§15.6 Allocation of Fault to One Whose Conduct Cannot Be the Legal Cause of an Injury

The Case: Biscan v. Brown , 160 S.W.3d 462 (Tenn. 2005).

The Basic Facts: Plaintiff was injured in a car wreck after a party at defendant Worley’s house. Plaintiff was a minor and was under the influence of alcohol. She sued the driver of the car (Brown) and Worley. Plaintiff’s sister Dana provided alcohol to Plaintiff.

The Bottom Line:

• “We next address the defendants’ argument that the trial court erred in directing a verdict for the plaintiffs as to the fault of Dana Biscan. Prior to trial, the plaintiffs filed for partial summary judgment seeking to preclude apportionment of fault to Dana for illegally purchasing and providing the beer to minors, arguing that pursuant to Tennessee Code Annotated sections 57-10-101 and -102, one who merely furnishes alcohol to another cannot be at fault. The trial court denied the plaintiffs’ motion, but at the close of proof, the trial court reconsidered the issue and granted a directed verdict. The jury was instructed that it could not apportion fault to Dana Biscan.” 160 S.W.3d at 470.
• “On appeal, the defendants argue that the statute applies only in commercial settings and thus cannot shield Dana Biscan, an individual, for illegally providing alcohol to minor Hughes Brown. They argue that Dana was negligent in providing alcohol to Brown and that she was negligent per se in providing alcohol to a minor. The plaintiffs argue that the defendants have waived appellate review of this issue. In the alternative, they argue that the statute shields Dana as a person who ‘furnished’ alcohol to another.” Id.
• “In sum, we hold that Dana’s conduct in furnishing beer to the defendant Brown did not proximately cause Jennifer Biscan’s injuries under the explicit terms of section 101. Dana did not sell alcohol to Brown within the meaning of section 102, so the exceptions contained in that part do not apply. Because the statute mandates the conclusion that Dana was not a proximate cause of Jennifer’s injuries, the trial court was correct in directing a verdict. Since Dana cannot, as a matter of law, be at fault for Jennifer’s injuries, it would have been error to allow the jury to apportion fault to her.” Id. at 474.
• “We note that this result would be different if Dana were protected by a statute making her immune from suit. Under our system of comparative fault, a jury may apportion fault to an immune party notwithstanding the party’s immunity from liability. Carroll v. Whitney, 29 S.W.3d 14, 19 (Tenn. 2000). We have also held that a jury may apportion fault to persons who are “effectively immune,” such as those protected by a statute of repose. Dotson v. Blake, 29 S.W.3d 26, 29 (Tenn. 2000). However, in enacting Tennessee Code Annotated section 101, the legislature did not make persons or entities who furnish alcohol immune from suit; rather, the legislature determined that furnishing alcohol is not a proximate cause of injuries inflicted by an intoxicated person. Thus, the effect of the provision is not merely to restrict the remedy for a cause of action, but to remove that cause of action entirely, making a person or entity who furnishes alcohol immune from fault as well as immune from liability. Although we held in Carroll that the attribution of fault was not limited ‘to persons against whom the plaintiff has a cause of action in tort,’ 29 S.W.3d at 18, that holding referred to a plaintiff’s ability to prosecute a suit, not to the very existence of a cause of action based on the underlying conduct.” Id. at 474.