# FILED

December 29, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE (HEARD AT UNION CIT Y)

FOR PUBLICA

TION EMMA D. TURNER and ) Filed: December 29, 1997 RUFUS L. TURNER, ) ) Appellants/Cross-Appellees, ) DAVIDSON LAW ) ) Vs. ) ) HON. WALTER C. KURTZ, ) JUDGE HAROLD W. JORDAN, M.D., ) ) Appellee/Cross-Appellant. ) No. 01-S-01-9609-CV-00179

For Appellant

s/Cross-Appel lees: For Appellee/Cross-Appellant: William D. Leader, Jr. W. W arner McNeilly, Jr. Eugene N. Bulso, Jr. WATKINS, McGUGIN, BOULT, CUMMINGS, CONNERS McNEILLY & ROWAN & BERRY, PLC Nashville, Tennessee Nashville, Tennessee



## O P I N I O N

AFFIRMED IN PART; REVERSED IN ANDERSON, C.J. PART; AND R EMANDED TO TRIAL COURT.1 Ora l argu me nt wa s hea rd in th is cas e on A pril 8, 1 997 , in Un ion C ity, Ob ion C oun ty, Tenn essee , as part of this Cou rt’s S.C.A.L .E.S. ( S upreme C ourt A dvancing L ega l E ducation fo r S tudents ) project. -2- We granted this appeal to determine whether a psychiatrist ow

ed a duty of care t o protec t a hospital nur

se from t he viol ent and i ntentio nal acts of a hospitalized mentally

ill patient. If such a duty is owed, the next is

sue to be decided is whether the patient’s intentional conduct should be co nsidered in determining comparative fault under McIntyre v. Balenti ne , 833 S.W.2d 52 (Tenn. 1992). The final issue is whether, after finding that the jury verdict as to fault is contrary to the w eight of the evidence, the tr ial court may realloc

ate comparative fault in lieu of ordering a new trial. 1

The trial court determined that the psychiatrist in this case owed a duty of care to the nurse, and instr ucted the jury to conside r the intentional conduct of the patient, a non-party, i n determining the psychi atrist’s comparative fault. The jury returned a ver

dict for the nurse in the amount of $1,186, 000. It allocated the fault as 100 percent to the psyc hiatrist and zero perc

ent to the patient. The trial court approved the jury ’s verdict except

as to the allocation of fault, and g ranted a new trial. The Court of Appeals affirmed, finding that a duty was owed, that the patient’s intentional conduct should be compared with the psychiatrist’s negligence, and that a new trial should have been g ranted.

We agree that the psychiatrist ow ed a duty of care because he knew or should have known that hi s patient posed an unreasonable r isk of harm to a foreseeable, readily identi fiable third party. We have also deter mined that the trial court erred in instructing the jury to compare the patient’s intentional conduct with the defendant’s negli gence in allocating fault . We, however, consider the error harmless because the jury allocated 100 perc ent of the fault to the negligent defendant psychi atrist. Finally,although not applicable her e, in view-3- of our re sult we have decided that the trial cour t may not re allocate compara tive fault after weighing the evidence as the thirteenth juror, but must instead gr ant a new trial. Accordi ngly, we rev erse the Court of Appeals in par t and affirm in part, and remand this case to the trial court for entry of a judgment on th e jury’s verdict.

BACKGROUND In March of 1993, the plaintiff, Emma Turner, a nurse at Hubbard Hospital in Nashville, was attacked and severely beaten by Tarry Williams, a psychiatric in-patient at the hospital. The defendant, Harold Jordan, M.D.,was the attending psychiatrist.

Williams, who had been diagnosed as bipol ar and manic, had been a patient at Hubbard on five pri or occasions; three of these ti mes he was found to be a danger to himself or others and was committed to the Mi ddle Tennessee Mental Health Institute. On one occasion, in April of 1990, Williams tried to attack Dr. Jordan with a table leg, but hospital staff intervened.

On March 4, 1993, Williams was again admitted to Hubbard’s psychiatric ward and examined by a resident physician. Williams’s history indicated tha t he had not taken his prescribed lithium, which was used to control his bipola r disorder, for over a w

eek. Williams also reported that he had met w ith “Gorbachev and Saddam Hussei n” and that he had “classified i nformation” about space flights and nuclear s cience. The resident physi cian determined that Williams had illogical and disor ganized thinking, fli ght of ideas, grandiosity, and delusional thinking. Li

thium was prescribed, w hich takes five to seven days to reach a therapeutic level.-4- The next day, on March 5, 1993, Dr. Jordan review ed and approved the resident physician’s

orders. He and members of a treatment team then attempted to interview Williams, who refused to cooperate and left the interview. The treatment team then discussed the c ase for thirty to forty-

five minutes, after which Dr. Jordan wrote:
This patient presents no behav ior or clinical ev

idence suggesting that he is suicidal. He is aggressive, grandios e, intimidatin g, combative, and dangerous . We will discharge him soon by allowing him to sig n out AMA [Against Medic al Advice].
(Emphasis added). That evening , according to notes, Williams, althou gh quiet and non-disruptive, had an “ angry and hostile” affect. Around 11:30 p.m., after requesting a cigar

ette and asking the nurse, Emma Tur ner, about being discharged, Williams attacked Turner, inflicting severe head injuries.

Thereafter, Emma Turner sued Dr. Jor dan for medical negligence, alleging he violated his duty to use reasonable care in the treatment of his patient, which proximately caused her injuries and damages. At trial, Dr. David Sternberg, a psychiat ric expert witne ss, testified that Jordan’s fai lure to medicate, restrain, seclude or transfer W illiams fell below the standard of care for psychiatrists. H e explained:

The standard of care in a case li ke this requires, fir st, an evaluation of whether the patient is a danger to himself or others. And, indeed, Dr. Jordan determined,it seems to me from the record, both his deposition and from the rec ords from the hospital, that the patient was, indeed, dangerous. Then the standard of care requires, if a patient is

found, in fact, to be dangerous, that the patient be prev ented fro m acting

on that d angerou sness; that staff be informed, of course, about the patient’ s dangerousness; that the patient be medicated, if necessary, to prevent acting on the dangerousness, or be restr ained or secluded; or that the patient be transferred to another treatment s etting which could han dle a patient who is of that severe dangerousness.2 Prior t o trial , the tr

ial cour t had overrul ed the plai ntiff ’s motion i n limine aski ng that t he negligent

conduct of the

defendant not

be compared with the intent ional act

of Williams. At trial there was no alle gatio n or p roof that th e plain tiff he rself was neglig ent in any wa y. -5- In his own defense, Dr. Jordan testi fied that he di d not remember Williams or any information about his dangerousness prior to the attack on Emma Turner. He agreed that had he known about W illiams’s prior dangerousness, he would have discharged him. H owever, Dr. Jor dan’s discharge summary written after the incident said:
Realizing that this

patient had been hospitaliz ed on this issue before and exhibited some hostil e and violent behavior and question ing the vera city of his stateme nt that h e was suicid al, we wrote an order indicating that [Williams] could be encourag ed to sign out and be allowed to sign out on request. We considered discharging him outri ght because of his history of violent behavior

. In addition, Linda Lawrence , nursing coordinator a t Hubbard Hospital, testified that Williams’s past violent behavior, including the attem pted attack on Jordan in 1990, had been discussed during the treatment team meeting on Mar ch 5, 1993.

After the completion of the proof, the tri al court instructed the j ury on the law of comparative fault, and it provided the jury with a verdict form indicating it could allocate the fault, if any , between the alleged neg ligence of Dr. Jordan and the alleged intentional conduct of patient W illiams. 2 The jury returned a verdict for the plaintiffs, Emma and Rufus Turner, al locating 100 percent of the fault t o defendant Jordan. The trial court approved all of the jury ’s verdict except

the allocation of fault. As a result, it granted the defendant’s moti on for new trial, but thereafter granted an interl ocutory appeal. The Court of Appeal s affirmed.

We gra nted the appeal t o conside r the impo rtant que stions of duty, comparison of fault between a negl igent actor and an intentional actor, and the trial court’s authority to reallocate fault in lieu of granting a new trial.-6- LEGAL DUTY First, the defendant psychiatrist asserts that the lower courts erred in determining that he owed a duty of care to protect the pl aintiff nurse the unforeseeable and uncontrollable ac ts of his patient. The nurse, how ever, argues that the psychiatrist had a duty of care to protect her from forese eable risks of harm posed by his hospitalized mentally

ill patient.

To determine whether a duty exists, we turn fir st to familiar principles

of negligence enunciated by our earlier cases. A c laim for negligence req uires the following elements: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct by the defendant falling below the standard of care amounti ng to a breach of that duty; (3) an i njury or loss; (4) causation in fact; and (5) pr oximate or legal cause. Bradshaw v. Daniel , 854 S.W.2d 865, 869 (Tenn. 1993).

The existence of a duty is a question of law for the cour t which requires consideration of whether “ such a relation exists

between the parties that the community will impose a legal obligation upon one for the benefit of others-- or, more simply, whether the interest of the plaintiff whi ch has suffered invasion wa s entitled to legal protection at the hands of the def endant.” Id . a t 8 70 , q uoti ng , W. Keeton, Prosser & Keeton on the Law of Torts , § 37 at 236 (5th ed. 1984). The imposition of a legal duty “reflects society’s

contemporary policies and social requirements concerning the rights of indivi duals and the general public to be protected from another’s act or conduct.” Id . at 870.

In deter mining whe ther a dut y is owed in a p articula r case, we h ave generally used a balanc ing approach consistent w ith principles of fairness. See McClung v. Delta Square Ltd. Partnership , 937 S.W.2d 891, 901 (Tenn. 1996) (summarizing our cas

es on “duty” component). I n McCall v. Wilder , 913 S.W.2d3 In this regard, we observe that t he analy sis of d uty an d proxi mate cause is simila r. As Pross er has n oted, “it is quite p ossible to s tate every qu estion wh ich arises in conne ction with ‘proximate cause’

in the f orm of a single question: was t he defendant under a duty t o protect the plaint iff agai nst the event which did i n fact occur?” Prosser § 42 at 274-75. Thus, whi le duty and proximate cause are separ ate components of a negl igence clai m, the analy sis for each may require consi deration o f foreseeabi lit

y prin ciples and pu blic pol icy matter s. Prosser § 42 and § 53 at 273-7 6, 356-3 58; see also Bain v. W ells , 936 S.W .2d 618, 6 25 (Te nn. 1997 ). -7- 150, 153 (Tenn. 1995), we explained that “[a] risk is unreasonable and gives rise to a duty to act with due care if the foreseeable probability and gravity of harm posed by defendant’s conduct outweigh the burden upo n defendant to engage in alternative conduct that w ould have prevented the har m.” Among the several factors which must be considered are
the foreseeable probability of the harm or injury occur ring; the possible magnitude of the potential harm or injury; the importa nce or social value of the acti vity engaged in by defendant; the usefulness of the conduct to defendant; the feasibi lity of alternative, safer conduct and the relativ e costs and burdens associated with that conduct; the relativ e usefulness of the safer conduct; and the relative safety of alter

native conduct.

Id . at 153. See also McClung , 937 S.W.2d at 901. 3 In general, “the degr ee of foreseeability needed to establ ish a duty of care decreases in proportion to the magnitude of the foreseeable harm. ” Pittman v. Upjohn Co. , 890 S.W.2d 425, 430 (Tenn. 1994).

Although we have generally held that a person has a duty to use reasonable care to refrain from c onduct that will foreseeabl y cause injury to others, Doe v. Linder Construc tion Co. , 845 S.W.2d 173, 17 8 (Tenn. 1992), this duty does not extend to the pr otection of others from the dangerous conduct of third persons unless the defendant “stands in some special relationship to either the person who is the source of the danger, or to the person who is foreseeably at risk from the danger.” Bradshaw , 854 S.W.2d at 871, citing, Restatement (Second) of Torts § 315 (1964). A s we said in Bradshaw , “while an actor is always bound to prevent his acts from creating an unreasonable risk to others,4 As we have said, a physici an/pati ent relationship i s necessary for a medical malpracti ce claim b ut not a ne gligence action. Bradshaw , 854 S.W .2d at 870 ; Pittman v. Upj ohn Co. , 890 S.W .2d at 430

. -8- he is under the affirmative duty to act to prevent another from sustaining harm only when certain socially recognized relations exist which constitute the basis for such legal duty.” 854 S.W.2d at 871, quoting, Harper & Kime, The Duty to Control the Conduct of Another , 43 Yale L.J. 886, 887 (1934).

In McClung , for example, we joined the vast majority of jurisdictions in recognizing that a business has an affirmative duty to take “reasonable measures to protect their cu stomers from foreseeable criminal attacks” if the business “knows, or has reason to know, either from what has been or should have been observed or from pas t experience, that cri minal acts against its customers on its premises ar e reasonably foreseeable. . . .” 937 S.W.2d at 901- 902. The determination of whether a duty is owed requi res a balancing of the foreseeability and gravity of the potential harm against the burden impose d in protecting against that

harm. Id . at 902.

We have also employed this analysi s in the context of a physi cian/patient relationship. 4 In Bradshaw we held that the physi cian/patient relationship w as sufficient to impose an affirma tive duty on the physician to warn identifiable persons in the patient’s family against foreseeable risks related to the patient’s illness. 854 S.W.2d at 872. Similarly, in Wharton Transport Corp. v. Bridges , 606 S.W.2d 521, 526 (Tenn. 1980), we held that a phy sician owed a duty to a third party who had been injured by a truck driver the physician had negligently examined and certified. In cont rast, in Pittman v. Upjohn Co. , supra , we held that a physician did not owe a duty to a non-patient where it was not reasonably foreseeable that the non-patient w ould take medication prescri bed for the physician’s patient. 890 S.W.2d at 430.5 See e.g. , Lipari v. Sears, Roebuck & Co. , 497 F. S upp. 185 (D. Neb . 1980); Hamm an v. County of Mari copa , 775 P.2d 1122 (A riz. 1989); Perreira v . State , 768 P.2d 1198 (Col. 1989); Naidu v. Laird , 539 A.2d 1064 (D el. 1988); Durfling er v. Art iles , 673 P.2d 86 (Kan. 1983); McIntosh v. Mi lano , 403 A.2d 500 (N .J. 1979) ; Peterse n v. State , 671 P.2d 230 (W ash. 19 83); Schuster v. Altenberg , 424 N.W .2d 159 ( W is. 1988). -9- These same principles apply in addressing whether a psychiatrist has a duty to protect a third pa rty from the violent ac ts of a patient. In Bradshaw we cited with approval Tarasoff v. Regents of University of California , 17 Cal. 3d 425, 131 Cal.Rptr. 14, 55 1 P.2d 334 (1976), in wh ich the Cal ifornia Supr eme Court, citing Restatement (Second) of Torts § 315, held tha t a psychotherapist had an affirmative duty of care to protect a forese eable third party from his patient who presented a ser ious threat of danger. The court explained that, depending on the nature of the case, the duty of care may requi re warning the victim, notifying the police, or whateve r other steps are reasonabl y necessary to protect the third party . 17 Cal.3d at 430, 131 Cal. Rptr. at 20, 551 P.2d at 340.

The majority of courts, applying Tarasoff principles, have held that where a psychiat rist, in ac cordance with accep ted stan dards of the prof ession, k nows or reasonably should know that a mentally ill patient poses an unreasonable risk of harm to a foreseeable third party, he or she must take reasonable steps to prevent tha

t harm. 5 In Naidu v. Laird , for example, the Delaware Supreme Court explained the basis for impos ing a duty in Tarasoff situations:
The special relationship w hich exists between mental health professionals and a patient prov ides the underlying bas is for imposition of an affirmative duty owed by such professionals to persons other than the patient. That duty is to take what ever steps are reasonably necessar y and available to pr

otect an intended or potential victim(s)

of the patient when the psyc hiatrist determines or should have determined, in k eeping with the professi onal standards of the community, that the patient presents an unreasonable danger to that person(s).

539 A.2d at 1075.-10- Similarly, in Hamman v. County of Maric opa , the Arizona Supreme Court held that a psychiatris

t owed a duty where

he denied hospital admittance to a schizophrenic patient with a lengthy history of violent behavior who, the Court said, assaulted and sever ely injured his step-

father:
We reject the notion that th e psychiatrist’s duty to third persons is limited to those against w hom a specific threat has been made. We hold that the standard originally suggested in Tarasoff

is properly applicable to psychiatrists. When a psychiatrist determines, or under applicable professional stand ards reasonably should have determined, that a p atient poses a serious ri sk of violence to others, the psychiatrist has a duty to exercise reasonable care to protect th e foreseeable victim of that dang er. The foreseeable victim is one w ho is said to be withi n the zone of danger, that is subject t o probable risk of the patient’ s violent conduct.

775 P.2d at 1127-28. Likewi se, in Perreira v. State , the Colora do Supreme Court held that a psychi atrist owed a duty w here a patient with a long history of mental illness and psycho tic behavior was r

eleased from involuntary treatment and then shot a police officer. The cour t considered
the existence of a special r elationship between a psy chiatrist and an involuntarily c

ommitted mental patient and the resulting degree of control which the psy chiatrist has over the patient as a result of that relationship; the foreseeabi lity of harm to others from the failure of the psychiatris t to take protective action for the benefit of others; the social utili

ty of the psychiatric

decision to release an involuntarily committed patient; the magnitude of the bur den of guarding against violent acts committed by an involuntarily committed mental patient subsequent to release; and the practic al consequences of placing that burden upon the psychiatri st.

768 P.2d at 1214-15. See also Petersen v. State , 671 P.2d at 237.

Here, the plaintiffs argue that Dr. Jordan had a duty of car e because he knew or should have k

nown that Williams posed an unreasonable r isk and because the plaintiff, as a nurse on the psychiatric unit, was a forese eable victim. The defendant maintains that no du ty existed because Williams was a6 The defendant rel ies on cases which , in fi nding no duty existed, emphasized the patient’s ou tpatient statu s and/o r the abs ence o f a threat to a specific vic tim. King v. Sm ith , 539 So.2d 2 62 (Ala. 19 89)(em phasizing therapist’s minim um c ontrol ove r a voluntar y outpatient); see also Brady v. Hopper , 751 F.2 d 329 (1 0th Cir. 19 84)(unk nown v ictim); Hasenei v. Uni ted States , 541 F. S upp. 999 (D. Md . 1982)(ins ufficient co ntrol over o utpatient); Burchfiel d v. United States , 750 F. Supp. 1312 ( S.D. Miss. 1990) (voluntary pati ent; unfor eseeable vi ctim). Li ke the majority of cases , howeve r, we view th ese fac tors as re levant to bu t not dispo sitive of the d eterm ination. -11- voluntary patient w

ho did not specifically threaten the plaintiff or present an unreasonable

or foreseeabl e risk of har m. 6

The Court of Appeals, like the tr ial court, found that a duty ex isted under the facts of this case. The intermediate cou rt said: “Dr. Jordan’s duty to protect third persons from foreseeable bodily harm exist[ed] beyond tho se whom Mr. Williams specifically threatened to th ose persons who [were] members of a class of persons whose safety would, with reasonable foreseeability, be placed at risk by Mr. Williams’ uncontrolled ac tions.”

As the Court of Appeals observ ed, the Tarasoff

cases, like our decision in Bradshaw , supra , emphasized the presence of a spec ial relationship, that i s, the psychiatr ist/pati ent relat ionship. The case s furthe r conside r the fac tors we have typically balanced in determining whether a duty exists: the fores eeability and severity of potential h arm; the nature of the defendant’s conduct; and the availability, sa

fety and effectiveness of alternati ves. See McCall , 913 S.W.2d at 153.

Applying these factors, we agree that Dr. Jo rdan, as Williams’s attending psychiatrist, ow

ed a duty of care to the plainti ff, a nurse on the psychiatric unit. He knew of Williams’s prior v iolent conduct while hospitalized, including one occasion in which Williams attack ed a member of the hospital staff (indeed, Jordan himself). Dr. Jor dan was also well aware of Williams’s present dangerousness -- he described W illiams as “aggressive, grandiose, intim idating,-12- combative, and dangerous.” Although this unreasonable risk of harm was reasonably apparent, Dr.Jordan, who had the ability to control Williams in the inpatient psychiatric

ward, took no action other than to recommend Williams be encouraged to request dis charge against medical advice. Although the defendant now contends that he had no cont rol over Williams and that he was obligated to apply the l east restrictive means of treatment, the record indicat es that he neve r consider

ed other reas

onable measur

es to preve nt the risk

Williams posed to other patients, staff mem bers, or other readily identifiable foreseeable victims.

We stress that we are not requiring psychiatrists or physicians to possess perfect judgment or a degree o f clairvoyance in deter

mining whether a patient poses a risk of harm to a thir d person. Instead, we merel y hold that a duty of care may exist where a psychiatrist, in accordance with professional standards, knows or reasonably

should know that a patient poses an unreasonable risk of harm to a foreseeable, readily identifiable third person. The courts below correctly held that th e facts in this case met this s tandard.

COMPARATIVE FA

ULT Having determined that a duty of care exists i n this case, we now turn to the issue of whether the defendant psy chiatrist’s negligence should have been compared with the intentional act of the non-party patient Williams in determining the extent of the defendant’s liabil ity to the plaintiffs.7 In suppo rt of this con tention, the p laintiffs rely on a s eries of c ases h olding that a psychiat rist who owes a duty of car e to a pati ent may not, i f sued for negl igence by or on behalf of a pat ient, re ly upon the s elf de struc tive or suicid al act of the patie nt to re duc e the psyc hiatris t’s liability. Tomfohr v. The Mayo Foundati on , 450 N.W .2d 121 ( Minn. 19 90); see also McNam ara v. Honeyman , 546 N.E .2d 139 ( Mass . 1989); Cowan v. Doering , 545 A.2d 159 ( N.J. 1988). These cas es, w hile an alogo us to a deg ree, a re no t pers uas ive be cau se th ey invo lve co mp ariso n of fa ult betw een a plain tiff an d a de fend ant a nd no t, as h ere, a defe nda nt an d a th ird pa rty. -13- The plaintiffs’ argument is tw ofold: a psychiatrist’s

liability should not

be reduced by the occurrence of a foreseeable act he had the duty t o prevent; 7 and as a matter of practice and polic y, the negligent act

of a tortfeasor should not be compared to the intentional act of another tortfeasor. The defendant maintains that comparison is proper because it limits his liability to his percentage of fault in causing harm to the plaintiff.

In McIntyre v. Balenti ne , we adopted a modified form of comp arative fault under which a plaintiff w hose negligence is les

s than that of a defendant may recover damages in an amount reduced in proportion to the percentage of the plaintiff’s own negligence. 833 S.W.2d at 57. Based on notions of fairness and justice, we abolished the outdated doctrine of contributor y negligence and y

et stressed that “

a parti cular d efendant [is] li able only for th e percentage of a plaintiff’s damages occasioned by that defe ndant’s negligence.” Id . at 58. Moreover, to provide guidance in future cases, we said that a defendant is permitted to show that a non- party caused or contri buted to the damages for which the plaintiff seeks r ecovery. Id

.

Since McIntyre , we have cla rified th e distinc tion bet ween comp arative negligence and comparative fault . The former is the “measure of the plaintif f’s negligence in percentage terms used for the purpose of reducin g the plaintiff’s recovery from the defendant.” The latter is defined as “those principles which encompass the determination of how to apportion damage recover y among multiple or joint tortfeasor s according to the percent age of fault attributed to-14- those actors after reduction for the plaintiff ’s percentage of negligence.” Owens v. Truckstops of America , 915 S.W.2d 420, 42 5 n. 7 (Tenn. 1996).

Accordingly, in det

ermining comparative fault , we have considered c ases in which the negligence of a tortfeasor was compared with the negligenc e of other tortfeasors. Volz v. Ledes , 895 S.W.2d 677 (Tenn. 1995); Bervoets v. Harde Ralls Pontiac-Old, Inc. , 891 S.W.2d 905 (Te nn. 1994). We have also considered the question of compar ing the negligence of a defendant with the strict liability

of third-party defendants. Owens v. Truckstops of America , 915 S.W.2d at 431-33. This case presents our first opportunity to determine w hether the negligent act of a defendant shoul d be compared with the intenti onal act of another in determining compar ative fault.

Other jurisdictions hav

e addressed the issue. In Veazey v. Elmwo od Plantation Assoc., Ltd. , 650 So.2d 712 (La. 1994), the plaintiff was sexually assaulted by an intruder and filed a negligence acti on against her apartment complex for failing to maintain adequate security; the defendant apartment complex, in turn, defended on the bas is of the intentional act by the assailant. The Louisiana Supreme Court decli ned to compare the negligent act of the defendant with the intentional ac t of the third party primar ily because it believ

ed the negligent defendant should not be allowed to reduce its fault by relying o n an intentional act it had the duty to prevent. Id . at 718. It also express ed several public policy concerns that supported its conclusion: that comparison would reduce the plaintiff’s recovery because juries will likely allocate most if not all fault to the intentional actor; that allocating fault to the i ntentional party may reduce the incentive for the negligent actor to act with due care; and that comparison is impractical because intentional and negli gent torts are different “not only in degree but in kind, and the social condemnation attache d to it.” Id . at8 Florida courts, i n reaching t he same conclusion as a matter of statut

ory construction, have echoed these publ ic poli cy concerns: “ Reducing the respon sibil ity of a negli gent tort

feasor by allow ing th at tort feas or to p lace the b lam e ent irely or la rgely o n the inten tiona l wron gdo er wo uld serve a s a disinc entive for th e negligen t tortfeaso r to me et its duty to pro vide reas onable c are to prevent intentional harm from oc curring.” W al-M art St ores , Inc. v . McD ona ld , 676 So.2d 12, 22 (Fla. App . 1 Dist. 199 6), aff’d , So.2d (Fla.)(199 7 W L 7462 90). Slawson v. Fast Food Enterpri ses , 671 So.2d 255 (Fla. App. 4 Dist. 1996). -15- 719, quoting, Prosser § 65 at 462. See also Marceaux v. Gibbs , 680 So.2d 1189 (La. App. 1996), aff’d , 699 So.2d 10 65 (La. 1998) (f ollowing Veazey). 8

In another sexual assault case, Kansas S tate Ban k & Trust C o. v. Specialized Transportation Services, Inc. , 819 P.2d 587 (Kan. 1991), the parents of a child who was sexually assaulted by a school bus driver filed a negligence suit against the school and the bus company. The Kansas Sup reme Court held that a negligent defendant should not be permitted to reduce its liability by intentional acts they had a duty to prevent.

The Kansas Supreme Court followe d its holding in Gould v. Taco Bell , 722 P.2d 511 (Kan. 1986), in whi ch it said the question of compar ing negligent and intentional acts depends on “th e nature of the duty owed in each instance.” In Gould , an assailant physically and verbally abused the plaintiff in a restaurant in full view of the restaurant’s managers. The court held that the restauran t’s negligent failure to maint ain secur ity under t he facts of the ca se should not have been compared with the intenti onal conduct of the assailant. 722 P.2d at 513.

A similar approach was suggested by the New Jersey Supreme Court in Blazovic v. Andrich , 590 A.2d 222 (N.J. 1991). Ther e the jury was permi

tted to compare the negligence of a r estaurant owner in faili ng to maintain adequate lighting and security in the parking l ot with the intentional ac t of a patron who attacked the plaintiff. While the court upheld the c omparison, it recogniz

ed that apportionment of fault between tortfeasor s may be precluded “w hen the duty of-16- one encompassed the obligation to prevent the specif ic misconduct of the other.” It distinguished the facts befor e it on the basis that “the ev ents that allegedly took place in the parking lot

neither were sufficiently foreseeable nor bore an adequat e causal relati onship t

o [the neglige nt defend ant’s] alleged fault to justify the imposition on [the defendant] of the enti re responsibility for the resultant injury.” Id . at 233; compare Gould , 722 P.2d at 511-13.

Other courts take a different v iew. In Reichert v. Alter, 875 P.2d 379 (N.M. 1992), a bar patron was killed when as saulted by another customer.The bar owners were s ued for failing to provide adequate security, and th e bar owners relied on the i ntentional act of the third party to reduce their liabili

ty. The court held that the bar owner may reduce his liability by the percentage of fault attributable to a third party. They reasoned that this principle was most consistent with the rejection of joint and several liability in comparative fault cases and that each individual tortfeasor should be held respo nsible only for his or her percentage of fault. Id. at 381. See also Barth v. Coleman , 878 P.2d 319 (N.M. 1994)(fo llowing Reichert ).

Likewise, in Weidenfuller v. Star & Garter , 2 Cal. Rptr.2d 14 (Cal . App. 4 Dist. 1991), an assault v ictim sued a bar owner for failing to have adequate lighting and security. The jury alloca ted 75 percent of the fault to the assail ant. On appeal, the court said that the argument that negligent acts should not be compared with intentional acts “violate[d] the common sense notio n that a more culpable party should bear the financial burden caused by its intention al act.” Id

. at 16. See also Martin by and through Martin v. United Stat es , 984 F.2d 1033 (9th Cir. 1993) (f ollowing Weidenfuller ); Natseway v. Ci ty of Tempe , 909 P.2d 441 (Ariz. App. 1995).-17- Accordi ngly, the conc

ern in c ases tha t compar e the neg ligenc

e of a defendant with the intentional ac t of a third party is not burdening the negligent tortfeasor with liability in excess of his or her fault; conversely, the primary concern in those cases that do not compare is that the plainti ff not be penalized by allowing the negligent party to us e the intentional act it had a d uty to prevent to reduce its liabilit

y.

In our view, the conduc t of a negligent defendant should not be compared with the intentional conduct of another in determining comp arative fault where the intentional conduct is the foreseeable risk created by the negligent tortfeasor. As other courts have recognized, comparison presents practical difficulties in allocating fault between n egligent and intentional acts, because negligent and intentional torts are different i n degree, in kind, and in s ociety’s view

of the relative culpabilit

y of each act. Such comparison also reduces the negligent person’s incentive to c

omply with the applic

able duty of care. Moreov er, while a negligent defendant may, of cour se, raise a third party

’s intentional act to refute elements of the plaintiff’s negligence claim such as du ty and causation, fairness dictates that it should not be permitted to rely upon the for eseeable harm it had a duty to prevent so as t

o reduce its liability

.
Our holding also co mports with the pri nciples underlyin g McIntyre . The plaintiff here was not negl igent. On the other hand, the de fendant was negligent, and his breach of care led to the plaintiff’s injuries. Thus, the defendant’s liability to the pla intiff is linked t o his degre e of fau lt as requi red by McIntyre , and he should not be permitted to reduce his liability by relying on the occur

rence of the foreseeable risk of harm he had a duty to prevent. As one commentator has written: “the McIntrye principle of holdi ng the tor tfeaso r liable f or only his o wn percentage of fault is not abrogated by nonapportionment when the nature of the9 We do not reach the issues of whether, and u nder what cir cumstances, a negli gent defend ant m ay be entitled to contribution or indem nity from th e intentiona l actor. See Restatement of Resti tution , §§ 94 and 97. -18- tortfeasor’s breach is that he created the risk of the second tortfeasor’s [intentional] act.” Entman, The Nonparty Tortfeasor , 23 Mem. St. U. L. Rev. 105, 107 (1992). 9

Accordingly, w

e conclude that the lower courts incorrectly determined that the negligence of the defendant should have been compared with the intentional act of the defendant’s patient. In this case , however, the error was harmless in that the jury appor tioned 1 00 perce nt of the fault to the def endant. Thus, we remand the case to the trial c ourt for entry of a judgment c onsistent with the jury’s verdict

.

AUTHORITY TO REALLOCA TE FAULT The defendant moved for a new trial,and the trial court, after independently weighi ng the evidence, grant ed a new trial because it disapproved of the jury’s failure to al locate some percentage of fault to the patient who had intentionally injured

the plaintiff.

The plaintiffs argued that the tri al court had the authority to reallocate the percentage of fault instead of granting a new trial, i n the same manner as it can suggest an additur or r emittitur. The defendant maintains that a new trial was the only a ppropria te remed y because allocati on of fa ult lies wit hin the e xclusive province o f the jur y.

As the thirteenth juror, the trial court must grant a new trial if the verdict is contrary to the weight of the evidence. Tenn. R. Civ. P. 59.06. If the trial court approves of the jury’s verdict with the exception of the amount of damages, it-19- may suggest an adjustment to the verdict. If the plai ntiff does not consent to a decreased award (remittitur), or the defendant does not co nsent to an increased award (additur), the t rial court must grant a new trial. Tenn. Code Ann.§ 20-10- 101 & 102. The purpose is to allow the trial court to revise and correct errors relating to the siz

e of a jury’s verdic

t “without the costly

and time-consuming process occasioned by the granting of a new trial.” See Thrailkill v. Patter son , 879 S.W.2d 836 (Te nn. 1994).

Although we have not addresse d the exac t issue, o ther juris dictions have held that the mechanisms of additur/rem ittitur do not apply to alter the jury’s allocation of comparative l iability. In Rowlands v. Sig nal Const. Co. , 549 So.2d 1380 (Fla. 1989), the Flori da Supreme Court rejected the use of remittitur to correct the jury’s

assignment of comparative fault because the “apportioning o f liability is a matter peculiarly within the province of the jury.” The court concluded:
Since liability i s inextricably bo und up with the apportionment of damages under the doctrine of compar ative negligence, this matter must be left to the jury. When th e percentages of liability are contrary to the manifest weight of the evidence, the trial court must treat this defect as an error in the finding of liability itself. The only remedy is to order a new trial on all issues affected by the error.
549 So.2d at 1382-83; see also Arkermanis v. Sea-Land Service, Inc. , 688 F.2d 898 (2d Cir. 1982)(“re mittitur a limited exc eption to jury fact finding”); State v. Kaatz , 572 P.2d 775 (Alaska 1977) (“ apportionment of negligence is part of the liability phase of a case, not the damages phase”).

Reaching a different result, the Rhode Island Supreme Court, i n Cotrona v. Johnson & W ales College , 501 A.2d 728 (R.I. 1985), sai d that “the mechanisms of remittitur and additu r shall be available in the future to trial10 Our holdin g doe s not prec lude t he tria l cour t from reallo catin g com para tive fa ult pursuant

to an appr

opriat e motion t

o alte r or amend fol lowin g a bench t rial . Tenn. R. Civ. P. 59.02. -20- justices not only to r

eassess an erroneous damage aw ard but also to correct a jury’s misapportionment of liability as it may relate to comparative negligence.” In the co urt’s view, t hese mea ns would “p revent th e burden some cos ts, delays and harassments that accompany r e-litigation of the same is sues while at the same time assuring the litigants substantial justice.” Id . at 733-34.

In Tennessee, our cases have s pecifically limited the statutory procedures of remittitur and additur to cor rection of damages and not liabi lity. See , e.g. , Burlison v. Rose , 701 S.W.2d 609 (Tenn. 1985)(remittitur is not proper, and a new trial must be gr

anted, when the trial judge disagrees with the jury on questions of fact other than the amount of damages); Spence v. Allstate Ins. C o. , 883 S.W.2d 586, 594 (Tenn. 1994) (suggestion for a dditur applies to damages). Thus, the trial court corr ectly determined that it l acked the authority to reapportion the comparative fault in its role as thirteenth juror. 10

Our opinion in Wright v. City of Knoxville , 898 S.W.2d 177 (Te nn. 1995), cited by both parties, does not require a different concl usion. Wright was based on our appellate court standar d of review of factual findings made by the trial court in non-jury cas

es: “review of findings of fact by the trial court in civil actions shall be de novo upon the record of the trial c ourt, acc ompanie d by a presumption of the correctness of the finding, unless the preponderanc e of the evidence is otherwi se.” Tenn. R. App. P. 13(d). By comparison, the standar d of review gover

ning jury findings of fact in a civil action i s completely different. Those findings of fact may be set asi de only if there is no materi al evidence to support the verdict. Id . Thus, Wright does not allow the tri al court to reallocate fault between the parties in a jury case in its role as thirteenth juror.-21- CONCLUSION We conclude that the defendant psychiatrist ow ed a duty of care to the plaintiff nurse because he knew or should have known th at his patient posed an

un re as on ab le

ri sk of ha rm to a for es ee ab le , r

ea di ly id en ti fi ab le

th ir d p ar ty . We also conclude that the low er courts erred in rul ing that the defendant psychiatrist’s neg ligence should be compared w ith the intentional conduct of the non-party patient in allocating fault. We consider this error harmless because the jury allocated 100 per cent of the fault to the negligent defendant psychiatrist. Finally, although not

applicable here, in vi ew of our result we hav e determined that the trial court may not reallocate the comparativ e fault after weighing th e evidence as the thirteenth juror, but must instead gr ant a new trial.

Accordingly, the j udgment of the Court of Appeals is r eversed in part and affirmed in part, and the case is r emanded to the trial court for entr y of judgment on the jury’s verd ict. The costs of appeal are tax ed to the defendant/appellee, for which execution shall issu e if nece ssary.

________________________________ RILEY ANDERSON, CHIEF JUSTICE

CONCUR: Drowota, Reid, and Holder, JJ. Birch, J., Not Partici pating