§15.14 Duty of Defendant to Allege Causative Acts or Omissions of Another
The Case: George v. Alexander, 931 S.W.2d 517 (Tenn. 1996).
The Basic Facts: Plaintiff's leg was injured after undergoing surgery which required administering spinal anesthesia beforehand. Plaintiff subsequently brought a malpractice action against two anesthesiologists who treated Plaintiff before surgery.
The Bottom Line:
- "This case presents the following issue for our determination: whether a defendant in a negligence case must, pursuant to Rule 8.03 of the Tennessee Rules of Civil Procedure, plead comparative fault as an affirmative defense if the defendant wishes to introduce evidence that a person other than itself caused the plaintiff's injury. We conclude that the defendant is required to affirmatively plead comparative fault in such a situation; and because that was not done in this case, we reverse the judgment of the Court of Appeals." 931 S.W.2d at 517.
- "[T]he defendants argue that Rule 8.03 is triggered only when the defendant seeks to show that another person was legally at fault for the plaintiff's injuries. Because negligence, the type of legal fault at issue here, requires proof of the elements of duty, breach of duty, causation in fact, proximate causation and injury, McClenahan v. Cooley, 806 S.W.2d 767, 774 (Tenn.1991), the defendants contend that Rule 8.03 does not apply unless they attempted to prove that Dr. Daniell's conduct satisfied all these elements." Id. at 520.
- "[T]he defendants' position ignores the fact that 'blame-shifting' in a negligence context actually has to do with the element of causation in fact. Once the defendant introduces evidence that another person's conduct fits this element, it has effectively shifted the blame to that person. Therefore, if the defendants' position were to be accepted, any defendant wishing to transfer blame to another person at trial could always maintain that it is not trying to show that the other's conduct satisfies the legal definition of negligence, but that it is merely trying to establish that the other person's conduct actually caused the injury. In the latter situation, however, the defendant has fully accomplished what Rule 8.03 was intended to prevent: it has effectively shifted the blame to another person without giving the plaintiff notice of its intent to do so. Therefore, the purpose of Rule 8.03 would be undermined to a substantial degree if the defendants' overly technical argument were to prevail." Id. at 521.
- "One final argument advanced by the defendants remains to be addressed. They argue that the purpose of Rule 8.03 was not violated in this case because the plaintiff was clearly aware of the possibility that Dr. Daniell had caused the injury. The defendants point out that the plaintiff's counsel actually elicited the quoted testimony from Dr. Allen; they also contend that the plaintiff's counsel met with Dr. Daniell well before trial to discuss whether he should be included in the suit. The defendants conclude that, because the plaintiff knew all the facts regarding Dr. Daniell's involvement, and had the opportunity to include him in the suit but simply chose not to do so, their failure to raise comparative fault as an affirmative defense did not prejudice the plaintiff." Id. at 522.
- "We decline to accept this "harmless error" argument. Rule 8.03 is a prophylactic rule of procedure that must be strictly adhered to if it is to achieve its purposes. It is designed to obviate the need for appellate courts to look into the record for actual prejudice each time a defendant introduces proof at trial of an unpleaded defense. To accept the defendants' argument on this point would invite evasion of a clearly-stated rule of procedure that is crucial to the equitable and efficient administration of a comparative fault system." Id. at 527.
- "(CONCURRING OPINION BY REID, J.) Consequently, where the defendant does not plead comparative fault, it will be held liable for 100 percent of the plaintiff's damages unless it is absolved of all liability. In other words, where a sole defendant does not plead comparative fault, there will be no apportioning of liability for damages even though the defendant may have been only partially at fault. Evidence which tends to establish the plaintiff or a non-party as a tortfeasor responsible for the damages alleged is not admissible unless the defendant has pled comparative fault as an affirmative defense." Id.
Recent Cases: Parsons v. Wilson County, No. M2014-00521-COA-R3-CV, 2015 WL 5178601 (Tenn. Ct. App. Sept. 3, 2015) (overturning trial court’s assignment of more than 50% of fault to plaintiff where defendant did not assert comparative fault in answer); Dickson v. Kriger, 374 S.W.3d 405 (Tenn. Ct. App. 2012) (where plaintiff sued for injury to eye during LASIK procedure, Court of Appeals affirmed admissibility of expert testimony that plaintiff’s injury was probably caused by a malfunction of the laser but overturned admissibility of expert testimony that plaintiff was at fault for his own injuries for not fixating on the light properly, despite fact that defendant did not plead and had specifically waived comparative fault defense; Court held that testimony regarding laser malfunction was “part of [defendant’s] defense that, in the absence of any deviation from the standard of care, these types of risks can and do occur during LASIK procedures”; Court relied on concurring opinion from George v. Alexander, 931 S.W.2d 517 (Tenn. 1996), which was specifically rejected by majority in George).