Tennessee Supreme Court Rules Preemption Rule Not Compatible with Comparative Fault
The “preemption rule,” which has been adopted in a number of jurisdictions around the country, limits injured plaintiffs’ ability to prove wrongdoing against employers because, so long as an employer admits that it is vicariously liable for an employee’s negligence, the employer’s own potential acts of misconduct for negligent supervision, hiring, training, or entrustment are not disclosed to the trier-of-fact.
The Tennessee Supreme Court ruled in favor of the Plaintiff/Appellee, Melissa Binns, in the case of Melissa Binns v. Trader Joe’s East, Inc., M2022-01033-SC-R11-CV (Tenn. April 8, 2024), stating, “We hold that the preemption rule is incompatible with Tennessee’s system of comparative fault and decline to adopt it.” In a unanimous decision, the Court held that:
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- an employer can be held both directly liable for its own negligent conduct as well as vicariously liable for the negligent conduct of its employees (declining to adopt the preemption rule); and
- a plaintiff may pursue direct negligence claims against an employer concurrently with a premises liability theory.
The Binns ruling means that plaintiffs can simultaneously pursue claims against an employer for both its own direct negligence and its vicarious liability for an employee’s negligence. This ruling is a significant development in Tennessee, protecting rights of Plaintiffs to hold employers accountable for their actions or inactions that lead to a person’s injuries.
Representing Appellee Melissa Binns in this case were Donald Capparella, as lead appellate counsel, assisted by Tyler Chance Yarbro and Jacob A. Vanzin, from Dodson, Parker, Behm, and Capparella P.C., as well as John L. Griffith and Jonathan D. Lawrence of Griffith Law.
You can view the oral argument video here or read the Opinion here.
Fall at Convenience Center Not From “Open and Obvious” Cause; Plaintiff Entitled to Recover Damages
Getting a case reversed on appeal is difficult under any circumstances. Where negligence cases are concerned, it is particularly difficult. Negligence cases in Tennessee are governed by the principle of “comparative fault.” This means that, where premises liability cases are concerned, in order for a plaintiff to recover damages a court must find the plaintiff’s own negligence, if any, to be less than 50% of the “proximate cause” of the injuries. Fault is a “question of fact,” and reviewing courts give great deference to the “fact-finder,” which is often a jury and sometimes the trial judge. That deference to the fact-finder means that allocations of fault are rarely disturbed on appeal. The opinion from the Tennessee Court of Appeals in Osborne v. Metropolitan Gov’t of Nashville and Davidson Co. shows once more how difficult it is to change the outcome of a case once fault has been determined at the trial court level.
On February 28, 2015, Ronald Osborne was dropping off some garbage at the East Nashville Convenience Center, a facility operated by the local government. The trash bin was elevated approximately five feet off the ground. When Mr. Osborne headed to the back of his truck to unload the garbage, he stepped into a 15-inch drainage cut that had been placed at the back of the concrete barrier surrounding the platform. He fell and was hurt.
Mr. Osborne sued the city for negligence, alleging that the city had failed to maintain the property in a reasonably safe condition and had failed to comply with safety standards and local codes. The trial court concluded that the city was 80% at fault for Mr. Osborne’s injuries and that Mr. Osborne was 20% at fault for failing to notice the drainage cut. Metro appealed, arguing that the trial court erred in finding Mr. Osborne only 20% at fault.
Metro made a number of arguments that Mr. Osborne was at least 50% responsible for his fall. For instance, Metro argued that Mr. Osborne should have exercised heightened care for his own safety because of the nature of the facility, i.e,. a place where residents dispose of heavy appliances and other dangerous materials. The Court, however, noted that the drainage cut causing Mr. Osborne’s fall was not “open and obvious,” and no signs or other warnings were in place to warn patrons of the danger. Therefore, the Court found that “Metro was in the best position to remedy the danger,” and Mr. Osborne’s failure to notice it was not “the overriding cause of his injuries.” This, in addition to the fact that Mr. Osborne’s prior visits to the Center had led him to reasonably expect there were no holes, led the Court to find that the evidence did not preponderate against the trial court’s finding of 20% fault.
The judgment of the trial court was affirmed, and Metro was deemed liable for its part in Mr. Osborne’s injuries.
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.
More Traps for the Unwary in MedMal Cases
Timing is everything when it comes to adding alleged comparative tortfeasors. Unfortunately, this lesson is too often learned the hard way. Where medical malpractice is concerned, the lack of coordination between the drafters of the Health Care Liability Act with the statute allowing a comparative tortfeasor to be added within 90 days of their being identified in an answer adds yet another trap for plaintiffs to avoid. The Tennessee Court of Appeals’ opinion in Swearengen v. Delta Medical Center presents a cautionary tale. read more
Tennessee Rejects Preemption Rule When Vicarious Liability Admitted
Does comparative fault still apply for direct negligence claims when the employer has admitted vicarious liability? In its recent ruling on a Tenn. R. App. P. 10 Extraordinary Appeal, the Tennessee Court of Appeals has answered “yes.”
As a result of the recent ruling in Jones v. Windham, the Court of Appeals has rejected the so-called preemption rule, barring direct negligence claims against an employer when vicarious liability is admitted. Instead, the “non-preemption rule” applies as it comports with Tennessee’s system of comparative fault. read more