§15.19 Factors Considered in Fault Allocations

The Case: Eaton v. McLain , 891 S.W.2d 587 (Tenn. 1995).

The Basic Facts: Plaintiff brought this premises liability action against her daughter and son in law after she fell down a flight of basement stairs while a guest at Defendants home.

The Bottom Line:

  • "This case presents two issues for our determination: (1) whether the Court of Appeals was correct in holding that the trial court should have granted the defendants' motion for judgment notwithstanding the verdict because the 'evidence was overwhelming that the plaintiff's degree of fault was greater than or equal to that of the defendants'; and (2) whether the Court of Appeals was correct in its alternative holding - that the plaintiff failed to present legally sufficient evidence as to the duty element in her claims of negligence." 891 S.W.2d at 588.
  • "This Court's adoption of the doctrine of comparative fault in McIntyre does not change these standards governing the trial court's assessment of the evidence; nor does it change the established standard governing the trial court's ultimate decision of whether to grant the motion. The trial court still must take the strongest legitimate view of the evidence in favor of the non-movant; and it must grant the motion only if reasonable minds could not differ as to the legal conclusions to be drawn from that evidence." Id. at 590.
  • "The recitation of these standards of review does not, however, provide a satisfactory answer to the issue before us because McIntyre has radically changed the question to be asked by the trial court on a motion for directed verdict/JNOV which alleges negligence on the part of the plaintiff. The question now is not whether the plaintiff was guilty of any negligence that proximately caused the resulting injuries. Instead, the question is: assuming that both plaintiff and defendant have been found guilty of negligent conduct that proximately caused the injuries, was the fault attributable to plaintiff equal to or greater than the fault attributed to the defendant.FN3
    FN3 This is, of course, not the exclusive ground upon which the defendant may move for a directed verdict/JNOV in a negligence action. The motion may still be made on the ground that the plaintiff has failed to present legally sufficient evidence as to one of the elements of the cause of action. See the discussion of "The Duty Issue," infra."
    Id . at 590-91.
  • "The trial court's determination as to whether reasonable minds could differ on this new question is made more difficult by the fact that it has not been provided with any guidance as to how to apportion fault. The formulation of workable, meaningful standards to guide trial courts in this area is no simple matter; this is evidenced by the marked divergence of opinion of courts and commentators on whether fault should be apportioned according to the nature of the parties' conduct,FN4 the closeness of the causal relationship between the conduct and the injuries,FN5 or combination of the two.FN6 Some commentators have taken an extreme position on this issue, arguing that no rational or objective basis for the apportionment of fault exists.FN7
    FN4 See e.g., Gele v. Wilson, 616 F.2d 146, 147-48 (5th Cir. 1980); Pan-Alaska Fisheries, Inc. v. Marine Constr. & Design Co., 402 F.Supp. 1187 (W.D. Wash. 1975), vacated on other grounds, 565 F.2d 1129 (9th Cir. 1977); State v. Kaatz, 572 P.2d 775, 782 (Alaska 1977); V. Schwartz, Comparative Negligence, § 17.1 at 293-94 (1974); W. Prosser, Comparative Negligence, 51 Mich.L.Rev. 465, 481 (1953).

    FN5 See e.g., Murray v. Fairbanks Morse, 610 F.2d 149, 159(3d. Cir. 1979); Coney v. J.L.G. Industries, [454 N.E.2d 197, 203 (Ill. 1983)]; General Motors v. Hopkins, 548 S.W.2d 344, 352 (Tex. 1977); Busch v. Busch Constr., Inc., 262 N.W.2d 377, 394 (Minn. 1977); A. Twerski, From Defect to Cause to Comparative Fault - Rethinking some Product Liability Concepts, 60 Marq.L.Rev. 297, 326 (1977). Most of the authorities holding that causation is the only variable in the fault equation have done so in the context of products liability actions, where the conduct of the defendant is not an issue.

    FN6 See, e.g., Unif. Comparative Fault Act § 2(b), 12 U.L.A. 49 (1977); Prior v. United States Postal Service, [985 F.2d 440, 442 (8th Cir. 1993)]; Kreppein v. Celotex Corp., [969 F.2d 1424, 1426-27 (2d Cir. 1992)]; Cerretti v. Flint Hills Rural Elec. Co-op, [837 P.2d 330, 347 (Kan. 1992)]; Kohler v. Dumke, [108 N.W.2d 581, 583-84 (Wis. 1961)].

    FN7 The most forceful advocate of this view is probably Richard Epstein, a leading proponent of the Law and Economics School. See R. Epstein, Plaintiff's Conduct in Products Liability Actions: Comparative Negligence, Automatic Division and Multiple Parties, 45 J. Air L. & Com. 87, 109 (1979); see also Aiken, Proportioning Comparative Negligence - Problems of Theory and Special Verdict Formulation, 53 Marq.L.Rev. 293, 295 (1970)."
    Id . at 591.
  • "In summary, the percentage of fault assigned to each party should be depended upon all the circumstances of the case, including such factors as: (1) the relative closeness of the causal relationship between the conduct of the defendant and the injury to the plaintiff;FN9 (2) the reasonableness of the party's conduct in confronting a risk, such as whether the party knew of the risk, or should have known of it;FN10 (3) the extent to which the defendant failed to reasonably utilize an existing opportunity to avoid the injury to the plaintiff;FN11 (4) the existence of a sudden emergency requiring a hasty decision;FN12 (5) the significance of what the party was attempting to accomplish by the conduct, such as an attempt to save another's life;FN13 and (6) the party's particular capacities, such as age, maturity, training, education, and so forth.
    FN9 This factor is derived from the doctrine of remote contributory negligence. For a discussion of that doctrine, see Arnold v. Hayslett, 655 S.W.2d 941, 945 (Tenn. 1983); Street v. Calvert, 541 S.W.2d 576, 585 (Tenn. 1976).

    FN10 This factor is derived from the doctrine of "secondary implied assumption of risk" that was abolished in Perez v. McConkey, 872 S.W.2d 897 (Tenn. 1994).

    FN11 This factor is derived from the doctrine of last clear chance. For a discussion of this doctrine, see Roseberry v. Lippner, 574 S.W.2d 726, 728 (Tenn. 1978); Street v. Calvert, 541 S.W.2d 576, 583-84 (Tenn. 1976).

    FN12 This factor is derived from the doctrine of sudden emergency. See Johnson v. Copeland, [158 S.W.2d 986, 988 (Tenn. 1942)].

    FN13 This factor is derived from the rescue doctrine. See Ruth v. Ruth, [372 S.W.2d 285, 288-89 (Tenn. 1963)].

    FN14 This factor is derived from pre-McIntyre law as to minors. See Arnold v. Hayslett, 655 S.W.2d 941 (Tenn. 1983); Standridge v. Godsey, [226 S.W.2d 277 (Tenn. 1950)]. We have relied heavily on the Uniform Comparative Fault Act, 12 U.L.A. 42 (1977) in formulating these guidelines. The Committee Comment to § 2(b) of the Act provides:
    In comparing the fault of the several parties for the purpose of obtaining percentages there are a number of implications arising from the concept of fault. The conduct of the claimant or of any defendant may be more or less at fault, depending on all the circumstances including such matters as (1) whether the conduct was mere inadvertence or engaged in with an awareness of the danger involved; (2) the magnitude of the risk created by the conduct, including the number of persons endangered and the potential seriousness of the injury; (3) the significance of what the actor was trying to attain by his conduct; (4) the actor's superior or inferior capacities; and (5) the particular circumstances, such as the existence of an emergency requiring a hasty decision.

    In determining the relative fault of the parties, the fact-finder will also give consideration to the relative closeness of the causal relationship of the negligent conduct of the defendant and the harm to the plaintiff. Degrees of fault and proximity of causation are inextricably mixed, as a study of last clear chance indicates, and that common law doctrine has been absorbed in this Act.

    This approach was adopted by the Louisiana Supreme Court in Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967 (La. 1985)."
    Id . at 592.

Recent Cases: 

Gray v. Roten, No. W2010-00614-COA-R3-CV, 2011 WL 236115 (Tenn. Ct. App. Jan. 18, 2011) (explaining that although the last clear chance doctrine is dead in Tennessee, the trier of fact can consider who had the last reasonable chance to avoid an injury in assessing percentages of fault; discussing in dicta whether and how to consider mental incapacity in assessing percentages of fault between parties).

Hocker v. State , No. E2008-02638-COA-R3-CV, 2009 WL 3518164 (Tenn. Ct. App. Oct. 30, 2009) (analyzing factors set out in Eaton v. McLain, 891 S.W.2d 587 (Tenn. 1995) and reversing Claims Commissioner's judgment that plaintiff was at least fifty percent at fault in negligent road design case); Hall v. Town of Ashland City, No. M2008-01504-COA-R3-CV, 2009 WL 363166 (Tenn. Ct. App. Feb. 12, 2009) (affirming trial court's allocation of fault).

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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.

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