Tort Reform – Joint and Several Liability

The Tennessee Legislature has proposed major reforms that will abrogate joint and several liability in several key areas. Senate Bill 56 breezed through the Senate (25 ayes to 7 nays) on February 11, 2013. House Bill 1099 is identical to Senate Bill 56 and is currently with the Calendar and Rules Committee awaiting a vote in the House. According to sources, House Bill 1099 is expected to be up for a vote within a week. Here are the links to SB 56 and HB 1099:

Why is this important? If this House Bill 1099 passes, it will abrogate the joint and several liability “exceptions” established by the Tennessee Supreme Court in Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73 (Tenn. 2001), ADR Trust Corp. v. Block, 924 S.W.2d 354 (Tenn. 1996) and Moore v. Houston County Bd. of Educ., 358 S.W.3d 612 (Tenn. App. 2011). Consider the plain language of Section 1 of SB 56 and HB 1099, which states:

(a) If multiple defendants are found liable in a civil action governed by comparative fault, a defendant shall only be severally liable for the percentage of damages for which fault is attributed to such defendant by the trier of fact, and no defendant shall be held jointly liable for any damages.

During debates in the Senate Judiciary Committee and during the Senate session, Senator Kelsey made clear that the intent of the Bill was to legislatively overturn the exceptions carved out of the comparative fault doctrine recognized in the case cited above.

How will this affect the current status of the law? This new legislation will completely abrogate the decisions in Turner v. Jordan, Limbaugh v. Coffee Med. Ctr., and progeny, as well as the decisions in ADR Trust Corp. v. Block, 924 S.W.2d 354 (Tenn. 1996) and Moore v. Houston County Bd. of Educ., 358 S.W.3d 612 (Tenn. App. 2011). Tennessee operates under a comparative fault system. In McIntyre v. Balentine, the Tennessee Supreme Court adopted a modified form of comparative fault under which a plaintiff whose negligence is less than that of a defendant may recover damages in an amount reduced in proportion to the percentage of the plaintiff’s own negligence. Citing notions of fairness and justice, the McIntyre Court stressed that “a particular defendant [is] liable only for the percentage of a plaintiff’s damages occasioned by that defendant’s negligence.” Following McIntyre, the courts started carving out exceptions to the comparative fault doctrine. In Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 87 (Tenn. 2001), for example, the Court held that where the intentional actor and the negligent actor are both named defendants and each are found to be responsible for the plaintiff’s injuries, then each defendant will be “jointly and severally responsible” for the plaintiff’s total damages. This means that the negligent actor can be on the hook for all of plaintiff’s damages, not merely a percentage of the damages based on the jury’s allocation of fault. This case built on the Court’s decision in Turner v. Jordan, 957 S.W.2d 815, 822 (Tenn. 1997), in which the Court held that the conduct of a negligent defendant cannot not be compared with the intentional conduct of another in determining comparative fault where the intentional conduct is the foreseeable risk created by the negligent tortfeasor.

Practically speaking, how does this affect the status quo? Consider a typical patron on patron bar fight. Suppose one of the patrons is visibly intoxicated and decides to hit another patron over the head with a beer bottle. Currently, the plaintiff can sue the intentional tortfeaser, as well as the bar under a theory of negligence for failing to take adequate measures to protect the patron for the assault. Under Turner v. Jordan and Limbaugh v. Coffee Med. Ctr., the bar can be jointly and several liable for the damages caused by the intentional assault, and it cannot compare its fault with that of the intentional actor. Assuming HB 1099 makes it through the House and clears the Governor’s desk, premise owners will only be liable for their percentage of fault, and should be able to reduce their percentage of fault by demonstrating the intentional actor was the true proximate cause of the damages suffered by the plaintiff.

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