Tennessee's Comparative Fault System By J Steven Collins steve@bcnattorneys.us
In 1992, the Tennessee Supreme Court announced the adoption of a system of modified comparative fault in its opinion in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992).
Under the doctrine of modified comparative fault, a jury determines the percentage of fault to be attributed for the accident to both the plaintiff and defendant. If the plaintiff’s fault reaches 50%, he or she receives no recovery. Otherwise, the jury determines the total amount of the plaintiff’s damages and then reduces the award by the percentage of the plaintiff’s fault.
Co-defendants are generally no longer responsible for the entire compensatory damage award to the plaintiff, under a concept known as joint and several liability. Under the modified comparative fault system, each defendant pays only that percentage of the damages equivalent to the percentage of fault assigned to the defendant by the jury.
Defendants are also allowed to plead the comparative fault of other third parties in order to diminish their total liability to the plaintiff. Under the law, however, the defendant must plead the comparative fault of the third party with enough specificity that the plaintiff can identify the third party alleged to have been at fault and to bring them into the lawsuit. If a defendant fails to affirmatively plead the comparative fault of a third party, that defense is deemed waived.
In Tennessee, the statute of limitations for personal injury is one year. As an adjunct to the comparative fault system, a plaintiff is given an additional 90 days from the filing of the defendant’s Answer claiming a third party was at fault to add the third party to the lawsuit. Under Tenn. Code Ann. § 20-1-119, a plaintiff may bring new people into the lawsuit who have been named by other defendants as having been at fault or partially at fault in the accident.
Prior to the adoption of the modified comparative fault system, a plaintiff’s lawsuit could be dismissed if he or she was guilty of some contributory fault. That defense is no longer available. Proof of comparative fault on the part of the plaintiff will always work to lower the plaintiff’s recoverable damages. Proof that the plaintiff’s fault was equal to or greater than that of the defendant, will result in a successful defense of the lawsuit and the dismissal of it.