§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 actor^FN21 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.

  Appendix
  MULTI-PARTY JURY VERDICT FORM

  
  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).