The following section from Day on Torts Leading Cases in Tennessee Tort Law​​​ is out of date and should not be used. It remains a part of this site for historical purposes only. An updated version of the book is available by subscription at (Additional information below.)

§15.3 Allocation of Fault to Defendant Dismissed Before Trial

The Case: Lindgren v. City of Johnson City , 88 S.W.3d 581 (Tenn. Ct. App. 2002).

The Basic Facts: Trial court failed to consider fault of defendant dismissed without prejudice prior to trial in apportioning fault.

The Bottom Line:

  • "A trial court has considerable latitude in allocating fault between or among culpable parties, and the appellate court reviews same with a presumption of correctness. Coln v. City of Savannah, 966 S.W.2d 34, 44 (Tenn.1998). In this case, the Trial Judge allocated no fault to the plaintiff, and the evidence does not preponderate against that finding. However, the Trial Judge allocated 100% fault to defendant City and pretermitted the issue of whether any fault should be apportioned to Frizzell. The action as to Frizzell had been dismissed without prejudice, apparently upon some settlement being made between the plaintiff and Frizzell." 88 S.W.3d at 585.

  • "The Trial Court has the responsibility to apportion fault to anyone having a degree of culpability. See Carroll v. Whitney, 29 S.W.3d 14, 22 (Tenn.2000); Dotson v. Blake, 29 S.W.3d 26 (Tenn.2000); Bervoets v. Harde Ralls Pontiac-Olds, Inc., 891 S.W.2d 905 (Tenn.1994). The trier of fact in a comparative fault case, such as this, should first determine the total amount of the plaintiff's damages without regard to fault, and then apportion damages on the percentage of fault attributable to each tortfeasor. Grandstaff v. Hawks, 36 S.W.3d 482 (Tenn.Ct.App.2000). In this case, the Trial Court did not follow this procedure, although defendant Johnson City had raised the comparative fault of Frizzell as an affirmative defense. In a post-trial Motion, the plaintiff's attorney sought to correct this error. However, at defendant's urging, the Court ruled that it had lost jurisdiction of the case to the appellate process. We vacate the award of damages and remand with directions to the Trial Court on this record, without hearing further proof, to determine the total amount of damages to which plaintiff would be entitled, and then determine the percentage of fault, if any, attributable to Frizzell, and then enter Judgment against defendant, based upon the percentage of fault attributed to the City in accordance within the constraints of the Governmental Tort Liability Act, Tenn. Code Ann. § 29-20-101 et seq. Defendant also raised as an issue the admission of Frank Knisley's testimony, which we find to be without merit." Id.

Recent Cases: Russell v. Anderson County , No. E2008-00925-COA-R3-CV, 2009 WL 2877415 (Tenn. Ct. App. Sept. 8, 2009) (holding trial court committed error in failing to consider fault of defendant dismissed after pre-trial settlement).

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.

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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.

The book is now available electronically by subscription at The new format allows us to keep the book current as new opinions are released. BirdDog Law also has John's Tennessee Law of Civil Trial and Compendium of Tennessee Tort Reform Statutes available by subscription, as well as multiple free resources to help Tennessee lawyers serve their clients

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