Tennessee Attorneys Memo

Highlights

• Supreme Court resolves post-McIntyre issues, including assessment of liability among joint tort-feasors, apportionment of share of fault to employers, apportionment of fault between plaintiff in auto accident and physician who renders negligent treatment, and viability of family purpose doctrine, page 3.
• Supreme Court abandons "physical manifestation" or "injury" rule to determine validity of prima facie case of negligent infliction of emotional distress, page 5.
• Supreme Court holds privilege against self-incrimination does not prohibit admission of evidence at trial of defendant's refusal to submit to blood or breath alcohol test, page 5.
• Supreme Court Workers' Compensation Panel says compliance with TCA 68-11-402 et seq. must be shown before hospital records may be admitted by affidavit of custodian of records, page 8.
• Court of Appeals, in case of first impression, rules venue for cause of action for abuse of process is in county where process is issued, as opposed to county where it is served, page 9.
• Court of Appeals upholds constitutionality of exclusion of occupancy by owner of condominium unit from provisions of Uniform Residential Landlord and Tenant Act, page 10.
• Court of Criminal Appeals says if probation is made part of sentences, it must run in same manner -- consecutively or concurrently -- as periods of incarceration, page 14.
• Sixth Circuit, in en banc decision, reverses federal convictions of former state court judge for willful deprivation under color of law of constitutional rights of female employees and litigant whom he allegedly sexually assaulted, page 16.

Supreme Court clears more post-McIntyre hurdles

The transition. Perhaps better than any hypothetical, the facts in Owens v. Truckstops of America, 21 TAM 6-1, illustrate several problems caused by the switch from contributory negligence to comparative fault. A stool in a restaurant collapses, injuring the plaintiff. The plaintiff sues the owner/operator of the restaurant. The owner/operator files a third-party complaint against the manufacturer and seller of the stool. The Supreme Court adopts comparative fault principles. The owner/operator seeks to amend its answer to assert that the manufacturer and seller caused or contributed to the plaintiff's injury. The plaintiff, after the statute of limitation has run, seeks to amend his complaint to add the seller and manufacturer as defendants.

The Supreme Court held that the plaintiff was barred from recovering against the seller and manufacturer. When the statute of limitation has run, TCA 20-1-119, which became effective May 18, 1993, allows a plaintiff 90 days to add as a defendant any individual or entity alleged by an original defendant to have caused or contributed to the injury. TCA 20-1-119 did not aid the plaintiff because it was enacted after the applicable statute of limitation had run on claims against the manufacturer and seller.

The manufacturer filed a motion to dismiss the owner/operator's third party complaint on the ground that the rights of indemnity and contribution among tort-feasors were abolished in McIntyre. Comparative fault cases previously decided by the Supreme Court establish that when separate, independent negligent acts of more than one tort-feasor combine to cause a single, indivisible injury, each tort-feasor will be liable only for that proportion of the damages attributable to its fault. Bervoets v. Hardy Ralls Pontiac-Olds Inc., 891 SW2d 905 (Tenn. 1994). The Supreme Court ruled, in Owens v. Truckstops of America, supra, as in Bervoets, that fairness demanded that contribution be allowed.

Third party actions. The owner/operator asserted third-party claims based on negligence, strict liability in tort, and breach of implied warranty of merchantability. The application of comparative fault principles to the negligence claim is simple -- the owner/operator is entitled to contribution according to the percentage of fault attributable to each tort-feasor. With respect to the other claims, the court traveled down a road of unanswered questions:

• Products liability. The court held that the plaintiff's fault is compared with the fault of the strictly liable defendants -- those in the chain of distribution of the product -- as a single unit. The strictly liable defendants are jointly and severally liable only for that percentage of the plaintiff's damages caused by the product. If the defendants who can be held jointly and severally liable on a claim of strict liability are also charged with negligence, their liability on the negligence charge will be as separate, independent tort-feasors, and their liability on the negligence charge will be several only.

• Indemnity. The owner/operator sought indemnity on the basis that its negligence was passive, while the negligence of the manufacturer and seller was active. The court held that the active-passive negligence distinction was subsumed into the doctrine of comparative fault. The active-passive distinction is no longer determinative of the right to seek indemnity. Distinctions between active and passive negligence may be factors in assessing the percentage of fault of the parties. When implied indemnity is based on the legal relationship between the parties, the traditional principles of indemnity continue to apply.

• Breach of implied warranty. The court held that comparative negligence may be pled as a defense in an action for damages for personal injuries based on breach of implied warranty of merchantability of a product.

The Supreme Court held that fault cannot be attributed to the plaintiff's employer. In McIntyre, the court stated 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." Hence, the court reasoned that only a nonparty against whom the plaintiff has a cause of action can be made a party. Employers are immune from suits by employees under workers' compensation laws.

Imputed liability. In Camper v. Minor, 21 TAM 6-4, the Supreme Court, for the first time, addressed the impact of comparative fault on imputed negligence principles. The precise issue before the court was the continued viability of the family purpose doctrine.

The court stated that its earlier rulings in Bervoets and Volz v. Ledes, 895 SW2d 677 (Tenn. 1995), concerning the abolishment of joint and several liability referred to apportioning liability among persons whose active negligence contributed to the plaintiff's injury. These statements do not affect the viability of the family purpose doctrine, which imputes the actions of the driver to the head of the household as a matter of public policy.

The court's holding should clarify the application of comparative fault principles in similar factual situations, e.g., when liability is placed on an employer for an employee's act or when liability of a doctor is imputed to a hospital.

Medical malpractice. In Volz, supra, the Supreme Court applied the principles of comparative fault to a medical malpractice action and held that a physician is liable for that portion of the plaintiff's damages that was proximately caused by the physician's negligence. Gray v. Ford Motor Co., 21 TAM 6-3, presented a different twist.

A driver was injured in a one-car accident. The driver was taken to the hospital where she died from a "ruptured spleen." The complaint, which was filed in federal district court, alleged that the driver's death was caused by a defective and unreasonably dangerous passenger restraint system in the vehicle and by the negligence of a doctor in the treatment of the decedent for the injury sustained in the accident.

The jury found that the manufacturer of the restraint system was without fault, that the doctor was negligent and caused the driver to suffer injuries that would not otherwise have occurred, and that the driver was negligent in the operation of her vehicle. The jury attributed 55% of the total fault to the doctor and 45% to the driver.

In response to a certified question of state law from the Sixth Circuit Court of Appeals, the Tennessee Supreme Court held that fault could be apportioned between the estate of a decedent who acted negligently in causing the initial injury and a physician who acted negligently in treating the decedent for that injury.

Review. For a review of previous decisions of the Supreme Court addressing comparative fault issues, reference may be made to the following articles previously appearing in Tennessee Attorneys Memo: Courts Continue to Sift Through McIntyre Maze, 18 TAM 37 (Sept. 13, 1993); Implied Assumption of Risk No Longer Complete Bar to Recovery, 19 TAM 10 (March 7, 1994); Comparative Fault Analysis Is Clarified, 19 TAM 45 (Nov. 7, 1994); and Another Piece Added to Post-McIntyre Puzzle, 20 TAM 19 (May 8, 1995).

TENNESSEE ATTORNEYS MEMO (ISSN 0194-1259) is published weekly for $357 per year for law firms and $307 per year for sole practitioners by M. Lee Smith Publishers & Printers LLC, 162 4th Avenue N., P.O. Box 198867, Nashville, TN 37219-8867. Subscriptions, 615/248-5902; case copies, 615/248-5900; other calls, 615/242-7395. Copyright 1996 M. Lee Smith Publishers & Printers LLC. Reproducing in any form is a violation of federal copyright law and is strictly prohibited without the publisher's consent.