COVID-19 Update: How We Are Serving and Protecting Our Clients
Justia Lawyer Rating
Best Lawyers Badge
Lawyer of the Year 2014 Badge
Best Law Firms 2020 Badge
Peer Rated Badge
BBB Badge
Super Lawyers Badge
NBTA Badge
Lawyer of the Year 2012 Badge
Lawyer of the Year 2010 Badge
Lawyer of the Year 2009 Badge
Leaders Forum Badge
Pound Civil Justice Institute Badge
Brandon E. Bass Best Lawyers Badge
 The Law Offices of John Day, P.C. Best Lawyers Badge
Best Law Firms 2018 Badge
Attorney For Justice Badge

§15.13 Bifurcated Fault Allocations

The Case : Grandstaff v. Hawks, 36 S.W.3d 482 (Tenn. 2000).

The Basic Facts: Multi-car wreck resulted in multiple claims, including both drivers suing each other.

The Bottom Line:

  • "McIntyre v. Balentine was a typical two-party motor vehicle collision case. One driver sued the other driver for negligence, and the other driver denied that he was negligent and asserted that the plaintiff driver was contributorially negligent. The jury returned a verdict for the defendant after hearing evidence that both drivers had been drinking and that the plaintiff driver had been speeding. The Tennessee Supreme Court vacated the judgment and remanded the case for another trial based on its newly minted comparative fault principles. To assist the parties, the Court provided suggested jury instructions and a suggested verdict form suitable for two-party litigation only. See McIntyre v. Balentine, 833 S.W.2d at 59-60. The Court also invited the Committee on Civil Pattern Jury Instructions to promulgate new standard jury instructions and pointed out that modifications to its two-party instructions would be required for 'more complex litigation.' See McIntyre v. Balentine, 833 S.W.2d at 58, 59." 36 S.W.3d at 490.
  • "The Committee on Civil Pattern Jury Instructions responded to the Tennessee Supreme Court's invitation by issuing proposed instructions and verdict forms intended to replace the suggested instructions and forms appended to McIntyre v. Balentine. See 8 Committee on Civil Pattern Jury Instructions, Tennessee Pattern Jury Instructions T.P.I. 3-Civil 3.01 - 3.63 (3d ed. 1997) ("T.P.I. 3-Civil"). In addition to a two-party verdict form, see T.P.I. 3-Civil 3.59, the Committee also prepared a verdict form applicable to two-vehicle collision cases involving two drivers and two passengers. See T.P.I. 3-Civil 3.61. We have determined that this instruction is not satisfactory because it fails to differentiate between a passenger's fault that was a cause of the collision and a passenger's fault that only contributed to the passenger's injuries." Id. at 491.
  • "The Wisconsin Supreme Court has addressed this matter by distinguishing between the 'active' and 'passive' negligence of the passenger. Passive negligence contributes to the passenger's injuries but, unlike active negligence, is not a cause of the collision itself. The passenger's passive negligence is 'immaterial with respect to the right of one driver to recover from the other.' McConville v. State Farm Mut. Auto. Ins. Co. , 113 N.W.2d 14, 20 (Wis. 1962). Therefore, the jury may only compare the passenger's active negligence, that is the passenger's negligence that was a cause of the collision itself, with the negligence of the drivers. Then, it must separately consider the passenger's passive negligence, if any, to reduce the plaintiff's recovery." Id. at 493-94.
  • "Fairness, consistency, and efficiency are the hallmarks of the Tennessee Supreme Court's comparative fault scheme. Clearly linking liability with fault accomplishes these ends. See Owens v. Truckstops of Am., 915 S.W.2d at 428; McIntyre v. Balentine, 833 S.W.2d at 58. We find that the Wisconsin model creates a strong correlation between liability and fault and, accordingly, adopt a similar approach. In multi-party actions such as this one, the trial court should instruct the jury to engage in the following three-step process:

    1. First, as in any comparative fault case, the jury should determine the actual dollar amount of the damages incurred by each claimant FN19 individually without taking fault into consideration.FN20
    2. Second, the jury should allocate percentages of fault (totaling 100%) to each actorFN21 whose fault caused or contributed to the collision.FN22
    3. Third, the jury should state the percentage by which the claimant's conduct caused or contributed to his or her own injuries along with the percentage of fault collectively attributable to the actor or actors whose fault was the cause of the collision.
    FN20 See T.P.I. 3-Civil 3.61.

    FN21 In certain circumstances, the term 'actor' may include a non-party. If the defendant alleges that a non-party contributed to the plaintiff's injuries, the fact-finder may apportion fault to parties and nonparties, see McIntyre v. Balentine, 833 S.W.2d at 58, but only to persons against whom the plaintiff has a cause of action. See Samuelson v. McMurtry, 962 S.W.2d 473, 475 (Tenn. 1998); Owens v. Truckstops of Am., 915 S.W.2d at 428; Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 83 (Tenn. 1996). The plaintiff bears the risk of failure to join potentially liable tortfeasors against whom the plaintiff has a cause of action. See Samuelson v. McMurtry, 962 S.W.2d at 475; Ridings v. Ralph M. Parsons Co., 914 S.W.2d at 83. A defendant who fails to identify potentially liable tortfeasors who are not already parties pursuant to Tenn. Code Ann. § 20‑1‑119(a) (Supp. 1999), cannot attribute fault to these non-parties. See Samuelson v. McMurtry, 962 S.W.2d at 475; Ridings v. Ralph M. Parsons Co., 914 S.W.2d at 84.

    FN22 The shortcoming of T.P.I. 3-Civil 3.61 is that it does not differentiate between fault that caused the collision and fault that contributed to the passenger's injuries. It assumes that the actions or inactions of the passengers were a cause of the collision. While it is possible for passengers to be at fault for a collision, it is also possible that their fault, if any, only contributed to their own injuries."
    Id . at 495.
  • "Attached as an appendix to this opinion is a sample verdict form prepared in conformance with this opinion. Once the jury returns its verdict in this or a similar form, the trial court should then calculate the dollar amount of the damages recoverable by each claimant. To avoid error, these calculations should not be left to the jury." Id.
  • "In light of our analysis of the significant difference between fault that contributes to causing a collision and fault that contributes only to the claimant's injuries, we find that the trial court's instructions in this case were erroneous. However, under the facts of this case, we find that the error more probably than not did not affect the verdict and the judgment from which State Farm appeals and did not result in prejudice to the judicial process." Id.

    1. Without considering fault, what total of damages do you find was sustained by each of the parties making a claim:

    Name of claimant          $________________
    Name of claimant          $________________
    Name of claimant          $________________
    Name of claimant          $________________

    2. What percentage of fault do you attribute to each person whose conduct caused or contributed to the collision (these persons may include non-parties properly named by the defendants). Your answers must total 100%.

    Name of person            (0-100%)
    Name of person            (0-100%)
    Name of person            (0-100%)
    Name of person            (0-100%)
    Total 100%

    3. State the percentage by which the negligence of each claimant named in paragraph 1 caused or contributed to the claimant's own injuries (as opposed to the collision):

    Name of claimant            (0-100%)
    Name of claimant            (0-100%)
    Name of claimant            (0-100%)

    Name of claimant            (0-100%)
    Id. at 500.

Recent Cases: Mullins v. State , No. E2007-01113-COA-R9-CV, 2008 WL 199854 (Tenn. Ct. App. Jan. 24, 2008) (holding plaintiff was not collaterally estopped from pursuing claim against the State in the Claims Commission where a federal court jury in a separate federal court action against other defendants found no fault on part of State-employed doctor on verdict form because the issue of that doctor's fault was not actually litigated in federal court action nor did the plaintiff have full and fair opportunity in federal court action to litigate the fault of the State-employed doctor).

After an accident, many injury victims and their families want more information on the accident and their legal rights. Consequently, many of them have found their way to these pages. While we are happy you are here, please understand Day on Torts: Leading Cases in Tennessee Tort Law was written to be a quick, invaluable reference for Tennessee tort lawyers. While the book provides the leading case for more than 300 tort law subjects and thousands of related case citations, it is not a substitute for personalized legal advice from a qualified lawyer.

Rather than researching these legal issues alone, we urge you to contact one of our award-winning lawyers who can sit down with you, review your case, answer your questions and clearly explain your rights and your options in a no-cost, no-obligation consultation. Our experienced attorneys handle all personal injury and wrongful death cases on a contingency basis, so we only get paid if we win. If for any reason you are unable to come to our office, we will gladly come to you.

To schedule an appointment, contact us online or call us at 615-742-4880 or toll-free at 866.812.8787.

The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

To order a copy of the book, visit John also blogs regularly on key issues for tort lawyers. To subscribe to the Day on Torts blog, visit

Client Reviews
Everything was great. You guys are a great representative. I was satisfied with everything. Truly appreciate John Day and his hard-working staff. Jamar Gibson
We thought that you did an excellent job in representing us in our lawsuit. We would recommend you to anyone. Mitch Deese
The Law Offices of John Day, P.C. is, without a doubt, the best in Nashville! They treated me with the utmost respect and tended to my every need. No question went unanswered. I was always kept informed of every step in the process. I received phenomenal results; I couldn't ask for more. I would definitely hire The Law Offices of John Day, P.C. again. Anthony Santiago
I would definitely recommend to anyone to hire John Day's law firm because everyone was helpful, made everything clear and got the job done. I am satisfied with how my case was handled. June Keomahavong
It's been a long battle but this firm has been very efficient and has done a remarkable job for me! I highly recommend them to anyone needing legal assistance. Everyone has always been very kind and kept me informed of all actions promptly. Linda Bush
I had a great experience with the Law Offices of John Day. The staff was very accommodating, and my phone calls/emails were always responded to in a timely manner. They made the entire process very easy and stress-free for me, and I had confidence that my case was in good hands. I am very happy with the results, and I highly recommend! Casey Hutchinson