IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE FILED
January 31, 2000
Cecil Crowson, Jr.
Appellate Court Clerk
FOR PUBLICATION
Filed: January 31, 2000
JOEY BROWN, as next friend and )
natural guardian of )
MITCHELL W. BROW N, )
) LAWRENCE COUNTY
Appellee, )
)
Vs. ) HON. JIM T. HAMILTON,
) JUDGE
WAL-MART DISCOUNT CITIES, )
)
Appellant. ) No. M1997-00138-SC-R11-CV
For the Appellant: For the Appellee:
Tracy Shaw John A. Day
Alice Margaret Essary Donald Capparella
HOWELL & FISHER BRANHAM & DAY
Nashville, Tennessee Nashville, Tennessee
W. Charles Doerflinger
Lawrenceburg, Tennessee
O P I N IO N
COURT OF APPEALS’ JUDGMENT
AFFIRMED, AS MODIFIED. ANDERSON, C.J.
We granted the application for permission to appeal in this slip and fall case to
decide the issue of whether the defendant can attribute fault to an unidentified, or
“phantom,” tortfeasor.
In this case, the plaintiff was injured when he slipped on ice and water that had
been spilled on the floor in defendant’s store. The defendant argued that the jury
should be allowed to consider the fault of the unidentified tortfeasor responsible for
spilling the ice and water.
The trial judge instructed the jury that it could consider the fault of the
unidentified tortfeasor, and the jury found that the plaintiff had sustained damages in
the total amount of $2,625.00. The jury assigned 30% of fault to the defendant and
70% of fault to the unidentified tortfeasor. Upon the plaintiff’s motion for a new trial,
however, the trial judge issued an order assigning 100% of plaintiff’s damages to
defendant, finding that it had erred in allowing the jury to assign fault to the unidentified
tortfeasor. Accordingly, the trial judge overruled the motion for new trial and held the
defendant liable for the entire judgment.
The Court of Appeals affirmed the trial court’s judgment, emphasizing the jury’s
finding that the defendant was negligent and holding that the defendant should not be
able to attribute any of the fault to an unidentified nonparty unless the defendant can
prove the “existence” of the nonparty “whose fault contributed to the plaintiff’s injuries
by clear and convincing evidence.” Because the defendant failed to do so, the Court of
Appeals held that “the trial judge correctly attributed all the fault to the original
defendant.”
After our consideration of the record, the parties’ arguments, and the applicable
authority, we conclude that the defendant may not attribute fault to a nonparty who is
not identified sufficiently to allow the plaintiff to plead and serve process on such person
pursuant to Tenn. Code Ann. § 20-1-119 (1994 & Supp. 1999), even if the defendant
establishes the nonparty’s existence by clear and convincing evidence.
BACKGROUND
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Three-year-old Mitchell Brown broke his ankle when he slipped and fell on ice
and water in the vestibule of defendant W al-Mart’s store. At trial, Mitchell Brown’s
mother, Lisa Brown, testified that she entered the vestibule with her two young children
and walked toward the pay telephone to make a call to her husband. As she
proceeded to make the call, Ms. Brown saw that her children were standing in the
middle of ice and water spilled on the floor. She testified that as soon as she stretched
out her hand and told her children to come toward her, her son Mitchell fell. Ms. Brown
also testified that when she first entered the store, she noticed a Wal-Mart employee
standing at a door to the vestibule.
There was no evidence presented concerning who spilled the ice and water.
According to the testimony of Mark Morgan, the assistant manager on duty at the time
of the accident, both a cup and the ice on the floor were from Wal-Mart’s self-serve
fountain drink dispenser.
Morgan testified that Wal-Mart’s policy was to restrict all drinks to the snack area
of the store. Morgan conceded, however, that he was aware of customers carrying
drinks throughout the store and that a customer could enter the store, purchase a drink,
and leave through any of the store’s exits without violating the policy to restrict drinks to
the snack area. Moreover, Kevin Brewer, a Wal-Mart employee working on the day of
the accident, testified that he could get fired if he were to stop anyone from leaving the
snack area with a drink.
Brewer also testified that he was responsible for maintaining the safety of the
vestibule. He stated that he had walked through the vestibule “probably within the last
five minutes” before the accident occurred and that he had not seen any spills on the
floor. Brewer claimed that when he cleaned up the spill after the accident, the ice
cubes “were still in ice form . . . still real hardened,” so he believed that the spill had not
been on the floor for a very long period of time.
At the close of the proof, the trial court instructed the jury that they
must determine the fault, if any, of the parties. . . . What I’m
talking about when I say “parties” in this case is the unknown
-- what the law calls an unknown tortfeasor. [Wal-Mart’s
counsel] argued to you about this person or persons who left
this cup of ice on the floor -- that unknown person.
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The jury found that plaintiff suffered damages in amount of $2,625.00, and assigned
30% of the fault to Wal-Mart and 70% of fault to the “unknown person.” Consequently,
the court ordered that Wal-Mart pay the plaintiff $787.50.
The plaintiff filed a motion for a new trial, arguing that the trial court erred by
allowing the jury to consider the fault of the unidentified nonparty. The trial court
agreed with the plaintiff, stating that “[t]here is no way the Plaintiff in the instant case
could sue and obtain judgment against whomever left the cup of ice on the floor at Wal-
Mart, because no one knows who to sue.” Because the trial court was satisfied with the
jury’s assessment of plaintiff’s total damages, it overruled the motion for a new trial but
ordered that the judgment of $2,625.00 would “remain intact,” which effectively
assigned 100% of the fault to Wal-Mart.
On appeal, the Court of Appeals affirmed the trial court, stressing that the jury
must have found that Wal-Mart had constructive notice of the dangerous condition.
The Court of Appeals further reasoned, however, that the “phantom tortfeasor” defense
is consistent with this Court’s cases since our adoption of a modified version of
comparative fault. Accordingly, the Court of Appeals held that “[s]ince the phantom
tortfeasor defense can be easily abused, we think the original defendant should be
required to prove the existence of a third party whose fault contributed to the plaintiff’s
injuries by clear and convincing evidence.” Because the court found that the defendant
had failed to do so, it concluded that “the trial judge correctly attributed all the fault to
the original defendant.”
We granted defendant Wal-Mart’s application for permission to appeal.
DISCUSSION
The issue presented is a question of law, and our review is de novo with no
presumption of correctness. Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 80
(Tenn. 1996).
We begin our analysis with the Tennessee Rules of Civil Procedure, which
govern complaints and answers. Wal-Mart argues that under the Tennessee Rules of
Civil Procedure, a defendant need only describe another potential tortfeasor in an
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answer in order for the jury to attribute fault to such a tortfeasor. Tenn. R. Civ. P. 8.03.
This rule states in pertinent part:
In pleading to a preceding pleading, a party shall set forth
affirmatively facts in short and plain terms relied upon to
constitute . . . comparative fault (including the identity or
description of any other alleged tortfeasors).
Id. (emphasis added). According to Wal-Mart, the language “identity or description”
could arguably encompass an unidentified comparative tortfeasor.
Rule 8.03 is a rule of pleading which allows a defendant to allege that a nonparty
contributed to the plaintiff’s damages, ultimately allowing the plaintiff to plead and
serve, and the trier of fact to assign fault to, the comparative tortfeasor alleged in
defendant’s answer. Rule 8.03 contemplates that at the pleading stage, either the
identity or a description of another potential tortfeasor is sufficient to initiate discovery.
Cf. George v. Alexander, 931 S.W.2d 517, 521-22 (Tenn. 1996) (reasoning that a
defendant intending to argue that a nonparty was the cause in fact of plaintiff’s injury
must identify or describe the nonparty in strict adherence to Tenn. R. Civ. P. 8.03
because a plaintiff should be afforded timely notice of the other potential tortfeasor).
Tennessee’s case law and statutory law both indicate, however, that when pre-trial
discovery fails to identify the “described” comparative tortfeasor alleged in defendant’s
answer, the defendant should not be allowed to argue, and the trier of fact should not
be permitted to make a determination, that a percentage of fault should be attributed to
the unidentified nonparty.
This Court expressed its concern regarding future cases involving nonparties
when we adopted a modified version of comparative fault in McIntyre v. Balentine, 833
S.W.2d 52 (Tenn. 1992). In adopting comparative fault, we attempted to reconcile the
plaintiff’s interest in being made whole with the defendant’s interest in paying only that
percentage of damages for which that particular defendant is responsible. We
anticipated, however, that situations would arise in which one of these interests must
yield to the other and that many issues regarding “nonparty” tortfeasors must “await an
appropriate controversy.” Id. at 60 (opinion on petition to rehear). In this regard, we
stated that:
fairness and efficiency require that defendants called upon
to answer allegations in negligence be permitted to allege,
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as an affirmative defense, that a nonparty caused or
contributed to the injury or damage for which recovery is
sought. . . . However, in order for a plaintiff to recover a
judgment against such additional person, the plaintiff must
have made a timely amendment to his complaint and
caused process to be served on such additional person.
Thereafter, the additional party will be required to answer the
amended complaint.
Id. at 58 (emphasis added).
The legislature responded to our decision in McIntyre by enacting Tenn. Code
Ann. § 20-1-119 to enable a plaintiff to plead and serve nonparties alleged in a
defendant’s answer as potential tortfeasors. This section applies when a defendant
raises comparative fault as an affirmative defense and the statute of limitations would
otherwise bar the plaintiff’s cause of action against the comparative tortfeasor alleged in
defendant’s answer. Within ninety days of the filing of the defendant’s answer alleging
that a person not a party to the suit caused or contributed to the injury or damages for
which the plaintiff seeks recovery, the plaintiff may either “[a]mend the complaint to add
such person as a defendant” or “[i]nstitute a separate action against that person.”
Tenn. Code Ann. § 20-1-119(a)(1), (2). “Person” is defined as “any individual or legal
entity.” Tenn. Code Ann. § 20-1-119(f).
Accordingly, in providing that a plaintiff should either amend the complaint or
institute a separate suit against the “person” alleged as a comparative tortfeasor in
defendant’s answer, Tenn. Code Ann. § 20-1-119 contemplates that the plaintiff will
actually know the identity of the alleged individual or entity. See Ridings, 914 S.W.2d at
82 (stating that this section “contemplates that those persons to whom fault may be
attributed are limited to those against whom liability for the plaintiff’s damages may be
asserted.”). Contrary to the conclusion of the Court of Appeals, clear and convincing
evidence of the existence of a phantom tortfeasor is not sufficient identification for
purposes of pleading and serving process. In our view, unless the nonparty is identified
sufficiently to allow the plaintiff to plead and serve process on such person pursuant to
Tenn. Code Ann. § 20-1-119, the trial court should not permit the attribution of fault to
the nonparty.
Despite Tennessee’s rules of pleading and statutory developments since
McIntyre, Wal-Mart argues that the case of Snyder v. LTG Lufftechnische GmbH, 955
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S.W.2d 252 (Tenn. 1997), permits the attribution of fault against a “phantom” tortfeasor.
We disagree.
Snyder was a products liability case involving an employee who was injured by
an allegedly defective product in the course and scope of his employment. In that case,
we emphasized that a defendant product manufacturer should not “effectively be
precluded from presenting a defense.” Id. at 256. We reasoned:
A defense that the product was not defective or
unreasonably dangerous when it left the defendants’ control
would not be credible unless the defendants were permitted
to introduce evidence as to what actually happened to the
product leading up to the incident that injured the plaintiff.
Id. Accordingly, we held that the jury could consider the immune employer’s conduct in
determining the cause in fact of plaintiff’s injuries. The jury in Snyder, however, was
precluded from assigning fault to a party against whom the plaintiff could not assert a
cause of action. We therefore reject Wal-Mart’s argument that Snyder demands a
different outcome in this case.
From our review of other jurisdictions, it appears that the resolution of this issue
of an unidentified, or “phantom,” tortfeasor depends primarily upon how each
jurisdiction interprets its own comparative fault statute and rules of pleading, and that
there is not a clear majority rule. However, we find persuasive the policy reasons relied
upon by the Superior Court of New Jersey, which is also a modified comparative fault
state, in the case of Bencivenga v. J.J.A.M.M., Inc., 609 A.2d 1299 (N.J. Super. Ct.
App. Div. 1992). In holding that an unidentified tortfeasor may not be considered when
apportioning fault, the court reasoned:
The amount of plaintiff’s judgment and amount of
defendant’s liability will vary depending upon whether the
absent-unnamed person’s negligence is considered by the
fact finder. Defendant, however, has a greater incentive to
join and name additional potential tortfeasors or to see that
they are identified. . . . Thus, defendant has significant
incentive in naming and joining multiple tortfeasors so as to
create the potential for diminishing defendant’s percentage
of liability. . . . Given that incentive, it is appropriate to place
upon defendant the burden of finding and naming any
additional person since it is to defendant’s advantage to
spread the risk or defeat the claim.
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Id. at 1304. As the New Jersey court recognized, a defendant has a substantial interest
in finding and naming all potential tortfeasors in order to diminish its percentage of fault.
In our view, to allow a defendant to attribute fault to an unidentified nonparty would not
only diminish a defendant’s incentive to identify additional tortfeasors, cf. George, 931
S.W.2d at 521-22, but also would effectively impose a burden on the plaintiff to
“defend” the unidentified nonparty.
Finally, in light of our conclusion that the trier of fact should not have been
permitted to assign fault to an unidentified nonparty, we agree with the Court of Appeals
that the trial judge did not err in assigning 100% of the fault to Wal-Mart upon the
plaintiff’s motion for a new trial. The trial judge did not usurp the role of the jury as we
cautioned against in Turner v. Jordan, 957 S.W.2d 815, 824 (Tenn. 1997) (where trial
court “correctly determined that it lacked the authority to reapportion . . . fault in its role
as thirteenth juror”). Rather, as the Court of Appeals reasoned, “the [trial judge] was
assigning 100 percent of the damages assessed by the jury to Defendant in light of the
legal conclusion that Defendant’s fault could not be shared with an unknown tortfeasor.”
Accordingly, we affirm the Court of Appeals decision that Wal-Mart is liable for the
entire judgment of $2,625.00.
CONCLUSION
After our review of the record, the parties’ arguments, and applicable authority,
we conclude that a defendant may not attribute fault to a nonparty who is not identified
sufficiently to allow the plaintiff to plead and serve process on such person pursuant to
Tenn. Code Ann. § 20-1-119, even if the defendant establishes the nonparty’s
existence by clear and convincing evidence. Consequently, we affirm the Court of
Appeals’ judgment as modified on the separate grounds stated. Costs of appeal shall
be paid by the defendant for which execution shall issue if necessary.
________________________________
RILEY ANDERSON, CHIEF JUSTICE
Concur:
Drowota, Birch, Holder, Barker, JJ.
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