The Tennessee Supreme Court permits juries to allocate fault to immune nonparties in negligence actions

Torts–Carroll v. Whitney: The Tennessee Supreme Court permits juries to allocate fault to immune nonparties in negligence actions

Bean, Joseph

On March 22, 1992, Forestine Carroll contacted her fourteen-month-old daughter Jessica’s pediatrician, Dr. Carolyn Whitney, after Jessica had been vomiting and running a fever between 100 and 105 degrees.1 Dr. Whitney agreed to see Jessica in her office the following day, although Jessica’s temperature had fallen and her vomiting had ceased.2 Additionally, Dr. Whitney recommended that Mrs. Carroll take Jessica to the emergency room if Jessica’s vomiting continued or if her fever began to rise again.3 Upon examining Jessica the next day, although her fever was only slight, Dr. Whitney found Jessica to be unresponsive with a low white blood cell count.4 Jessica was then promptly admitted

to LeBonheur Children’s Medical Center (LeBonheur).5 Dr. Whitney ordered that Jessica be administered antibiotics and intravenous fluids and that a complete blood count be performed.6 Other than ordering the blood count, Dr. Whitney did not submit any information regarding Jessica’s low white blood cell count in her admission orders.7

At LeBonheur, Jessica was examined at approximately 1:00 p.m. by two University of Tennessee resident physicians: Dr. Reggie Lyell, a first-year resident physician, and Dr. Azra Sehic, the supervising resident.8 Dr. Sehic ordered blood tests to be administered after becoming concerned that Jessica might be suffering from pneumonia with possible sepsis.9 Subsequently, Dr. Lyell called Dr. Whitney and informed her that Jessica’s condition was stable.10 to Both of the resident physicians were aware of the antibiotic and fluid treatments ordered by Dr. Whitney.11 Dr. Sehic even later admitted that antibiotics, once recommended, should be administered to the patient within thirty minutes.12

Around 3:30 p.m., Dr. Lyell contacted Dr. Sehic to inform her that the tests performed on Jessica’s blood revealed the presence of bacteria.13 At this point, Jessica had still not received the antibiotic and fluid treatments ordered by Dr. Whitney although more than two and one-half hours had passed since Jessica’s initial examination at LeBonheur.14 After Dr. Sehic examined Jessica again, he concluded that she needed to receive intravenous fluids and that she should be transferred to LeBonheur’s intensive care unit.15 A short time later, Jessica suffered a seizure and lapsed into a state of unconsciousness that lasted until her death at approximately 6:30 that evening.16 Pneumonia and sepsis were ultimately determined to be the causes of Jessica’s death.17

After Jessica’s death, James and Forestine Carroll (Plaintiffs) initiated a medical malpractice action against the following: Lebonheaur, Dr. Whitney, Dr. Grover Barnes, who was Dr. Whitney’s employer (Defendants), and against Dr. Sehic and Dr. Lyell (Residents).18 The Residents filed a motion to dismiss pursuant to section 9-8-307 of the Tennessee Code, which grants immunity to state employees. 19 The trial court granted the Residents’ motion, and the Plaintiffs then voluntarily dismissed the malpractice action against the remaining Defendants.20

Subsequently, the Plaintiffs re-filed the medical malpractice action against the non-immune Defendants.21 The

Plaintiffs also filed a claim in the Claims Commission against the State of Tennessee for the actions of the Residents.22 At trial, in the Shelby County Circuit Court, the Defendants, referring to the claim against the state, argued that the immune Residents’ negligence, rather than their own conduct, was the cause of Jessica’s death.23 Accordingly, the circuit judge instructed the jury to apportion fault among the Defendants, the Residents, and Forestine Carroll.24 After deliberation, the jury apportioned seventy percent fault to Dr. Lyell, thirty percent fault to Dr. Sehic, and no fault to the Defendants and Forestine Carroll.25

The Tennessee Court of Appeals reversed the judgment of the trial court, holding that, because the Residents were immune from suit, the jury should not have been allowed to apportion fault to them.26 The court of appeals also concluded that allowing the jury to apportion fault to the Residents was not harmless error because it was not clear whether the jury would have assigned no fault to the Defendants had it not been permitted to allocate fault to the immune Residents.27 Subsequently, the Defendants filed an application for permission to appeal, which was granted by the Tennessee Supreme Court, in order to determine whether or not a jury may apportion fault to a nonparty.28 The Tennessee Supreme Court held, reversed. When a defendant raises the nonparty defense in a negligence action, a trier of fact may allocate fault to an immune nonparty. Carroll v. Whitney, 29 S.W.3d 14 (Tenn. 2000).29

Prior to the 1970’s, the doctrine of contributory negligence was the majority rule in the United States.30 Under the doctrine of contributory negligence, a plaintiff who was responsible in any degree for negligence that contributed to his injury was completely barred from recovery.31 Because of the increasing dissatisfaction with the absolute defense of contributory negligence, courts began to attempt to find a substitute method of dealing with cases where there was negligence by both parties.32 Since approximately 1970, there has been a substantial shift toward systems of comparative negligence, carried out through both judicial and legislative processes.33 Presently, while virtually all states have adopted some form of comparative fault,34 five jurisdictions continue to apply the traditional system of contributory negligence.35 All other jurisdictions, including Puerto Rico and the Virgin Islands, employ some form of comparative negligence.36 These states and territories use one of the following types of comparative negligence to determine if a plaintiff is entitled to recovery:

(1) Pure comparative negligence, which allows a negligent plaintiff to recover no matter how large a portion of responsibility the trier of fact assigns to the plaintiff, as long as the trier of fact also assigns

some responsibility to a negligent defendant or defendants;

(2) Fifty percent (50%) form of modified comparative negligence, which allows a negligent plaintiff to recover if the plaintiffs negligence is equal to or less than that of the defendant or defendants;

(3) Forty-nine percent (49%) form of modified comparative negligence, which allows a negligent plaintiff to recover if the plaintiffs negligence is less than that of the defendant or defendants; and

(4) Slight-gross form of modified comparative negligence, which requires an apportionment of damages in all actions in which the plaintiffs negligence is slight and the defendant’s negligence is gross in comparison to the plaintiff’s.37

Thirteen jurisdictions use the pure form of comparative negligence,38 while thirty-four states and the Virgin Islands employ some variety of modified comparative negligence.39 Only South Dakota retains the slight-gross form of modified comparative negligence.40

One problem that has repeatedly arisen in these comparative fault jurisdictions is deciding to whom exactly the jury should apportion fault.41 The resolution of this question is important for both plaintiffs and defendants, because a plaintiff can only recover if the party in the suit is found to be liable.42 If the word “party” is read narrowly, the jury will only consider apportioning fault to parties to the actual lawsuit, therefore, in this scenario, the jury will not apportion fault to parties who contributed to the accident but who are not named as defendants.43 Conversely, a broad interpretation of “party” would mean that a jury could allocate fault to parties who were not involved in the suit but who were involved in the cause of action or transaction.44 The broad interpretation could include immune parties, settling codefendants, and parties who, for one reason or another, the plaintiff chose not to bring into the lawsuit.45

Accordingly, courts are split as to whether a jury should be permitted to allocate fault to a tortfeasor who has not been named as a defendant in the lawsuit. 46 For example, Florida permits juries to apportion fault to all tortfeasors involved in the transaction regardless of whether the tortfeasors have been named as defendants in the SUit.47 In Fabre, for instance, the plaintiff was injured in an accident that occurred while she was “riding as a passenger in a car driven by her husband.”48 At trial, the jury apportioned fifty percent fault to the defendant and fifty percent fault to the plaintiff s husband.49 The issue on appeal was whether the liability for noneconomic damages should be allocated to the defendants on the basis of the fifty percent fault attributed to

them.50 The court of appeal, noting that interspousal tort immunity prevented the plaintiff from recovering from her husband, determined that when the Florida legislature discarded joint and several liability they did not intend to prevent a fault-free plaintiff from recovering the total amount of her damages.51 Instead, the court of appeal held that “the legislature intended only to apportion liability among those tortfeasors who were defendants in the lawsuit.” Accordingly, the court affirmed 100 percent of the judgment against the defendants even though the jury had only allocated fifty percent of the fault to them.52 The Supreme Court of Florida, basing its holding on its own interpretation of the statute in question, quashed the judgment of the court of appeal and remanded, holding that “[c]learly, the only means of determining a party’s percentage of fault is to compare that party’s percentage to all of the other entities who contributed to the accident, regardless of whether they have been or could have been joined as defendants.”53

A similar result was reached in the Wisconsin case of Connar v. West Shore Equipment of Milwaukee, Inc. 54 In that case, a wrongful death action was brought by an employee’s widow against the manufacturer and the distributor of the machine that the employee was operating at the time of his death.55 After judgment was entered against the manufacturer, the manufacturer appealed, alleging prejudicial error based upon the trial court’s failure to ask the jury to consider the negligence of the deceased’s employer when apportioning fault.56 The Wisconsin Supreme Court held that, when apportioning negligence, the jury must be given the opportunity to consider the fault of all parties to the transaction, regardless of whether they can be liable to the plaintiff or other tortfeasors, either by operation of law or because of a prior settlement agreement.57

Like Florida and Wisconsin, the vast majority of jurisdictions in the United States permit allocation of fault by the jury to all persons involved in the injury-causing event.58 There are, however, some comparative fault jurisdictions that do not permit the jury to apportion fault to persons or entities which are not parties named in the lawsuit.59 In Straley v. United States,60 for example, the United States District Court for the District of New Jersey, interpreting New Jersey state law, denied the defendant’s motion to consider the fault of one Gumaer, the plaintiffs nonparty co-employee who was driving the vehicle on which the injured plaintiff was riding, when apportioning liability among the parties.61 The court reasoned that “because Gumaer or his employer are not a party to the suit and could not be considered joint tortfeasors, Gumaer’s negligence could not be considered by the jury on the issue of comparative negligence.”62

Similarly, in Ryden v. Johns-Manville Products,63 the court held that an employer who was immune from liability because of the workers’ compensation bar could not be joined in a negligence action.64 Interpreting a Pennsylvania statute, the court determined that, since the statute made it clear that only defendants who may be found liable can have negligence allocated to them by the jury, the jury was precluded from allocating fault to the employer.65

The Supreme Court of Tennessee replaced the common law doctrine of contributory negligence when it adopted the forty-nine percent form of modified comparative negligence in McIntyre v. Balentine.66 In McIntyre, the Tennessee Supreme Court also concluded that the adoption of comparative fault rendered “the doctrine of joint and several liability obsolete.”67 In order to permit the defendant to take advantage of the new comparative fault system, the court acknowledged the adoption of the nonparty affirmative defense:

[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. However, 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.68

Thus, the ability of a plaintiff to bring a cause of action was important only in determining whether the plaintiff would be able to recover damages, not whether a jury could allocate fault to a nonparty.69 After the conclusion of the case, the plaintiff in McIntyre filed a petition for rehearing requesting argument on the supreme court’s treatment of nonparty tortfeasors.70 The court, however, denied the rehearing, reasoning that 71 “such further guidance should await an appropriate controversy.”71

In 1996, the Supreme Court of Tennessee took the opportunity to address this issue in Ridings v. Ralph M. Parsons Co.72 The plaintiff in Ridings was a worker who suffered personal injuries “when he fell from a ladder during the scope and course of his employment.”73 The issue before the court was whether the defendants in this negligence action could “assert as an affirmative defense that the plaintiff’s employer caused or contributed to the plaintiffs injuries and damages, notwithstanding that the injuries alleged were sustained in the course and scope of the plaintiffs employment which was covered by the workers’ compensation law

of Tennessee.”74 The workers’ compensation law prevented the plaintiff from maintaining a cause of action for damages against the employer.75 The defendant argued that “excluding the plaintiffs employer from those persons to whom fault may be attributed violates the McIntyre principle that defendants will be liable only for the percentage of a plaintiffs damages occasioned by that defendant’s negligence.”76 Furthermore, the defendants argued that fault could be attributed to the employer, and that the liability of the defendants could be decreased accordingly, without imposing liability upon the employer.77 Ultimately, the Tennessee Supreme Court held that “[s]ince the plaintiffs employer cannot be made a party to the plaintiffs tort action for personal injuries .. the rationale of McIntyre, both as to principle and procedure, will not permit fault to be attributed to the plaintiff’s employer.”78

The decision made by the Tennessee Supreme Court in Ridings was challenged in Snyder v. LTG Lufttechnische GmbH.79 In Snyder, the supreme court held that it would be impermissible for products liability defendants to introduce evidence that the immune “employer’s alteration, change, improper maintenance, or abnormal use” of the product was the proximate cause of the plaintiffs injuries in a suit for personal injuries based on allegations of negligence and strict liability.80 However, the court would allow the defendants to present evidence that the employer’s conduct was the cause in fact of the plaintiff’s injuries.81 The court reasoned that not permitting the trier of fact to consider the employer’s conduct when determining the cause in fact element of negligence would essentially preclude the defendants from presenting a defense. 82 Moving to the question of whether the jury may consider the employer’s conduct when apportioning fault, the supreme court emphatically stated that “[t]he defendants may not … ask the jury to assign fault to the employer,”83 thereby negating the defendants’ assertion that the Ridings rule was incorrect and should be overruled.84 The Snyder court determined that by allowing the defendants to ask the jury to consider allocating fault to the employer, it would effectively permit the defendants to take the position that the employer’s actions were the proximate cause of the plaintiffs injuries, which, for the foregoing reasons, was impermissible.85

In Carroll v. Whitney,86 the Tennessee Supreme Court was again presented with the issue of whether or not to allocate fault to an immune nonparty in a comparative negligence case.87 In its analysis of the case, the court noted that its holding in Ridings 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.”88 However, the Carroll court noted that after carefully reviewing McIntyre, neither its holding nor its underlying rationale limited the apportionment of fault solely to parties against whom the plaintiff had a cause of action in tort.89 “[The] treatment of nonparties in McIntyre simply examined a plaintiff’s ability to recover damages from a nonparty, and [the] holding was limited accordingly.”90

Additionally, in discussing its holding in Snyder, the Tennessee Supreme Court cautioned that although the jury could not consider the evidence for the purpose of determining proximate cause, the practical effect of the Snyder decision was to invite trial courts to depart from the rule set forth in Ridings.91 Applying this

statement to the Carroll case, the court noted that “[e]ven assuming that the trial court in this case erred in permitting the jury to apportion fault [to the immune nonparties], any error would have to be harmless.”92 The court continued by observing that the jury was presented with a complete picture of the circumstances leading up to Jessica Carroll’s death; thus, given this opportunity, the jury found that the Defendants were not responsible for Jessica’s death in any way.93 Furthermore, the court added “[flt 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.”94

On the other hand, as the Tennessee Supreme Court noted, a conclusion that the trial court’s conduct constituted harmful error would require future courts to either exclude evidence of an immune nonparty’s conduct, thereby blindfolding the jury to relevant evidence, or courts would have to force the jury to allocate fault among parties who were not wholly responsible for the injury.95 The court then stated that it would decline to make this decision.96

Accordingly, the Tennessee Supreme Court reversed the decision set forth by the court of appeals, ultimately holding that “when a defendant raises the nonparty defense in a negligence action, a bury may generally apportion fault to immune nonparties.”97 The court reasoned that, while its decision to depart from Rydings and Snyder was prompted primarily by the effect harmless error has on Tennessee’s system of comparative fault, its decision was also grounded in the reasoning that led the Tennessee Supreme Court to adopt a system of comparative fault in the first place: “fairness to the parties by linking fault with liability.”98 The court supported this assertion by stating the following:

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.99

Moreover, the Carroll court defended its ruling by noting that, if the Snyder rule were upheld, thereby precluding juries from apportioning fault to parties who are immune from suit but who may have been responsible for the injury, the likelihood would be great that a `bury will allocate to a defendant fault that properly lies elsewhere.”100

In spite of its ruling, the court specifically dictated that, although its current decision achieved a result distinct from Ridings and Snyder, those cases were not overruled. 101 Instead, those cases remain uniquely applicable to the apportionment of

fault in workers’ compensation cases.102 “In such cases, the employer’s liability [will be] exclusively governed by the Workers’ Compensation Law.”103 The court then proceeded to observe that while an employee will be unable to bring a tort action against the employer, such employee may seek damages from some person other than the employer.104 The Supreme Court of Tennessee concluded its opinion by stating “[o]ur reason for retaining Ridings and Snyder in these cases is simple and consistent with the standard otherwise applicable: fairness.”105 Although it may have been tempted to adopt the minority view concerning the allocation of fault to nonparty tortfeasors, the Carroll court opted to follow the majority rule. When fairness factors are thoroughly considered, the result is that the Tennessee Supreme Court made the correct decision.

By not allowing the jury to apportion fault to nonparties, the court would have effectively opened the door to inequity. Jurors, being human beings, would be tempted to vindicate the sufferings of a plaintiff by wrongfully apportioning 100 percent of the fault to parties who were not wholly responsible. This is particularly true in the context of a medical malpractice case where, as in Carroll, an innocent person has died as a direct result of the ineptitude of a trained and licensed professional.106

By following the majority of jurisdictions and permitting the trier of fact to apportion fault to immune nonparties, it is much more likely that the objective of the comparative fault system will be realized-allocating the correct percentage of fault to the respective responsible parties. Furthermore, the aggrieved plaintiff will still have the option of obtaining relief from the state in the Claims Commission if the immune nonparty is an employee of the state, which is the case more often than not. 107

As a result of the Carroll decision, it appears that Tennessee’s comparative fault law in this area is now stable and consistent. This result is desirable for both practitioners and their clients, for they now will be able to more accurately anticipate the consequences of a negligence action.


Notes Editor, The University of Memphis Law Review; Juris Doctor Candidate, May 2002, The University of Memphis, Cecil C. Humphreys School of Law; M.A., summa cum laude, The University of Memphis, 1999; B.A., The University of Memphis, 1997.

Copyright University of Memphis Fall 2001

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