§15.12 Applicability to Nuisance
The Case: Manis v. Gibson, No. E2005-00007-COA-R3-CV, 2006 WL 521466 (Tenn. Ct. App. Mar. 3, 2006).
The Basic Facts: Plaintiff brought a nuisance claim alleging that a road built by defendant affected the water drainage across Plaintiff's land. Defendant asked the Court to apply comparative fault.
The Bottom Line:
- "In this regard, we have observed: '[O]ne who interferes with the natural current of a stream is responsible absolutely, and without any question of negligence, for damages thereby caused to one who is entitled to have the water flowing in its natural state.' Tenn. Elec. Power Co. V. Robinson, [1928 WL 2125, at *2 (Tenn. Ct. App. July 13, 1928)]. It is well settled that 'a wrongful interference with the natural drainage of surface water causing injury to an adjoining landowner constitutes an actionable nuisance.'" Zollinger v. Carter, 837 S.W.2d 613, 615 (Tenn. Ct. App. 1992) (quoting Butts v. City of South Fulton, 565 S.W.2d 879, 881 (Tenn. Ct. App. 1977)). Prior to Tennessee's adoption of comparative fault, ordinary contributory negligence was not a defense to a nuisance action based upon absolute liability, but the plaintiff's gross negligence could act as a defense based upon 'the principle of acceptance of the risk of a known danger.' Llewellyn v. City of Knoxville, 232 S.W.2d 568, 576 (Tenn. Ct. App. 1950)." 2006 WL 521466 at *4.
- "In the seminal case abandoning the common-law doctrine of contributory negligence, and adopting comparative fault, the Supreme Court McIntyre v. Balentine, 833 S.W.2d 52, 56 (Tenn. 1992), said: 'so long as a plaintiff's negligence remains less than the defendant's negligence the plaintiff may recover; in such a case, plaintiff's damages are to be reduced in proportion to the percentage of the total negligence attributable to the plaintiff.' Id. at 57. However, the Court went on to emphasize the concept of fault over the concept of negligence by making clear that Tennessee's tort system is 'fault-based' and the '49 percent rule' is 'compatible with a fault-based tort system.' Id. The Court described this rule as 'more closely linking liability and fault.' Id. at 58." Id.
- "With more emphasis on fault than negligence the McIntyre Court compared fault rather than limit the system to comparisons of negligence. Fault embraces a broader class of conduct than does negligence. "Negligence implies a breach of a duty of care, while fault refers merely to an act imposing liability." McKinnie v. Lundell Mfg. Co., 825 F. Supp. 834, 839 (W.D. Tenn 1993) (applying Tennessee law). Therefore, "[t]he comparative fault system's focus on the parties' relative `fault' avoids the `apples and oranges' argument," which asserts that a plaintiff's negligent conduct cannot be compared to a defendant's non-negligent, though still tortious, conduct. Id." Id.
- "In Whitehead v. Toyota Motor Corp., 897 S.W.2d 684 (Tenn. 1995), the Tennessee Supreme Court confirmed its intention to compare fault, rather than only negligence, when it applied comparative fault principles to strict products liability. Id. at 693. The Whitehead Court noted that pre-McIntyre case law recognized that 'the concept of fault is inherent in the doctrine of strict products liability.'Id. at 688. This was true despite the fact that strict products liability could be imposed without proof of the manufacturer's negligence. Id. The Court further reasoned that because '[t]he conduct that leads to strict products liability involves fault, as the word 'fault' is commonly understood,' applying comparative fault principles in strict products liability actions was, '[i]n keeping with [McIntyre's] principle of linking liability with fault.' Id. at 693." Id. at *5.
- "The Whitehead Court's treatment of strict products liability is instructive because such liability is analogous to the absolute liability imposed for interference with the natural drainage of surface water. Compare Ellithorpe v. Ford Motor Co., 503 S.W.2d 516, 522 (Tenn. 1973) (discussing strict products liability) with Tenn. Elec. Power Co., [1928 WL 2125, at *2 (Tenn. Ct. App. July 13, 1928) (discussing interference with natural drainage)." Id.
- "A nuisance action based upon interference with the natural drainage of surface water is actionable only if the interference is 'wrongful' and causes injury to an adjoining land owner. Zollinger. Talley v. Baker, [1926 WL 2057, at *2-3 (Tenn. Ct. App. May 22, 1926)]; Gregory v. Jenkins, 665 S.W.2d 397, 399 (Tenn. Ct. App. 1983); Blackwell v. Butler, 582 S.W.2d 760, 764 (Tenn. Ct. App. 1978). Thus, a nuisance action based upon a 'wrongful' interference with the natural drainage of surface water necessarily involves fault because such an interference is an act violating the plaintiff's property rights and imposing liability upon the defendant. Because such an action necessarily involves fault, applying principles of comparative fault is in keeping with McIntyre's principle of linking liability with fault. We affirm the Trial Judge's applying the principles of comparative fault to this case." Id.