The Tennessee Court of Appeals recently rendered its decision Justice v. Gaiter, No. M2019-01299-COA-R3-CV (Tenn. Ct. App. Oct. 15, 2020). The syllabus from the slip opinion reads:
This appeal arises from a motor vehicle accident in a shopping center complex during the Christmas season. Plaintiff appeals the jury’s finding that he was sixty percent at fault for the accident and the trial court’s denial of his motion for a new trial. Finding that the jury’s apportionment of fault is supported by material evidence and that the trial court did not abuse its discretion in denying the motion for a new trial, we affirm the trial court in all respects.
Here is a link to the opinion:
NOTE: There is a lot going on in this opinion for it to be only six pages long: namely, comparative fault, motions for new trial, the material evidence rule, the thirteenth juror rule, abuse of discretion, etc. Primarily, what I took from it is the discussion of the material evidence rule, which is great in my opinion. For that reason alone, this is a must-read decision for any lawyer who has handles auto cases governed by Tennessee substantive law.
Also, I think the plaintiff left out a potentially culpable person by not suing the driver who waived the defendant into the lane, which probably cost him a win here. That could have been accomplished via the discovery rule or Tenn. Code Ann. sec. 20-1-119 (the comparative fault joinder statute), even if that driver was unknown (with -119 being the more likely way to have done that). Here is why: while a "phantom" tortfeasor or a "John Doe" is generally not allowed in Tennessee under our system of modified comparative fault, see Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785, 786 (Tenn. 2000) ("[W]e 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 . . . ."), they are allowed in auto cases, see, e.g., Breeding v. Edwards, 62 S.W.3d 170, 171 (Tenn. Ct. App. 2001) (allowing fault to be attributed to an unknown tortfeasor in a auto case and a monetary recovery for that fault to be made from plaintiff's underinsured-motorist insurance (UIM)); Marler v. Scoggins, 105 S.W.3d 596, (Tenn. Ct. App. 2002) (allowing fault to be attributed to a John Doe in an auto case under Tennessee law even if there is no UIM to pay plaintiff for fault attributed to the Doe). Doing that would have made a difference in the outcome here because under our state's system of modified comparative fault, a plaintiff may only recover if he is 49% at fault of less. Had the driver been made a party and been found to be more than 10% at fault, which is probable, the plaintiff would have recovered something (minus his fault, of course (which would probably not have been 60% and would have been less than 50% had the driver been added as a John Doe party-defendant)).
Trial practice is not easy, folks. There are so many moving parts in a case at times that it is like herding cats. Lord willing, me all make our way.
P.S. And, of course, if the driver's identity was known (or became known), the plaintiff could have added her as a named party-defendant and the fault calculations above would probably have played out the same way in my opinion.