### IN THE SUPREME COURT OF TENNESSEE AT JACKSON November 1999 S ession

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



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

________________________________

E. RILEY ANDERSON, C.J., di ssenting.

The majority dep

arts 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 Supre

me Court’s unanimou

s decision just four

years ag o in Ridin gs v. Ralph M. Parsons Co. , 914 S.W.2d 79 (Tenn. 1996), that a jury ma y not alloca

te fault to an immune nonparty because the immune nonpart

y owes no duty

to the plaintiff an

d 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 fa

ult.
I therefore

dissent.

ANALYSIS
The majority ass

erts that Ridings is inconsistent with ou r 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 n eithe r unworkable nor u

nfair to defenda

nts.1 The plaintiff’s action against the employer fell under the wo rkers compensation statutes. -2- In McIntyre, we partially abandoned the doctrine of contributory negligence which barred any recovery for damages and adopted a system of comparative fa

ult under which a plaintiff may recover damages for an injury provided that his or her own neglig

ence in causing

the injury is l

ess than the fault of the defendan

t. In such a ca

se, the plaintiff’ s recovery is to be reduced

by the perc

entage of his or her own negligence. Id. at 57.
Our decision in McIntyre

was a f undam ental change in neg ligen ce law in Ten nesse e. 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 (Te nn. 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 notachieve the result of completely linking a party’s liability with his or her degre e 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 orher fault and under which a plaintiff

does not have to be less at fault than a defendant in order to recover. In f ac t w e specifically rejected the pure sy stem 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 ev e n slightly more at fault than a defendant may not recover.
Acco rdi ngly, in adopting a modified system of comparative fault in McIntyre , we considered matters of policy an

d fairness to both plaintiffs a

nd defendants in

a lawsuit. The effect of McIntyre’s fairness formula allowed plaintiffs to recover when partly at fault, y et eliminated joint and several liability so that the defend

ant was responsib

le only for its own fault. Under McIntyre , the plaintiff now assumes the risk of aninsolvent de fendant and the r isk that he or she ma

y not recei

ve 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, c

aused or contribu

ted to the injuries w

hen the plaintiff d

id not have a cause of ac tion in tort against the employer. 1 The majority now contends that t

his holdin g i s inconsistentw ith the ado ption of a “nonparty” defense in McIntyre . This contention wa s unanimously rejected in Ridings : The rationale of McIntyre postulates that fault may be attributed only to those persons against whom thepla int iff has a cau se o f act ion in t ort . Th e des igna tio n ‘n onp art y’ 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 all

egation that a pe

rso n not a party to the suit, a ‘nonparty,’ ca used or contributedto 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 plaintiff2 The majority asserts that it is joining the “vast

majority” of comparative fault jurisdictions which, unlike Ridings , “broadl y permit allocat ion of f ault t o all pers

ons invol

ved in an i

njury ca using ev ent.” I t shoul d be pointed out

, however,

that s everal of

the jur isdict ions have

taken t his posi tion th rough leg

islat ive act s and not through the d evelopm ent of case law

. E.g. , Ariz. Rev. S tat. § 12-25 06A (1 998). Moreover, I not e 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, I

nc. , 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), overrule d on other g

rounds , 897 S.W .2d (M o. 1995 ); Eberly v. A-P Control s, Inc. , 572 N.E.2d 633 (O hio 199 1); Ewen v. McLean Truck ing Co. , 689 P.2 d 1309 (Or. Ct. Ap p. 1984 ), reversed on other gr ounds , 706 P.2d 929 (O r. 1985). Thus, the principle in Ridings is not an isolated or unwork able view. -3- in actions for dama

ges according

to the Rules of Civil

Procedure. Consequently only a nonparty a

gainst whom the pl

aintiff has a ca

use 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 proc

edure, will not perm

it fault tobe attributed to the plaintiff’s employer .” Ridings , 914 S.W.2d at 81-82 (emphasis added). Accordingly, the m ajority’s view that Ridings is inconsistent with McIntyre is unfounded.
Just three years ago, we reaf f irmed Ridings in Snyder v. LTG Luftec hnishe 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 : Ther e is no question that the Court in Ridings considered the ‘ fairness’ argument s 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 25 6; see also B rown 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 acce pts for refu sin g to a ppl y Ridings

. 2
In sum, our

comparative fault decisions beginning with McIntyre

have been guided by policy andfairness 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 diffe rent policy

bas ed on its view that Ridings is now inconsistent with McIntyre andunfair to defendants because it does not fully link a defendant’s liability

with its degree o

f fault. I cannot agree with this 180-degree chang e in course.
The majority supp

orts its abrupt cha

nge of directio

n by asserti

ng that Ridings has proven to be unworkable in all but workers’ compensation cases and an impediment to appellate review. I t3 I would al so observe t hat the majorit y has chosen the new

course wi

thout br iefin g or consi

deration of other alt

ernatives f

or addressing t

he risk of l

oss created by t

he presence of an i

mmune nonparty, su

ch as distributing the fault of an immune nonparty be tween the parties. -4- argues that the tria

l c ourt’s instruction

for the jury

to assign fault to

immune nonparties

resulted in a “fully informed” verdict that cannot effectively be reviewed. It also c o ntends that under Ridings a jury may act out of sy

mpathy for the plaintiff and assign an undue p

ercentage of

fault to a defendant because it is prevented from

assigning fault to the immune nonparty. These concerns are misplaced for several re

asons. 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 a ssertion

–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 flawe d. 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 elementof 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 mat ter of institut ional 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) (jur

y ispresumed to

have followed instructions). Under McIntyre , if a plaintiff is notless at fault than a defendant, the plaintiff cannot recover. N ot hing 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 enti

ty, as in this case with state e

mployees, is

generally a legislative dete

rmination that, in th

eory, bene

fits the public

as a whole. In the context of litigation, however, it creates a risk of loss that is borneb y 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 f

ault t o 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 fro m t ort liability.” Cardi, Apportioning Responsibility to Immune Nonparties: An Argument Based on Comparative Responsibility and the Propos ed Restat ement (Third) of Torts , 82 Iowa L. Rev. 1293 (1997). 3
Fin all y, the majority’s decision violates the fundamental principle of stare deci sis

. This principle, under

which a court should depart from its prior decisions only upon rare and exceptional occasions,is designed to ac hieve consistenc

y in the law a

nd 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

related4 Ridings is theref ore in stark

contrast t

o the cases cit

ed by the majorit

y in which t

he Court has depart ed from stare decisis . For example, in State v. Dominy , 6 S.W.3d 472 (Tenn. 1999), we overruled a r ule that had proven to be unworkable for trial courts and unfair to both the St ate 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 specifi cally on the Tennessee Constitution. -5- princi ples of law have so far developed that the old rule has been left no more than a remna nt o f abandoned

doctrine, whethe

r facts have cha

nged from those

which furnished

the justification for the earlier decisio

n so as to rob the old r

ule of its justification, whether the rule has been subject to the kind of reliance that would lend hardships to the consequences of

overruling it an

d add inequity

to the cost of repudiation, and finally, whether the rule has proven to be intolerable in def ying practical wor kab ili ty. See Patterson v. McLean Credit Union , 491 U.S. 164, 173, 109 S. Ct. 2363, 2370, 105 L.Ed.2d 132 (1 989); United States v. Titl e Ins. & Trust Co. , 265 U.S. 472, 486, 44 S. Ct. 621, 623, 68 L.Ed. 1110 (1924).
When the stare decisis

principle is appliedin this case, the a nswer is clear – the Ridings rule is alive and well an

d no related leg

al principles hav

e in any sen

se developed so a

s to re quire its abandonment. To the contrary, it has been a fu ndamental building block in the development of comparative fault law. Nor have any facts change d since the adoption of McIntyre or Ridings which would rob Ridings of its justification. 4 Alt hou gh th e ma jor ity now limi ts Ridings to workers’ compensation cases, there was no such limitation or expl anation in either Ridings or Snyder

. Moreover, this Court had previously cited to or discussed Ridings on several occasions without either limiting the rule to workers’ compensation cases or indicating that the sole basis for the rule was an employer’sright of subrogation. E.g. , Brown v. Wal-Mar t Discount Ci ties , 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 (T enn. 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

dow n by McIntyre , Ridings , an d th eir pro geny, 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 ca use se rious inequity and hardship. Because neither the facts nor the cir

cumstances nor th

e surrounding le

gal principle

s 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-6-

In McIntyre , this Court acted in the interest of sound policy and adopted a system of modified co mparative fa ult based on fairn ess to both plaintiff

s and defendants . Our unanimous dec ision in Ridings was expressly based on McInty re
. There is nothing

in this case that de

monstrates Ridings was wrongly

decided or should be abandoned in all but workers’ compensation cases. Although the majority states that the motiv

ation for its new de

cision is to achiev

e fairness by more closely linking a party’s lia

bility 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 apply Ridings simply indica tes that it has opt ed fo r a di ffer ent pol icy.
The do ctrin e of stare decisis is one of “paramount importance” and the power of the Court to overrule prior d

ecisions should

be u sed spa rin gly. Barnes v. Walker , 234 S.W.2d at 649. B ecause I am convinced that the majority’s decision creates inconsistency in the law and under

mines t he reliability of this Court’s dec

isions as an institutio

n, I believe t

his is a c lassic example of when adherence to stare decisis is appropriate. I

therefore disse

nt.

____________________________________ E. RILEY ANDERSON, CHIEF JUSTI CE