I have been reporting on some changes to tort reform in Tennessee that will positively affect Tennessee premise owners. Please see my prior post on this legislation for a more detailed discussion. In sum, House Bill 1099 overturns joint and several liability in several key situations. It recently passed the Tennessee House and is now on Governor Haslam’s desk for passage. Here is a link to the Bill Summary:
Unlike foreseeability in the context of duty, foreseeability in the context of proximate cause is a question of fact to be determined by the trier of fact. Id. (citing City of Elizabethton v. Sluder, 534 S.W.2d 115 (Tenn. 1976)). Additionally, in order to be entitled to summary judgment, the moving party must either (1) affirmatively negate an essential element of the nonmoving party’s claim; or (2) show that the nonmoving party cannot prove an essential element at trial. Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 8–9 (Tenn. 2008). Under Hannan, it is not sufficient that a party moving for summary judgment assert that the nonmoving party “lacks evidence to prove an essential element of its claim.” Id. at 8. In this case, whether the hole or dip or depression, as it has been alternately characterized by the parties, in fact caused Ms. Dickerson to fall; whether the harm and injury to Ms. Dickerson were reasonably foreseeable; and whether the County’s conduct was a substantial factor in causing Ms. Dickerson’s injury are properly within the province of the finder of fact.
Jamie Dickson, et al. v. Rutherford Co., Tenn., Case No. M2012-01916-COA-R3-CV (April 11, 2013).
The plain language of Section 57-10-102(2) requires a sale of an alcoholic beverage or beer to “a visibly intoxicated person.” The adverb “visibly” means “capable of being seen” or “exposed to view.” Taking “visibly” together with “intoxicated”, the only logical conclusion is that Section 102(2) requires proof that the alleged intoxication was perceptible or capable of being seen by the server or bartender at the time of sale. Continue reading
The plain language of Tennessee’s Dram Shop Act, T.C.A. § 57-10-102(1), requires Plaintiff to prove, beyond a reasonable doubt, that the under-age patron was “known to be” under 21 at the time that he or she was served alcohol. Constructive knowledge is not enough. Continue reading
Traditionally, the term “dram shop” referred to a shop where spirits were sold by the dram, a small unit of liquid. A dram is nearly equivalent to a teaspoon and in years past was used to refer to a small amount of Scottish whiskey. So, if you want to befuddle your local barkeep, try ordering a “wee dram of Laphroaig” in your best Scottish accent.
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: Continue reading
Here’s an ABA article reporting on challenge to tort caps in TN. This article provides citation to case in Middle District as well as similar challenges in foreign jurisdictions.