§15.8 Allocation of Fault to an Unknown Party Generally

The Case: Brown v. Wal-Mart Discount Cities , 12 S.W.3d 785 (Tenn. 2000).

The Basic Facts: Plaintiff was injured after slipping on ice and water spilled on floor in defendant's store. The defendant contended that the jury should be permitted to consider the fault of the unidentified tortfeasor who was responsible for spilling the ice and water.

The Bottom Line:

• "We granted the application for permission to appeal in this slip and fall case to decide the issue of whether the defendant can attribute fault to an unidentified, or 'phantom,' tortfeasor." 12 S.W.3d at 785.

• "Accordingly, in providing that a plaintiff should either amend the complaint or institute a separate suit against the 'person' alleged as a comparative tortfeasor in defendant's answer, Tenn. Code Ann. § 20-1-119 contemplates that the plaintiff will actually know the identity of the alleged individual or entity. See Ridings, 914 S.W.2d at 82 (stating that this section 'contemplates that those persons to whom fault may be attributed are limited to those against whom liability for the plaintiff's damages may be asserted.'). Contrary to the conclusion of the Court of Appeals, clear and convincing evidence of the existence of a phantom tortfeasor is not sufficient identification for purposes of pleading and serving process. In our view, unless the nonparty is identified sufficiently to allow the plaintiff to plead and serve process on such person pursuant to Tenn. Code Ann. § 20-1-119, the trial court should not permit the attribution of fault to the nonparty." Id. at 788.

• "As the New Jersey court recognized, a defendant has a substantial interest in finding and naming all potential tortfeasors in order to diminish its percentage of fault. In our view, to allow a defendant to attribute fault to an unidentified nonparty would not only diminish a defendant's incentive to identify additional tortfeasors, cf. George, 931 S.W.2d at 521-22, but also would effectively impose a burden on the plaintiff to "defend" the unidentified nonparty." Id. at 789.

• "We conclude that a 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, even if the defendant establishes the nonparty's existence by clear and convincing evidence." Id.

Other Sources of Note: Resor v. Graves, 108 F.Supp.2d 929 (E. D. Tenn. 2000) (declining to extend Brown to uninsured motorist claims, noting that in uninsured motorist actions, there is an entity - the insurer - which stands in place of the alleged nonparty tortfeasor, and can be identified, served with process, and represented in court, and can, if the jury so finds, be responsible for the portion of the unidentified phantom tortfeasor's percentage of fault); Breeding v. Edwards, 62 S.W.3d 170, 178 (Tenn. Ct. App. 2001) (also holding that Brown does not extend to uninsured motorist suits, "as the instant case presents a situation where the unknown motorist's fault can lead to the entry of a judgment, Brown does not prevent the defendants in this litigation from attempting to have fault allocated to the phantom driver").

Recent Cases: Jones v. Shelby County Div. of Corrections , No. W2007-00198-COA-R3-CV, 2008 WL 366151 (Tenn. Ct. App. Feb. 12, 2008) (finding evidence did not preponderate in favor of defendant's assertion that unknown third parties caused accident).