreover, we limit the application of our decisions in Snyder v. LTG Lufttechnische
GmbH, 955 S.W.2d 252 (Tenn. 1997), and Ridings v. Ralph M. Parsons Co.,
914 S.W.2d 79 (Tenn. 1996), to workers' compensation cases. Accordingly,
the judgment of the Court of Appeals is reversed, and the judgment of the
trial court is reinstated.
|||Costs of this appeal are taxed to the appellees, James and Forestine Carroll.
|||E. RILEY ANDERSON, C.J., dissenting.
|||The majority departs from settled principles of law in holding that a
jury may allocate fault to an immune nonparty. In so doing, it refuses to
apply and overrules the application in this case of the Tennessee Supreme
Court's unanimous decision just four years ago in Ridings v. Ralph M. Parsons
Co., 914 S.W.2d 79 (Tenn. 1996), that a jury may not allocate fault to an
immune nonparty because the immune nonparty owes no duty to the plaintiff
and therefore the plaintiff has no cause of action against the immune nonparty.
|||In my view, the Court of Appeals correctly applied Ridings in concluding
that the trial court erred by instructing the jury that it could assign
fault to immune nonparties. I am also convinced that the majority's failure
to adhere to the doctrine of stare decisis by failing to apply a decision
released only four years ago undermines the reliability and consistency
of this Court's decisions in the area of comparative fault.
|||I therefore dissent.
|||The majority asserts that Ridings is inconsistent with our decision in
McIntyre. I do not agree. Ridings is consistent with McIntyre and the principle
that a party's liability should be linked to her or her degree of fault.
In fact, Ridings was based directly on McIntyre and is neither unworkable
nor unfair to defendants.
|||In McIntyre, we partially abandoned the doctrine of contributory negligence
which barred any recovery for damages and adopted a system of comparative
fault under which a plaintiff may recover damages for an injury provided
that his or her own negligence in causing the injury is less than the fault
of the defendant. In such a case, the plaintiff's recovery is to be reduced
by the percentage of his or her own negligence. Id. at 57.
|||Our decision in McIntyre was a fundamental change in negligence law in
Tennessee. It was based on "considerations of fairness and consistency,
as well as to avoid the inconsistent and often harsh results to plaintiffs
whose negligence was far less than that of a defendant or defendants."
Coln v. City of Savannah, 966 S.W.2d 34, 40 (Tenn. 1998); see also Alcazar
v. Hayes, 982 S.W.2d 845 (Tenn. 1998) (courts may determine public policy
absent a constitutional or statutory declaration).
|||Contrary to the majority's depiction, McIntyre did not achieve the result
of completely linking a party's liability with his or her degree of fault.
We did not, for example, adopt a "pure" system of comparative
fault under which a plaintiff's recovery is completely linked to his or
her fault and under which a plaintiff does not have to be less at fault
than a defendant in order to recover. In fact we specifically rejected the
pure system in McIntyre. 833 S.W.2d at 57 ("We do not agree that a
party should necessarily be able to recover in tort even though he may be
80, 90, or 95 percent at fault."). Thus, a plaintiff who is equally
at fault or even slightly more at fault than a defendant may not recover.
|||Accordingly, in adopting a modified system of comparative fault in McIntyre,
we considered matters of policy and fairness to both plaintiffs and defendants
in a lawsuit. The effect of McIntyre's fairness formula allowed plaintiffs
to recover when partly at fault, yet eliminated joint and several liability
so that the defendant was responsible only for its own fault. Under McIntyre,
the plaintiff now assumes the risk of an insolvent defendant and the risk
that he or she may not receive full compensation for damages.
|||In Ridings, we held that a defendant could not assert as an affimative
defense that the plaintiff's employer, a nonparty, caused or contributed
to the injuries when the plaintiff did not have a cause of action in tort
against the employer. *fn8
The majority now contends that this holding is inconsistent with the adoption
of a "nonparty" defense in McIntyre. This contention was unanimously
rejected in Ridings:
|||The rationale of McIntyre postulates that fault may be attributed only
to those persons against whom the plaintiff has a cause of action in tort.
The designation `nonparty' used in McIntyre is not a term of art; it means
`not a party.' However, it is given a particular meaning by the decision
in McIntyre, wherein the Court found that, upon a defendant's allegation
that a person not a party to the suit, a `nonparty,' caused or contributed
to the plaintiff's injuries, the plaintiff, by amendment to the complaint
and service of process, may make the `nonparty' a `party' that is answerable
to the plaintiff in actions for damages according to the Rules of Civil
Procedure. Consequently only a nonparty against whom the plaintiff has a
cause of action can be made a party. Since the plaintiff's employer cannot
be made a party to the plaintiff's tort action for personal injuries sustained
in the course and scope of his employment, the rationale of McIntyre, both
as to principle and procedure, will not permit fault to be attributed to
the plaintiff's employer." Ridings, 914 S.W.2d at 81-82 (emphasis added).
|||Accordingly, the majority's view that Ridings is inconsistent with McIntyre
|||Just three years ago, we reaffirmed Ridings in Snyder v. LTG Luftechnishe
GmbH, 955 S.W.2d 252 (Tenn. 1997), but clarified that a defendant is not
prohibited from showing evidence that an immune nonparty was the cause in
fact of an injury. Moreover, we again rejected the arguments that Ridings
was unfair to defendants and inconsistent with McIntyre:
|||There is no question that the Court in Ridings considered the `fairness'
arguments advanced here by the defendants and made a policy decision to
leave immune [nonparties] out of the assessment of fault. We thus decline
the defendants' invitation to reverse Ridings or otherwise depart from the
rule adopted in that decision. 955 S.W.2d at 256; see also Brown v. Walmart,
12 S.W.3d 785 (Tenn. 2000) (fault may not be assigned to an unknown tortfeasor).
|||These are now, however, the very same arguments the majority accepts for
refusing to apply Ridings. *fn9
|||In sum, our comparative fault decisions beginning with McIntyre have been
guided by policy and fairness concerns. As can be seen, Ridings was expressly
based upon McIntyre. Nothing in McIntyre or Ridings has changed - the "principle
and procedure" remain the same. Only the Court has changed, a majority
of which has decided to adopt a different policy based on its view that
Ridings is now inconsistent with McIntyre and unfair to defendants because
it does not fully link a defendant's liability with its degree of fault.
I cannot agree with this 180-degree change in course.
|||The majority supports its abrupt change of direction by asserting that
Ridings has proven to be unworkable in all but workers' compensation cases
and an impediment to appellate review. It argues that the trial court's
instruction for the jury to assign fault to immune nonparties resulted in
a "fully informed" verdict that cannot effectively be reviewed.
It also contends that under Ridings a jury may act out of sympathy for the
plaintiff and assign an undue percentage of fault to a defendant because
it is prevented from assigning fault to the immune nonparty. These concerns
are misplaced for several reasons.
|||First, there is no question that the trial court's instruction was erroneous
and improper under Ridings, which was decisional law at the time of trial.
Even if one accepts the majority's assertion - which I do not - that the
"error" enabled the jury to be more "fully informed"
of the facts, it was "not informed" of the law to be applied to
those facts. Far from rendering the verdict harmless, the verdict is inherently,
legally flawed. Moreover, under Snyder, the jury is not precluded from hearing
the facts about the conduct of an immune nonparty for the purpose of considering
the element of causation.
|||Next, unlike the majority, I am unwilling to presume that under Ridings
a jury will disregard its instructions and base its verdict solely upon
sympathy for the plaintiff. The Supreme Court has as a matter of institutional
faith based its decisions on a presumption that juries are honest and conscientious
and will follow instructions given to them. E.g., State v. Williams, 977
S.W.2d 101, 106 (Tenn. 1998) (jury is presumed to have followed instructions).
Under McIntyre, if a plaintiff is not less at fault than a defendant, the
plaintiff cannot recover. Nothing in Ridings changed this fundamental procedure.
|||The majority's decision also fails to take into account the implications
of immunity. The decision to extend immunity to a person or entity, as in
this case with state employees, is generally a legislative determination
that, in theory, benefits the public as a whole. In the context of litigation,
however, it creates a risk of loss that is borne by a plaintiff who cannot
recover in tort from the immune person or entity. In Ridings, we balanced
the risk by holding that a defendant, similar to the plaintiff, cannot assign
fault to an immune nonparty. Without any new or intervening reason, the
majority has now completely reversed course and has placed the entire risk
of loss on the plaintiff. As one commentator has written, plaintiffs should
not be punished "for society's choice to render certain persons immune
from tort liability." Cardi, Apportioning Responsibility to Immune
Nonparties: An Argument Based on Comparative Responsibility and the Proposed
Restatement (Third) of Torts, 82 Iowa L. Rev. 1293 (1997). *fn10
|||Finally, the majority's decision violates the fundamental principle of
stare decisis. This principle, under which a court should depart from its
prior decisions only upon rare and exceptional occasions, is designed to
achieve consistency in the law and to promote confidence and reliance on
the Court's decisions. E.g., Barnes v. Walker, 234 S.W.2d 648 (Tenn. 1950).
Accordingly, under stare decisis, when a supreme court re-examines a prior
holding it is required to ask whether related principles of law have so
far developed that the old rule has been left no more than a remnant of
abandoned doctrine, whether facts have changed from those which furnished
the justification for the earlier decision so as to rob the old rule of
its justification, whether the rule has been subject to the kind of reliance
that would lend hardships to the consequences of overruling it and add inequity
to the cost of repudiation, and finally, whether the rule has proven to
be intolerable in defying practical workability. See Patterson v. McLean
Credit Union, 491 U.S. 164, 173, 109 S. Ct. 2363, 2370, 105 L.Ed.2d 132
(1989); United States v. Title Ins. & Trust Co., 265 U.S. 472, 486,
44 S. Ct. 621, 623, 68 L.Ed. 1110 (1924).
|||When the stare decisis principle is applied in this case, the answer is
clear - the Ridings rule is alive and well and no related legal principles
have in any sense developed so as to require its abandonment. To the contrary,
it has been a fundamental building block in the development of comparative
fault law. Nor have any facts changed since the adoption of McIntyre or
Ridings which would rob Ridings of its justification. *fn11
Although the majority now limits Ridings to workers' compensation cases,
there was no such limitation or explanation in either Ridings or Snyder.
Moreover, this Court had previously cited to or discussed Ridings on several
occasions without either limiting the rule to workers' compensation cases
or indicating that the sole basis for the rule was an employer's right of
subrogation. E.g.,Brown v. Wal- Mart Discount Cities, 12 S.W.3d 785 (Tenn.
2000); Samuelson v. McMurtry, 962 S.W.2d 473 (Tenn. 1998); George v. Alexander,
931 S.W.2d 517 (Tenn. 1996). Accordingly, the majority's claim that its
new decision is consistent with the doctrine of stare decisis is unconvincing.
|||All of the people of Tennessee, its citizens and corporations, its bench
and bar, have relied on the rules laid down by McIntyre, Ridings, and their
progeny, as have those who have made subsequent laws and all have made choices
in reliance on these principles. The rules have worked and will work in
practical terms and to repudiate them will cause serious inequity and hardship.
Because neither the facts nor the circumstances nor the surrounding legal
principles have changed, this Court's re-examination of this case has no
justification beyond a present doctrinal decision to reach a different result
from the unanimous Ridings Court. That is a grossly inadequate basis for
overruling a prior case and is a threat to the institutional consistency
of the Supreme Court.
|||In McIntyre, this Court acted in the interest of sound policy and adopted
a system of modified comparative fault based on fairness to both plaintiffs
and defendants. Our unanimous decision in Ridings was expressly based on
McIntyre. There is nothing in this case that demonstrates Ridings was wrongly
decided or should be abandoned in all but workers' compensation cases. Although
the majority states that the motivation for its new decision is to achieve
fairness by more closely linking a party's liability with his or her degree
of fault, the majority's discussion does not consider a "pure"
system of comparative fault. Instead, the majority's failure to apply Ridings
simply indicates that it has opted for a different policy.
|||The doctrine of stare decisis is one of "paramount importance"
and the power of the Court to overrule prior decisions should be used sparingly.
Barnes v. Walker, 234 S.W.2d at 649. Because I am convinced that the majority's
decision creates inconsistency in the law and undermines the reliability
of this Court's decisions as an institution, I believe this is a classic
example of when adherence to stare decisis is appropriate. I therefore dissent.
|||E. RILEY ANDERSON, CHIEF JUSTICE
The evidence in this case indicates that sepsis is a bacterial infection.
External symptoms of sepsis include fever, hyperventilation, skin rash,
and decreased urine output. Blood cultures of individuals infected with
sepsis may reveal the presence of bacteria or a low white blood cell count.
Once a diagnosis of sepsis is suspected, it is generally recommended that
intravenous antibiotic therapy be initiated as quickly as possible. In addition,
administration of intravenous fluids is used to complement the antibiotic
The term "defendants" refers collectively to Dr. Whitney, Dr.
Barnes, and LeBonheur.
Although generally used to prevent negligent plaintiffs from recovery, contributory
negligence was subject to a number of exceptions that mitigated the harshness
of the "all or nothing" rule. See McIntyre v. Balentine, 833 S.W.2d
52, 55 (Tenn. 1992).
While virtually all jurisdictions have adopted some form of comparative
fault, five jurisdictions retain the traditional system of contributory
negligence. See Williams v. Delta Int'l Mach. Corp., 619 So. 2d 1330 (Ala.
1993); Holmes v. Amerex Rent-A-Car, 710 A.2d 846 (D.C. 1998); Harrison v.
Montgomery County Bd. of Educ., 456 A.2d 894 (Md. 1983); Jones v. Rochelle,
479 S.E.2d 231 (N.C. Ct. App. 1997); Gravitt v. Ward, 518 S.E.2d 631 (Va.
By adopting the nonparty defense, we implicitly rejected the minority position
permitting allocation of fault only to parties before the court. See, e.g.,
Alaska Stat. § 09.17.080 (Michie 1999); Bradford v. Herzig, 638 A.2d 608,
612 (Conn. App. Ct. 1994); Schwennen v. Abell, 430 N.W.2d 98, 102 (Iowa
1988); Bencivenga v. J.J.A.M.M., Inc., 609 A.2d 1299, 1303 (N.J. Super.
Ct. App. Div. 1992); Eberly v. A-P Controls, Inc., 572 N.E.2d 633, 638 n.5
(Ohio 1991); Brown v. Washington County, 987 P.2d 1254, 1262 (Or. Ct. App.
1999); Kelly v. Carborundum Co., 453 A.2d 624, 627 (Pa. Super. Ct. 1982);
Tex. Civ. Prac. & Rem. Code Ann. § 33.003 (West 1997).
Again, an example illustrates this proposition. An employee may bring a
cause of action against two tortfeasors, one of whom successfully raises
as a defense, the running of the statute of limitations. While the employee
cannot recover damages from this tortfeasor, the jury is still free to allocate
fault to this nonparty.
See, e.g., Ariz. Rev. Stat. § 12-2506A (1998); DaFonte v. Up- Right, Inc.,
828 P.2d 140, 141 (Cal. 1992) ; Painter v. Inland/Riggle Oil Co., 911 P.2d
716, 719 (Colo. Ct. App. 1995); Y.H. Inv., Inc. v. Godales, 690 So. 2d 1273,
1278 (Fla. 1997); Espaniola v. Cawdrey Mars Joint Venture, 707 P.2d 365,
372-73 (Haw. 1985); Pocatello Indus. Park Co. v. Steel West Inc., 621 P.2d
399, 403 (Idaho 1980); Bofman v. Material Serv. Corp., 466 N.E.2d 1064,
1071 (Ill. App. Ct. 1984); Ind. Code § 34-51-2-7(b)(1) (1999); Brown v.
Keill, 580 P.2d 867, (Kan. 1978); La. Civ. Code Ann. art. 2323 (West 1997);
Lines v. Ryan, 272 N.W.2d 896, 902-02 (Minn. 1978); Estate of Hunter v.
General Motors Corp., 729 So. 2d 1264, (Miss. 1999); Sena v. N.M. State
Police, 892 P.2d 604, 607 (N.M. Ct. App. 1995); Haff v. Hettich, 593 N.W.2d
383, 388 (N.D. 1999); Bode v. Clark Equip. Co., 719 P.2d 824, 826 (Okla.
1986); Utah Code Ann. § 78-27-38 ( Supp. 1999); Wash. Rev. Code Ann. § 4.22.070(1)
(1999); Cline v. White, 393 S.E.2d 923, 925 (W. Va. 1990); Connar v. West
Shore Equip. of Milwaukee, Inc., 227 N.W.2d 660, 662 (Wis. 1975); Board
of County Comm'rs v. Ridenour, 623 P.2d 1174, 1191 (Wyo. 1981).
The plaintiff's action against the employer fell under the workers compensation
The majority asserts that it is joining the "vast majority" of
comparative fault jurisdictions which, unlike Ridings, "broadly permit
allocation of fault to all persons involved in an injury causing event."
It should be pointed out, however, that several of the jurisdictions have
taken this position through legislative acts and not through the development
of case law. E.g., Ariz. Rev. Stat. § 12-2506A (1998). Moreover, I note
that a number of other cases, including all states in the sixth federal
circuit, do not allocate fault to all the persons involved. Bradford v.
Herzig, 638 A.2d 608 (Conn. App. Ct. 1994); Payne Plumbing & Heating
Co. v. Bob McKiness Excavating & Grading, 382 N.W.2d 156 (Iowa 1986);
Baker v. Webb, 883 S.W.2d 898 (Ky. Ct. App. 1994); Anderson v. Harry's Army
Surplus, Inc., 324 N.W.2d 96 (Mich. Ct. App. 1982); Adams v. Children's
Mercy Hospital, 848 S.W.2d 535 (Mo. App. 1993), overruled on other grounds,
897 S.W.2d (Mo. 1995); Eberly v. A-P Controls, Inc., 572 N.E.2d 633 (Ohio
1991); Ewen v. McLean Trucking Co., 689 P.2d 1309 (Or. Ct. App. 1984), reversed
on other grounds, 706 P.2d 929 (Or. 1985). Thus, the principle in Ridings
is not an isolated or unworkable view.
I would also observe that the majority has chosen the new course without
briefing or consideration of other alternatives for addressing the risk
of loss created by the presence of an immune nonparty, such as distributing
the fault of an immune nonparty between the parties.
Ridings is therefore in stark contrast to the cases cited by the majority
in which the Court has departed from stare decisis. For example, in State
v. Dominy, 6 S.W.3d 472 (Tenn. 1999), we overruled a rule that had proven
to be unworkable for trial courts and unfair to both the State and defendants.
In State v. Reeves, 916 S.W.2d 909 (Tenn. 1996), we overruled a rule that
no longer was consistent with amended statutory law. In State v. Kendricks,
891 S.W.2d 597 (Tenn. 1994), we overruled a doctrine that was initiated
in 1848, had an explicitly sexist genesis, was unworkable and prejudicial
to defendants. In State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992), we
overruled a prior interpretation of law based specifically on the Tennessee
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