IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

November 1999 Session

JAMES CARROLL, ET AL. v. CAROLYN WHITNEY, M.D., ET AL.

Appeal By Permission from the Court of Appeals, Western Section

Circuit Court for Shelby County

No. 68714 Janice M. Holder, Judge

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No. W1997-00246-SC-R11-CV - Filed October 4, 2000

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E. RILEY ANDERSON, C.J., dissenting.

The majority departs from settled principles of law in holding that a jury may allocate fault

to an immune nonparty. In so doing, it refuses to apply and overrules the application in this case of

the Tennessee Supreme Court’s unanimous decision just four years ago in Ridings v. Ralph M.

Parsons Co., 914 S.W.2d 79 (Tenn. 1996), that a jury may not allocate fault to an immune nonparty

because the immune nonparty owes no duty to the plaintiff and therefore the plaintiff has no cause

of action against the immune nonparty. 

In my view, the Court of Appeals correctly applied Ridings in concluding that the trial court

erred by instructing the jury that it could assign fault to immune nonparties. I am also convinced that

the majority’s failure to adhere to the doctrine of stare decisis by failing to apply a decision released

only four years ago undermines the reliability and consistency of this Court’s decisions in the area of

comparative fault.

 I therefore dissent.

ANALYSIS

The majority asserts that Ridings is inconsistent with our decision in McIntyre. I do not

agree. Ridings is consistent with McIntyre and the principle that a party’s liability should be linked

to her or her degree of fault. In fact, Ridings was based directly on McIntyre and is neither

unworkable nor unfair to defendants.
1

The plaintiff’s action against the employer fell under the wo rkers compensation statutes.

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In McIntyre, we partially abandoned the doctrine of contributory negligence which barred any

recovery for damages and adopted a system of comparative fault under which a plaintiff may recover

damages for an injury provided that his or her own negligence in causing the injury is less than the

fault of the defendant. In such a case, the plaintiff’s recovery is to be reduced by the percentage of his

or her own negligence. Id. at 57. 

Our decision in McIntyre was a fundamental change in negligence law in Tennessee. It was

based on “considerations of fairness and consistency, as well as to avoid the inconsistent and often

harsh results to plaintiffs whose negligence was far less than that of a defendant or defendants.” Coln

v. City of Savannah, 966 S.W.2d 34, 40 (Tenn. 1998); see also Alcazar v. Hayes, 982 S.W.2d 845

(Tenn. 1998) (courts may determine public policy absent a constitutional or statutory declaration).

Contrary to the majority’s depiction, McIntyre did not achieve the result of completely linking

a party’s liability with his or her degree of fault. We did not, for example, adopt a “pure” system of

comparative fault under which a plaintiff’s recovery is completely linked to his or her fault and under

which a plaintiff does not have to be less at fault than a defendant in order to recover. In fact we

specifically rejected the pure system in McIntyre. 833 S.W.2d at 57 (“We do not agree that a party

should necessarily be able to recover in tort even though he may be 80, 90, or 95 percent at fault.”).

 Thus, a plaintiff who is equally at fault or even slightly more at fault than a defendant may not

recover. 

Accordingly, in adopting a modified system of comparative fault in McIntyre, we considered

matters of policy and fairness to both plaintiffs and defendants in a lawsuit. The effect of McIntyre’s

fairness formula allowed plaintiffs to recover when partly at fault, yet eliminated joint and several

liability so that the defendant was responsible only for its own fault. Under McIntyre, the plaintiff

now assumes the risk of an insolvent defendant and the risk that he or she may not receive full

compensation for damages.

In Ridings, we held that a defendant could not assert as an affimative defense that the

plaintiff’s employer, a nonparty, caused or contributed to the injuries when the plaintiff did not have

a cause of action in tort against the employer.1 The majority now contends that this holding is

inconsistent with the adoption of a “nonparty” defense in McIntyre. This contention was unanimously

rejected in Ridings:

The rationale of McIntyre postulates that fault may be attributed only to those persons

against whom the plaintiff has a cause of action in tort. The designation ‘nonparty’

used in McIntyre is not a term of art; it means ‘not a party.’ However, it is given a

particular meaning by the decision in McIntyre, wherein the Court found that, upon

a defendant’s allegation that a person not a party to the suit, a ‘nonparty,’ caused or

contributed to the plaintiff’s injuries, the plaintiff, by amendment to the complaint and

service of process, may make the ‘nonparty’ a ‘party’ that is answerable to the plaintiff
2

The majority asserts that it is joining the “vast majority” of comparative fault jurisdictions which,

unlike Ridings, “broadly permit allocation of fault to all persons involved in an injury causing event.” It should be

pointed out, however, that several of the jurisdictions have taken this position through legislative acts and not

through the d evelopm ent of case law. E.g., Ariz. Rev. S tat. § 12-25 06A (1 998). Moreover, I note that a number of

other cases, including all states in the sixth federa l circuit, do not allo cate fault to all the p ersons invo lved. Bradford

v. Herzig , 638 A.2 d 608 (C onn. App . Ct. 1994 ); Payne Plumbing & Heating Co. v. Bob M cKiness Excavating &

Grading, 382 N .W.2d 156 (Io wa 1986 ); Baker v. Webb, 883 S.W .2d 898 (Ky. Ct. Ap p. 1994 ); Anderso n v. Harry’s

Army Surplus, Inc., 324 N .W.2d 96 (M ich. Ct. App . 1982); Adams v. Children’s Mercy Hospital, 848 S.W.2d 535

(Mo. A pp. 199 3), overruled on other grounds, 897 S.W .2d (M o. 1995 ); Eberly v. A-P Controls, Inc., 572 N.E.2d

633 (O hio 199 1); Ewen v. McLean Trucking Co., 689 P.2 d 1309 (Or. Ct. Ap p. 1984 ), reversed on other grounds,

706 P.2d 929 (O r. 1985). Thus, the principle in Ridings is not an isolated or unwork able view. 

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in actions for damages according to the Rules of Civil Procedure. Consequently only

a nonparty against whom the plaintiff has a cause of action can be made a party. Since

the plaintiff’s employer cannot be made a party to the plaintiff’s tort action for

personal injuries sustained in the course and scope of his employment, the rationale

of McIntyre, both as to principle and procedure, will not permit fault to be attributed

to the plaintiff’s employer.”

Ridings, 914 S.W.2d at 81-82 (emphasis added). Accordingly, the majority’s view that Ridings is

inconsistent with McIntyre is unfounded.

Just three years ago, we reaffirmed Ridings in Snyder v. LTG Luftechnishe GmbH, 955

S.W.2d 252 (Tenn. 1997), but clarified that a defendant is not prohibited from showing evidence that

an immune nonparty was the cause in fact of an injury. Moreover, we again rejected the arguments

that Ridings was unfair to defendants and inconsistent with McIntyre: 

There is no question that the Court in Ridings considered the ‘fairness’ arguments

advanced here by the defendants and made a policy decision to leave immune

[nonparties] out of the assessment of fault. We thus decline the defendants’ invitation

to reverse Ridings or otherwise depart from the rule adopted in that decision. 

955 S.W.2d at 256; see also Brown v. Walmart, 12 S.W.3d 785 (Tenn. 2000) (fault may not be

assigned to an unknown tortfeasor). These are now, however, the very same arguments the majority

accepts for refusing to apply Ridings.

2

 

In sum, our comparative fault decisions beginning with McIntyre have been guided by policy

and fairness concerns. As can be seen, Ridings was expressly based upon McIntyre. Nothing in

McIntyre or Ridings has changed – the “principle and procedure” remain the same. Only the Court

has changed, a majority of which has decided to adopt a different policy based on its view that

Ridings is now inconsistent with McIntyre and unfair to defendants because it does not fully link a

defendant’s liability with its degree of fault. I cannot agree with this 180-degree change in course.

The majority supports its abrupt change of direction by asserting that Ridings has proven to

be unworkable in all but workers’ compensation cases and an impediment to appellate review. It
3

I would also observe that the majority has chosen the new course without briefing or consideration

of other alternatives for addressing the risk of loss created by the presence of an immune nonparty, such as

distributing the fault of an immune nonparty be tween the parties.

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argues that the trial court’s instruction for the jury to assign fault to immune nonparties resulted in

a “fully informed” verdict that cannot effectively be reviewed. It also contends that under Ridings

a jury may act out of sympathy for the plaintiff and assign an undue percentage of fault to a defendant

because it is prevented from assigning fault to the immune nonparty. These concerns are misplaced

for several reasons.

First, there is no question that the trial court’s instruction was erroneous and improper under

Ridings, which was decisional law at the time of trial. Even if one accepts the majority’s assertion

– which I do not – that the “error” enabled the jury to be more “fully informed” of the facts, it was

“not informed” of the law to be applied to those facts. Far from rendering the verdict harmless, the

verdict is inherently, legally flawed. Moreover, under Snyder, the jury is not precluded from hearing

the facts about the conduct of an immune nonparty for the purpose of considering the element of

causation.

Next, unlike the majority, I am unwilling to presume that under Ridings a jury will disregard

its instructions and base its verdict solely upon sympathy for the plaintiff. The Supreme Court has

as a matter of institutional faith based its decisions on a presumption that juries are honest and

conscientious and will follow instructions given to them. E.g., State v. Williams, 977 S.W.2d 101,

106 (Tenn. 1998) (jury is presumed to have followed instructions). Under McIntyre, if a plaintiff is

not less at fault than a defendant, the plaintiff cannot recover. Nothing in Ridings changed this

fundamental procedure. 

The majority’s decision also fails to take into account the implications of immunity. The

decision to extend immunity to a person or entity, as in this case with state employees, is generally

a legislative determination that, in theory, benefits the public as a whole. In the context of litigation,

however, it creates a risk of loss that is borne by a plaintiff who cannot recover in tort from the

immune person or entity. In Ridings, we balanced the risk by holding that a defendant, similar to the

plaintiff, cannot assign fault to an immune nonparty. Without any new or intervening reason, the

majority has now completely reversed course and has placed the entire risk of loss on the plaintiff.

As one commentator has written, plaintiffs should not be punished “for society’s choice to render

certain persons immune from tort liability.” Cardi, Apportioning Responsibility to Immune

Nonparties: An Argument Based on Comparative Responsibility and the Proposed Restatement

(Third) of Torts, 82 Iowa L. Rev. 1293 (1997).3

Finally, the majority’s decision violates the fundamental principle of stare decisis. This

principle, under which a court should depart from its prior decisions only upon rare and exceptional

occasions, is designed to achieve consistency in the law and to promote confidence and reliance on

the Court’s decisions. E.g., Barnes v. Walker, 234 S.W.2d 648 (Tenn. 1950). Accordingly, under

stare decisis, when a supreme court re-examines a prior holding it is required to ask whether related
4

Ridings is therefore in stark contrast to the cases cited by the majority in which the Court has

departed from stare decisis. For example, in State v. Dominy, 6 S.W.3d 472 (Tenn. 1999), we overruled a rule that

had proven to be unworkable for trial courts and unfair to both the State and defendants. In State v. Reeves, 916

S.W.2d 909 (T enn. 1996), we overruled a rule that no longer was consistent with amended statutory law. In State v.

Kendricks, 891 S.W .2d 597 (T enn. 1994), we o verruled a doctrine that was initiated in 184 8, had an explicitly sexist

genesis, was unworkable and prejudicial to defendants. In State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992),

we overruled a prior interpretation of law based specifically on the Tennessee Constitution.

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principles of law have so far developed that the old rule has been left no more than a remnant of

abandoned doctrine, whether facts have changed from those which furnished the justification for the

earlier decision so as to rob the old rule of its justification, whether the rule has been subject to the

kind of reliance that would lend hardships to the consequences of overruling it and add inequity to

the cost of repudiation, and finally, whether the rule has proven to be intolerable in defying practical

workability. See Patterson v. McLean Credit Union, 491 U.S. 164, 173, 109 S. Ct. 2363, 2370, 105

L.Ed.2d 132 (1989); United States v. Title Ins. & Trust Co., 265 U.S. 472, 486, 44 S. Ct. 621, 623,

68 L.Ed. 1110 (1924).

When the stare decisis principle is applied in this case, the answer is clear – the Ridings rule

is alive and well and no related legal principles have in any sense developed so as to require its

abandonment. To the contrary, it has been a fundamental building block in the development of

comparative fault law. Nor have any facts changed since the adoption of McIntyre or Ridings which

would rob Ridings of its justification.4

 Although the majority now limits Ridings to workers’

compensation cases, there was no such limitation or explanation in either Ridings or Snyder.

Moreover, this Court had previously cited to or discussedRidings on several occasions without either

limiting the rule to workers’ compensation cases or indicating that the sole basis for the rule was an

employer’s right of subrogation. E.g.,Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn.

2000); Samuelson v. McMurtry, 962 S.W.2d 473 (Tenn. 1998); George v. Alexander, 931 S.W.2d

517 (Tenn. 1996). Accordingly, the majority’s claim that its new decision is consistent with the

doctrine of stare decisis is unconvincing. 

 

All of the people of Tennessee, its citizens and corporations, its bench and bar, have relied on

the rules laid down by McIntyre, Ridings, and their progeny, as have those who have made subsequent

laws and all have made choices in reliance on these principles. The rules have worked and will work

in practical terms and to repudiate them will cause serious inequity and hardship. Because neither

the facts nor the circumstances nor the surrounding legal principles have changed, this Court’s reexamination of this case has no justification beyond a present doctrinal decision to reach a different

result from the unanimous Ridings Court. That is a grossly inadequate basis for overruling a prior

case and is a threat to the institutional consistency of the Supreme Court. 

CONCLUSION
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In McIntyre, this Court acted in the interest of sound policy and adopted a system of modified

comparative fault based on fairness to both plaintiffs and defendants. Our unanimous decision in

Ridings was expressly based on McIntyre. There is nothing in this case that demonstrates Ridings

was wrongly decided or should be abandoned in all but workers’ compensation cases. Although the

majority states that the motivation for its new decision is to achieve fairness by more closely linking

a party’s liability with his or her degree of fault, the majority’s discussion does not consider a “pure”

system of comparative fault. Instead, the majority’s failure to applyRidings simply indicates that it

has opted for a different policy.

The doctrine of stare decisis is one of “paramount importance” and the power of the Court

to overrule prior decisions should be used sparingly. Barnes v. Walker, 234 S.W.2d at 649. Because

I am convinced that the majority’s decision creates inconsistency in the law and undermines the

reliability of this Court’s decisions as an institution, I believe this is a classic example of when

adherence to stare decisis is appropriate. I therefore dissent.

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E. RILEY ANDERSON, CHIEF JUSTICE