Defendant Denied Chance to ID Other Parties Potentially At Fault; Affirmative Defense Reinstated

Naming “John Does” as defendants or comparative torfeasors is a necessary and customary practice in hit-and-run cases. This allows the parties to conduct discovery to identify information that can lead to a determination of who should be held at fault and whether a defendant can be sufficiently identified to be served with process.  The case of Santore v. Stevenson dealt with the question of how much leeway a court must give to parties seeking to identify a John Doe. (Spoiler alert: the answer is “a reasonable opportunity”).

In November 2013, Steven Santore sustained injuries after being struck by a vehicle in a gas station parking lot.  Eight months later, Mr. Santore filed suit against Cordova Concrete, Inc. (“CCI”), and one of its drivers, Karloss Stevenson, alleging that Mr. Stevenson had been responsible for the accident while driving a CCI truck.

At some point after CCI filed its answer, CCI learned that an unidentified person had called 911 from the scene of the accident.  After multiple unsuccessful attempts to subpoena the 911 recording, CCI filed a public records request.  Finally, on June 1, 2016, CCI obtained a copy of the records, and based on that information, began working to identify the caller.  After making repeated phone calls to the number from which the call had been placed, CCI finally got in touch with the caller, an over-the-road truck driver from out of state, and arranged to take his deposition on August 29, 2016.  During the deposition, the caller identified the vehicle that had struck Mr. Santore as an Averitt tractor trailer truck, but was unable to identify the driver.

On September 20, 2016, over two years after the complaint had been filed but less than three months after CCI had obtained the 911 records, CCI moved to amend its answer to assert the affirmative defense of comparative fault against the unidentified driver (“John Doe”) and trucking company Averitt Express.  Shortly thereafter, plaintiffs amended their complaint to add the parties as additional defendants.

In October, Averitt moved to strike CCI’s affirmative defense implicating John Doe and Averitt.  The trial court granted the motion with regard to John Doe, citing CCI’s failure to identify him with the requisite degree of specificity.  The trial court later granted the motion as to Averitt, finding that CCI had failed to state a legal cause of action upon which relief could be granted.

After its motion for an interlocutory appeal was denied, CCI filed a Tenn. R. Civ. P. 60.01 motion seeking to modify the trial court’s order to strike the affirmative defenses to obtain the entry of a final judgment as to all claims against Averitt and John Doe.  The trial court granted the motion, and CCI appealed.

The question on appeal was whether the trial court erred in striking John Doe from CCI’s comparative fault defense.  The Court of Appeals began by acknowledging that a defendant is only permitted to attribute fault to a non-party if the defendant can identify the non-party with sufficient specificity to allow the non-party to be served with process.  While the Court agreed that CCI’s current description of John Doe did not meet the requisite level of specificity, it concluded that the trial court’s order to strike had been premature.  Here, the Court emphasized that although the case had been pending for two years, the delay was not caused by any failure on CCI’s part:  CCI had only learned of the 911 call several months before, and since then had taken prompt action to discover the driver’s identity.

Importantly, when Averitt filed its motion to strike, CCI had already served Averitt with multiple interrogatories and other discovery requests in an effort to identify the mystery driver.  However, the trial court granted the motion before Averitt ever issued a single response.  As a result, the Court found that CCI was effectively “deprived” of a reasonable opportunity to conduct pre-trial discovery, and therefore, the trial court’s decision to grant the motion to strike constituted an abuse of discretion.