Tennessee’s Summary Judgment Standard Anything But Well-Settled
The history of the last few years in the Tennessee jurisprudence has seen both judicial clarifications of the summary judgment standard and legislative revision. And now, the Tennessee Supreme Court has accepted a new Rule 11 appeal that could upset the apple cart again. Here’s what you need to know.
Background—The Hannan Summary Judgment Standard
In 2008, the Tennessee Supreme Court released a pair of cases that “clarified” Tennessee’s summary judgment standard. Hannan v. Alltel Publishing Co., 270 S.W. 3d 1 (Tenn. 2008) and Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76 (Tenn. 2008) examined Tennessee jurisprudence and determined that Tennessee did not follow the Federal “Put Up or Shut Up” standard where summary judgment motions were concerned. Rather, the Hannan standard provided that:
[i]f the moving party makes a properly supported motion, the burden of production then shifts to the nonmoving party to show that a genuine issue of material fact exists. To meet its burden of production and shift the burden to the nonmoving party, the moving party must either affirmatively negate an essential element of the nonmoving party’s claim or establish an affirmative defense. If the moving party does not satisfy its initial burden of production, the court should dismiss the motion for summary judgment. Summary judgment should be granted only when, with the facts viewed in favor of the nonmoving party, it is clear that no genuine issue of material fact exists.
Hannan v. Alltel Publ’g Co., 270 S.W.3d at 5 (internal citations and quotations omitted).
Martin provided elaboration as to the responsibility of the nonmoving party.
If the moving party makes a properly supported motion, then the nonmoving party is required to produce evidence of specific facts establishing that genuine issues of material fact exist. The nonmoving party may satisfy its burden of production by: (1) pointing to evidence establishing material factual disputes that were over-looked or ignored by the moving party; (2) rehabilitating the evidence attacked by the moving party; (3) producing additional evidence establishing the existence of a genuine issue for trial; or (4) submitting an affidavit explaining the necessity for further discovery pursuant to Tenn. R. Civ. P., Rule 56.06. The nonmoving party’s evidence must be accepted as true, and any doubts concerning the existence of a genuine issue of material fact shall be resolved in favor of the nonmoving party.
Martin v. Norfolk S. Ry. Co., 271 S.W.3d at 84 (internal citations and quotations omitted).
Legislative Action in Response to Hannan
In direct response to the opinion in Hannan, the Tennessee General Assembly passed legislation which purported to “overrule” the Hannan standard. 2011 Tenn. Pub. Ch. 498 (“WHEREAS, the purpose of this legislation is to overrule the summary judgment standard for parties who do not bear the burden of proof at trial set forth in Hannan v. Alltel Publishing Co., its progeny, and the cases relied on in Hannan[.]”) The bill, codified at Tenn. Code Ann. § 20-16-101, attempted to set a new standard for the determination of summary judgment.
In motions for summary judgment in any civil action in Tennessee, the moving party who does not bear the burden of proof at trial shall prevail on its motion for summary judgment if it:
(1) Submits affirmative evidence that negates an essential element of the nonmoving party’s claim; or
(2) Demonstrates to the court that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim.
Tenn. Code Ann. § 20-16-101.
The new statute was made effective for cases commenced after July 1, 2011. It does not, however, provide any guidance regarding a standard for moving parties who bear the burden of proof at trial.
No Comment from the Supreme Court
The Tennessee Supreme Court has not yet addressed the impact of Tenn. Code Ann. § 20-16-101. As of the print deadline for this issue, only one Tennessee Supreme Court opinion has even mentioned the existence of the statute. In Sykes v. Chattanooga Hous. Auth., 343 S.W.3d 18 (Tenn. 2011), the Supreme Court dealt with a summary judgment motion in a case commenced prior to the enactment of the new statute. The Court simply remarked in a footnote that a new law existed; the Court made no comment upon the law. Id. at 25.
The time may have come for the Tennessee Supreme Court to re-examine the summary judgment standard again. This Court has recently accepted an application for permission in Rye v. Women’s Care Ctr. of Memphis, MPLLC, No. W2013-00804-SC-R11-CV, 2014 WL 903142 (Tenn. Ct. App. Mar. 10, 2014), app. perm. appeal granted (Tenn. Sept. 19, 2014). In its order granting permission to appeal, the Court invited the parties to brief and argue “the question of whether the Court should re-consider the summary judgment standard previously articulated by the Court in Hannan v. Alltel Publishing Co…” Order (Tenn. S. Ct. Sept. 19, 2014).
Rye—New Tort? New Summary Judgment Standard?
Rye involved a claim for alleged negligent care during a pregnancy. The doctor failed to give the mother an injection during her pregnancy to address a possible complication due to her blood type. Without the injection, it was possible that the unborn child could be harmed and that, in the future, the mother could experience complications with other pregnancies. In this case, however, the child was born without complications. The parents filed suit, alleging physical injury to the mother, emotional distress, and asserting an additional right to recover for the disruption of their family planning.
The defendants conceded it was a deviation from the standard of care for the doctor not to give the injection. They moved for summary judgment, however, arguing there were no compensable damages or injuries. The trial court granted summary judgment for the defense on all future injuries or expenses for the mother, determining they were all speculative. The court denied the motion concerning the emotional distress or whether the mother suffered an actual injury due to the diseased blood.
The defense filed a subsequent motion for summary judgment arguing that no proof had developed in support of the causes of action. The court granted summary judgment on the father’s stand-alone emotional distress claim because it was not supported by expert proof. The court denied summary judgment on the physical injury of the mother and on the NIED claim of the mother, since the NIED claim could not be adjudicated in the absence of a determination of whether she had suffered physical injury. Both sides sought an interlocutory appeal, which was granted.
The Court of Appeals affirmed the trial court’s determinations with respect to the family planning claim. The Court declined to find that an independent tort for interruption of family planning had been recognized in Tennessee. The Court also affirmed the trial court with respect to one of the mother’s claims of injury.
The Court reversed the trial court’s grant of summary judgment on the mother’s claim for future medical expenses associated with future pregnancy and the father’s claim for negligent infliction of emotional distress. With respect to the future medical expenses, the Court determined that evidence could be presented at trial from which a fact-finder could determine damages. Similarly, the Court of Appeals noted that, while the father had yet to support his stand-alone NIED claim with expert evidence, he did not have to do so at the summary judgment stage and was entitled to do so at trial. Thus, the grants of summary judgment were affirmed in part, reversed in part, and remanded.
Rye thus presents some meaty issues for the Tennessee Supreme Court. As your editors pointed out when Rye was released, the determination of whether Tennessee law supports a claim for disruption of family planning is one that deserves Supreme Court attention.
Perhaps even more significant than a potential new tort, Rye also concerned motions for summary judgment made by the party who does not bear the burden of proof at trial. As the Court of Appeals pointed out, under Hannan, the plaintiffs in Rye were under no burden to present all of their evidence at the summary judgment stage. Since the defendants could not affirmatively negate essential elements of the plaintiffs’ claims, the plaintiffs were entitled to a trial. This is a determination that almost certainly would have turned out differently under the federal “put up or shut up” standard.
Thus, it seems that the Tennessee Supreme Court sees an opportunity with the Rye case to address lingering questions about the Hannan standard in the wake of the still-untested 2011 legislation.