Caseflicks

Tennessee Supreme Court • 2000

Brown Ex Rel. Brown v. Wal-Mart Discount Cities

12 S.W.3d 785 | 2000 Tenn. LEXIS 53 | 2000 WL 99963

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Takeaway

In short, this case prevents a defendant from reducing its liability by blaming an unnamed “phantom” tortfeasor whom the plaintiff cannot identify, sue, and serve.

Background

Three-year-old Mitchell Brown broke his ankle after slipping on ice and water in the vestibule of a Wal-Mart store. His mother testified that the children were standing in the spill when Mitchell fell. The cup and ice apparently came from Wal-Mart’s self-service drink dispenser, and Wal-Mart employees acknowledged that customers sometimes carried drinks beyond the snack area. An employee responsible for vestibule safety testified that he had passed through the area about five minutes earlier without observing a spill.

No evidence identified the person who spilled the ice and water. At trial, however, the court instructed the jury that it could assign fault to the unknown person. The jury found total damages of $2,625, assigning 30 percent fault to Wal-Mart and 70 percent to the unidentified person, which initially produced a $787.50 judgment against Wal-Mart.

On the plaintiff’s motion for a new trial, the trial judge concluded that fault could not be assigned to someone whom the plaintiff could not identify, sue, or serve with process. The judge left the jury’s damages finding intact but held Wal-Mart liable for the full $2,625. The Court of Appeals affirmed, although it reasoned that Wal-Mart could use a phantom-tortfeasor defense only by proving the third party’s existence by clear and convincing evidence. The Tennessee Supreme Court granted review.

Issues

Issue #1

Whether a defendant may ask the jury to allocate fault to an unidentified, or “phantom,” nonparty tortfeasor.

Holding

No. A defendant may not attribute fault to a nonparty unless that person is identified sufficiently for the plaintiff to plead against and serve process on the person under Tennessee Code Annotated section 20-1-119.

Reasoning

Tennessee Rule of Civil Procedure 8.03 permits a defendant pleading comparative fault to state the “identity or description” of another alleged tortfeasor. At the pleading stage, a description can provide notice and begin discovery. But the rule does not authorize a jury ultimately to apportion fault to a person who remains unidentified after discovery.

The Court read Rule 8.03 alongside McIntyre v. Balentine and Tennessee Code Annotated section 20-1-119. McIntyre recognized that a defendant may allege a nonparty’s responsibility, but it also required the plaintiff to amend the complaint and serve process on that additional person before obtaining a judgment against that person. Section 20-1-119 supplies a 90-day mechanism for the plaintiff to add or separately sue a nonparty identified in a comparative-fault answer, even if the limitations period otherwise has run.

That statutory procedure presupposes that the alleged tortfeasor is an actual, identifiable individual or legal entity against whom the plaintiff can assert liability. As the Court had explained in Ridings, persons to whom fault may be attributed are limited to persons against whom liability for the plaintiff’s damages may be asserted. An unknown person who cannot be named, sued, or served does not meet that standard.

Proof that some unknown person existed and caused the spill is not enough. The Court rejected the Court of Appeals’ clear-and-convincing-evidence standard because even compelling proof of a phantom tortfeasor’s existence does not give the plaintiff the information necessary to sue that person or obtain a recovery.

The rule also reflects sound incentives and fairness. A defendant benefits when additional tortfeasors are identified because each additional tortfeasor may reduce the defendant’s percentage of fault. Allowing allocation to an unnamed person would weaken the defendant’s incentive to investigate and identify that person, while effectively requiring the plaintiff to defend the interests of someone who cannot be brought before the court.

Issue #2

Whether Snyder v. LTG Lufttechnische GmbH permitted Wal-Mart to allocate fault to the unknown person who spilled the ice and water.

Holding

No. Snyder allowed evidence of another actor’s conduct on causation, but it did not permit the jury to assign fault to a person against whom the plaintiff could not assert a cause of action.

Reasoning

In Snyder, a product manufacturer could introduce evidence concerning an immune employer’s conduct to support its defense that the product was not defective or unreasonably dangerous when it left the manufacturer’s control. The evidence was necessary to let the manufacturer present a credible causation defense.

But Snyder did not allow the jury to allocate a percentage of fault to the immune employer, because the plaintiff could not sue that employer. Likewise, Wal-Mart could not rely on Snyder to transform evidence that an unknown customer may have spilled the drink into a basis for assigning that customer 70 percent of the fault.

Issue #3

Whether the trial judge improperly displaced the jury’s role by making Wal-Mart responsible for 100 percent of the damages after the jury allocated fault to an unidentified person.

Holding

No. The judge properly applied the legal rule barring fault allocation to the unidentified nonparty while preserving the jury’s unchallenged finding of total damages.

Reasoning

The trial judge did not independently reweigh the evidence or reapportion fault in the role of a thirteenth juror. Instead, the judge concluded as a matter of law that the jury should never have been permitted to allocate fault to the unknown person.

Because the jury found Wal-Mart negligent and assessed total damages of $2,625, and because the only other allocation was legally invalid, Wal-Mart remained liable for the entire damages award. The Supreme Court therefore affirmed the judgment against Wal-Mart for $2,625.