§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).