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§15.5 Allocation of Fault to One Protected by Statute of Repose

The Case : Dotson v. Blake, 29 S.W.3d 26 (Tenn. 2000).

The Basic Facts: Two defendants in a negligence action were dismissed under a statute of repose, Tenn. Code Ann. § 28-3-202. 29 S.W.3d at 26. The court considered whether fault could be allocated to the dismissed defendants.

The Bottom Line:

  • "Relying on this Court's decisions in Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79 (Tenn. 1996) and Snyder v. Ltg. Lufttechnische GmbH, 955 S.W.2d 252 (Tenn. 1997), the Court of Appeals held that fault could not be attributed to tortfeasors who cannot be held liable due to a statute of repose.FN2 Thus, the intermediate court affirmed the trial court's decision refusing to allow the jury to assess fault against the Architect and Contractor. We then granted review to decide whether a trier of fact should be permitted to consider the fault of tortfeasors who cannot be held liable because of a statute of repose.
    FN2 In Ridings and Snyder we held that fault could not be assessed against an immune employer in cases where an injured worker sought damages from a third party arising from a work-related injury."
    29 S.W.3d at 28.
  • "After the Court of Appeals released its decision, this Court decided Carroll v. Whitney, 29 S.W.3d 14 (Tenn. 2000). Carroll was a medical malpractice case in which a defendant physician sought to have the jury assess fault against physicians who were immune from suit because they were employees of the State. As in the present case, the Court of Appeals in Carroll relied on Ridings and Snyder and concluded that the jury should not have been permitted to apportion fault to the immune physicians. We reversed, and joined the majority of jurisdictions that permit the allocation of fault to all tortfeasors, even immune ones, who cause or contribute to the plaintiff's injuries. Specifically, we concluded that 'when a defendant raises the nonparty defense in a negligence action, a trier of fact may allocate fault to immune nonparties.' Id. at 17." Id.
  • "Clearly, the rule adopted in Carroll controls the present case where the question is whether fault may be assessed against tortfeasors who are effectively immune from liability because of a statute of repose.FN5 In order to achieve the fairest result possible by linking liability with fault, Martin Manor should have been permitted to argue that some or all of the fault should have been assessed against the Architect and Contractor. Otherwise, liability might be imposed disproportionately to fault, a result plainly inconsistent with our comparative fault scheme.
    FN5 The running of a statute of repose nullifies both the remedy and the right and has the effect of barring a plaintiff's claim as a matter of law. Wyatt v. A-Best Prod. Co., Inc., 924 S.W.2d 98, 102 (Tenn. Ct. App. 1995). In fact, a statute of repose can bar a claim even before it accrues. Id. For this reason, the Court of Appeals in the present case found that the protection afforded by a statute of repose is functionally indistinguishable from the protection afforded by an immunity defense like that asserted in Ridings and Snyder."
    Id . at 29.
  • "Accordingly, we hold that the trier of fact should be allowed to consider the fault of a tortfeasor who is protected from liability due to a statute of repose." Id.

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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.

To order a copy of the book, visit www.dayontortsbook.com. John also blogs regularly on key issues for tort lawyers. To subscribe to the Day on Torts blog, visit www.dayontorts.com.

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