§32.4 Impact of Gross Negligence on Comparative Fault Allocation

The Case: Conroy v. City of Dickson, 49 S.W.3d 868 (Tenn. Ct. App. 2001).

The Basic Facts: Plaintiff sued defendant after an automobile wreck involving a police car owned by defendant. Plaintiff argued that his conduct should not be compared with the police officer's conduct because the latter was grossly negligent.

The Bottom Line:

• "Gross negligence is a term that evolved out of the jurisprudence of contributory negligence as a way to avoid the harsh consequences of that doctrine. Under the purest form of contributory negligence, an injured plaintiff could not recover any damages from a negligent defendant, if the defendant could prove that the plaintiff himself was also guilty of negligence, however slight." 49 S.W.3d at 871.
• "Gross negligence provided an exception to this rule. If a plaintiff could prove that the defendant was guilty of a higher degree of negligence than his own, then the ordinary negligence of the plaintiff did not operate as a bar to recovery. Gross negligence has been defined as arising from 'a conscious neglect of duty or a callous indifference to consequences.' Thomason v. Wayne County, 611 S.W.2d 585 (Tenn. Ct. App.1980). Elsewhere, this court has said, '[g]ross negligence is not characterized by inadvertence. It is a negligent act done with utter unconcern for the safety of others, or one done with such a reckless disregard for the rights of others that a conscious indifference to consequences is implied in law.' Odum v. Haynes, 494 S.W.2d 795 (Tenn. Ct. App.1972)." Id.
• "One reason for instituting comparative fault in this state was for the simplification it offered. The proliferation of categories of conduct that required legal definition in order to mitigate the harsh effects of pure contributory negligence unnecessarily complicated the task of fixing liability, and resulted in legalistic hair-splitting and confusing jury instructions. As one commentator said,

  The continuum of fault from negligence to gross negligence to wanton or willful conduct to recklessness is highly malleable. In particular, the phrase 'gross negligence' has been characterized by the Tennessee Supreme Court as 'Nothing more than negligence with the addition of a vituperative epithet' ... [the] escalation of pejorative labels unnecessarily complicates some trials and heightens the probability of emotional pleas to the jury.' 873 C. Mutter, Moving to Comparative Negligence in an Era of Tort Reform: Decisions for Tennessee, 57 Tenn. L. Rev. 199, 211 (1990)."

  Id. at 872-73.
• "Although the Supreme Court did not explicitly declare the demise of gross negligence in McIntyre, we see no reason why negligent acts that might previously have been denominated as gross cannot be compared with other negligent acts, within the context of relative fault. In Eaton v. McLain, 891 S.W.2d 587 (Tenn.1994), the Supreme Court discussed the status of the doctrines that have been abolished by the adoption of comparative fault, and declared that while they no longer had any independent existence, their underlying principles, if relevant, could still be considered by the finder of fact in allocating fault." Id. at 873.
• "The court stated that,

  the percentage of fault assigned each party should be dependent upon all the circumstances of the case, including factors such as: (1) the relative closeness of the causal relationship between the conduct of the defendant and the injury to the plaintiff; (2) the reasonableness of the party's conduct in confronting a risk, such as whether the party knew of the risk, or should have known of it; (3) the extent to which the defendant failed to reasonably utilize an existing opportunity to avoid the injury to the plaintiff; (4) the existence of a sudden emergency requiring a hasty decision; (5) the significance of what the party was attempting to accomplish by the conduct, such as an attempt to save another's life; and (6) the party's particular capacities, such as age, maturity, training, education, and so forth. 891 S.W.2d at 592."

  Id.
• "It appears to us that the considerations underlying the doctrine of gross negligence have been largely subsumed within the second factor listed above, and that there is no reason, from the point of view of precedent or of policy, to make it an exception to the system of comparative fault. The appellant's argument is without merit." Id.

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