§15.21 Fifty Percent Rule

The Case: McIntyre v. Balentine , 833 S.W.2d 52 (Tenn. 1992)

The Basic Facts: "In the early morning darkness of November 2, 1986, Plaintiff Harry Douglas McIntyre and Defendant Clifford Balentine were involved in a motor vehicle accident resulting in severe injuries to Plaintiff … Both men had consumed alcohol the evening of the accident." 833 S.W.2d at 53.

The Bottom Line:

• "Two basic forms of comparative fault are utilized by 45 of our sister jurisdictions, these variants being commonly referred to as either 'pure' or 'modified.' In the 'pure' form^FN5, a plaintiff's damages are reduced in proportion to the percentage negligence attributed to him; for example, a plaintiff responsible for 90 percent of the negligence that caused his injuries nevertheless may recover 10 percent of his damages. In the 'modified' form^FN6, plaintiffs recover as in pure jurisdictions, but only if the plaintiff's negligence either (1) does not exceed ('50 percent' jurisdictions) or (2) is less than ('49 percent jurisdictions') the defendant's negligence. See generally [V. Schwartz, supra, at §§ 3.2, 3.5].

  FN5 The 13 states utilizing pure comparative fault are Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, Michigan, New Mexico, New York, Rhode Island, and Washington. See [V. Schwartz, supra, at § 2.1].
  
  FN6 The 21 states using the '50 percent' modified form: Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Texas, Vermont, Wisconsin, and Wyoming. The 9 states using the '49 percent' form: Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, North Dakota, Utah and West Virginia. Two states, Nebraska and South Dakota, use a slight-gross system of comparative fault. See [V. Schwartz, supra, at § 2.1]."

  833 S.W.2d at 57.
• "Although we conclude that the all-or-nothing rule of contributory negligence must be replaced, we nevertheless decline to abandon totally our fault-based tort system. 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. We therefore reject the pure form of comparative fault." Id.
• "We recognize that modified comparative fault systems have been criticized as merely shifting the arbitrary contributory negligence bar to a new ground. See, e.g., Li v. Yellow Cab Co., 532 P.2d 1226 (Ca. 1975)]. However, we feel the '49 percent rule' ameliorates the harshness of the common law rule while remaining compatible with a fault-based tort system. Accord Bradley v. Appalachian Power Co., [256 S.E.2d 879, 887 (W. Va. 1979)]. We therefore hold that so long as a plaintiff's negligence remains less than the defendant's negligence the plaintiff may recover; in such a case, plaintiff's damages are to be reduced in proportion to the percentage of the total negligence attributable to the plaintiff." Id.
• "In all trials where the issue of comparative fault is before a jury, the trial court shall instruct the jury on the effect of the jury's finding as to the percentage of negligence as between the plaintiff or plaintiffs and the defendant or defendants. Accord Colo.Rev. Stat. § 13-21-111.5(5) (1987). The attorneys for each party shall be allowed to argue how this instruction affects a plaintiff's ability to recover." Id.
• "[I]n cases of multiple tortfeasors, plaintiff will be entitled to recover so long as plaintiff's fault is less than the combined fault of all other tortfeasors." Id. at 58.

Recent Cases:

Martin v. Norfolk Southern Ry. Co. , 271 S.W.3d 76 (Tenn. 2008) (reversing trial court's determination that no reasonable jury could determine that plaintiff was less than fifty percent at fault finding plaintiff demonstrated genuine issues of material fact); Hocker v. State, No. E2008-02638-COA-R3-CV, 2009 WL 3518164 (Tenn. Ct. App. Oct. 30, 2009) (reversing Claims Commissioner's judgment that plaintiff was at least fifty percent at fault in negligent road design case); Freemon v. Logan's Roadhouse, Inc., No. M2007-01796-COA-R3-CV, 2009 WL 499471 (Tenn. Ct. App. Feb. 25, 2009) (reversing summary judgment in premises liability case finding that although existence of peanuts on restaurant floor may have been open and obvious where defendant encouraged patrons to discard peanut shells on the floor, that did not dictate finding that plaintiff was fifty percent or more at fault); Salyer v. McCurry, No. E2008-01017-COA-R3-CV, 2009 WL 211873 (Tenn. Ct. App. Jan. 29, 2009) (reversing summary judgment finding genuine issues of material fact as to degree of plaintiff's negligence); Crook v. Despeaux, No. W2007-00941-COA-R3-CV, 2008 WL 4936526 (Tenn. Ct. App. Nov. 19, 2008) (upholding summary judgment finding no reasonable jury could conclude plaintiff was less than fifty percent at fault); Sanders v. CB Richard Ellis, Inc., No. W2007-02805-COA-R3-CV, 2008 WL 4366124 (Tenn. Ct. App. Sept. 22, 2008) (upholding trial court's grant of summary judgment in premises liability case finding plaintiff was at least fifty percent at fault where plaintiff ignored open and obvious danger of icy parking lot when walking into bank, decided not to use drive-through window, and that a reasonable person would have avoided the risk); Westervelt v. State, No. M2006-00766-COA-R3-CV, 2007 WL 1159345 (Tenn. Ct. App. Apr. 18, 2007) perm. appeal denied (Sept. 17, 2007) (affirming decision of Claims Commission finding claimant to be 65% at fault which precluded an award of damages under McIntyre v. Ballentine ).

---