### IN THE SUPREME COURT OF TENNESSEE AT JACKSON May 24, 2000 Ses sion Heard at Nas hville
JEAN CAROLYN DOTSON v. AMANDA B. BLAKE, DAN BLAKE, AND THE ESTATE OF ELVIS C. MADD OX, SR., AND MARTIN M ANOR ASSOCIATES, LTD.
Appeal by permission from the Court of Appeals, Western Section

Circuit Court for Weakley County No. 2661, William B. Acree, Jr., Judge

No. W1998-00710-SC-R11-CV - Filed October 4, 2000

This is an appeal f

rom the Circuit Cour

t of Weakley

County, whic

h refused to perm

it the jury in a personal injury case to allocate fa ult to tortfeasors

who successfully

asserted a statu

te of repose defense. The Court of Appeals a ffirmed the tria

l court. We grant

ed review to dec

ide whether fau

lt may be attributed to tortfeasors who cann ot b e held liable because of a statute of repose. After examining the record, considering the arguments of the parties , and analy zing the applicable law,
we conclude that the courts below erred in not allowing fault to

be assigned to

the tortfeasors who successfully

asserte d a statute of repose to the claims against them. Accordingly, f or the reasons explained hereafter, the lower courts are reversed.
Tenn. R. App. P. 11; Judgment of Court of Appeals Reversed

F RANK F. D ROWOTA , III, J ., delivered the opinion of the court, in which A DOLPHO A. B IRCH , J R ., and W ILLI

AM M. B ARKER , JJ., joined. E. R ILEY ANDER SON , C.J., filed a dissenting opinion, and J ANICE M. H OLDER , J., filed a concurring opinion.

Marianna Williams and Anthony

Williams, Dyer

sburg, Tenness

ee, for the Def

endant-Appella

nt, Martin Manor Associates, Ltd. Donald E. Parish, Huntingdon, Tennessee, for the Plaintiff-Appellee, Jean Carolyn Dotson

OPINION

On December 16, 1994, the plaintiff, Jean Dotson, was riding as a passenger in a car driven by Elvis Maddox. The car in which Dotson was riding was struck by a car driven by Amanda

Blake and owned by Da

n Blake. The ac

cident occurre

d at the in tersection of Harrison Road and the driveway of an apartment complex owned by the defendant, Martin Manor Associates, I nc. (“Martin1 Maddox was injured in the accident and later died from his injuries.


### -2- Manor”). The Blake vehicle was traveling north on Harrison Road when it struck the Dotson vehicle
as the D otson vehicle was traveling south attempting a left turn across the northbound lane of Harrison Road into the apartment co mplex. The drivewa

y to the apar

tment complex was loc

ated just
over a hill which apparently restricted the sight distance of those traveling north on Harrison Road.

The plaintiff, who suffered severe injuries in the accident, filed a negligence suit against the Blakes and the Es

tate of El vis Maddox. 1 The City of Martin was later named as a defendant after the Blakes filed an

answer all eging that the negligence of the City caused or contributed to the plaintiff’s injuries by maintaining a public road on a blind hill considering the speed and volume of traffic. Martin Ma

nor, the e ntity th at owned t

he apartm ent comple

x, was also added as a defendant. Martin Manor, in turn, ass

e rted that its architectural firm, Hnedek, Bobo, Gooch and Associates (“Architect”), negligently designed the dr

iveway on H

arrison Road, and

that it s contrac tor, S. Webster Haining & Company (“Contractor”), negligently

constructed it. Th

e plaintiff subseq

uently amended her complaint to add the Architect and Contractor as defendants. Ho wever, tho se defendants

were later dismis sed from the case because the plaintiff’s claim against them was barred
as a matter

of law pursuant to a statute of repose. SeeTenn. Code Ann. § 28-3-202 (imposing a fouryear statute of repose on claims for deficiencies in the design, planning, supervision, or construction of improvements to real property).

Prior to trial, Martin Mano r file d a motion requesti ng that the trial c

ourt allow the jury

to attribute fault to the Architect and Contractor, who were no longer part ies. The trial court denied the motion. Martin Manor also submitted a jury verdict form which included the attribution of fau

lt to the Architect a nd Contrac tor. The for m was not us ed at trial, and the jud ge refused to charge the jury regarding a

ttribution of fault

to nonparties. The judge did, however, give an instruction that the actions of the Architect and Contractor could beconsidered in determining whether the plaintiff met her burden of establishing Martin Manor’s liability, but that fault could not be assessed against the Architect or Contractor because the claims against them were bar red by the ap

plicable statute of repose. The jury found in favor of the plaintiff and assigned 51 percent of the fault to Martin Manor and 49 percent to the City of Martin. Neither driver i nvolved in the acc

ident was assesse

d any fault. The plaintiff was awarded a judgment of $225,000. After filing a notice of

appeal, the City of Martin paid its portion of the judgment and was dismissed from the case. Similarly, the Blakes settled wi th the plain

tiff after trial and were dismissed from the case. Th us, Martin Manor was the only party to pursue the case in the Court of Appeals and is the only defendant before this Court. Relying

on this Court’s decisions in Ridings v. Ralph M. Parsons Co. , 914 S.W.2d 79 (Tenn. 1996) and Snyder v. Ltg. Lufttechnische GmbH , 955 S.W.2d 252 (Tenn. 1997), the Court of

Appeals held tha t fault could not be attributed to tortfeasors who cannot be held liable due to a statut e o f2 In Ridings and Snyder we held that fault could not be assessed against an immune employer in cases wh ere an injured worker sought damages from a third party arising from a work-rel ate d inj ury.

3 The rati onale for the exception was to prevent the employer’s right of subrog ation from effectively

precluding the employee f rom recovering

damages from ot

her tortfeasor

s. Carroll at ___.

4 We gave the example of an employee who brings suit against two tortfeasors, one of whom successfully

asserts a statute of limitatio

ns defense. We poi

nted out that under

the rule adopted in Carroll , fault

could be assigned to this nonparty, even though the plaintiff could not recover damages from the nonparty. Carroll at n. 6.

5 The running of a sta

tute of repose

nullifies both the remedy and the right and has the effect of barring a plaintiff’s claim as a matter of law. Wyatt v. A-Best Prod. Co., Inc. , 924 S.W.2d 98, 102 (Tenn. Ct. App. 1995). In fact, a sta tute of repose ca

n bar a claim eve

n before it

accrues. Id . For this reason, the Court

of Appeals in the p

resent case

found that the prot

ection afforde

d by a statute of repose is functionally indistinguishable from the protection afforded by an

immunity defense like that asserted in Ridings and Snyder

. 

### -3- repose. 2 Thus, the intermed iate court affir

med the trial cour

t’s decision refu

sin g to allow the jury to assess fault against the Architect and Contractor. We then granted review to decide whe ther a trier of fact should be pe

rmitted to consider

the fault of tortf

easors who cann

ot be held liable be

cause of a statute of repose.

After the Court

of Appeals released its decision, this Court decided Carroll v. Whitney , ___ S.W.3d ___ (Tenn. 2000). Carroll was a medical malpractice case in which a defendant physician sought to have the jury assess fault against phy sicians who were immune f rom suit because they were employees

of the State. As in the present case, the Court of Appeals in Carroll relied on Ridings and Snyder and concluded that the jury should no t have been perm

itted to apportion f

ault to the immune physicians.

We reversed, and joined the majority of jurisdictions that permit the allocation of

fault to all tortfeasors, even immune ones, who cause or contribute to the plaintiff’s injuries

. Spe cif

ica lly, we concluded that “when a defendant raises the nonparty defense in a negligence action, a trier of fact may allocate fault to immune nonparties.” Id. at ___. The adoption of this rul e in Carroll

was driven by a desire

to remain true to

the gu iding principle of comparative fault, which is to link liability with fault and thereby

achieve the fairest result possible. Id. at ___. Nonetheless, we carved out an exception for those cases like Ridings and Snyder involving plaintiffs injured on the job who seek damages from tortfeasors other than the plaintiff’s immune employer. 3 However, even in cases brought by employees

against third parties, fault can still be assessed against others against whom the employee could not recover “for any reason.” Id. at ___. 4

Cle arl y, the rule adopted in Carroll controls the present case where the question is whether fault may be assessed against tortfeasors who are effe ctively immune from liability because of a statute of repose. 5 In order to achieve the fairest result possible by linking liability with

fault, Martin

### -4-

Manor should have been permitted to argue that some

or all of the fault

should have been assessed against the Architect an

d Contractor. Othe

rwise, liability

might be imposed dispropo

rtionately t

o fault, a result plainly inconsistent with our comparative fault scheme. See Carroll at ___. Treating this case any differently

from Carroll

would require dr

awing difficult

and subtle distincti

ons, if not artificial ones, making for an unworkable standard in this important area of comparative fault. This we decline to do.

Accordin gly, we hold th at the trier of fact should be allowed to consider the fault of a tortfeasor who is protected from liability due to a statute of repose. The judgment of the Court of Appeals is reversed and the case rem anded for a new trial. Costs of this appeal are taxed to the plaintiff.

______________________________________ FRANK F. DROWOTA

, III , JUSTICE