                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                               MARCH 22, 2011 Session

  BELLSOUTH TELECOMMUNICATIONS, INC. d/b/a AT&T (TN) v.
SHUNDRA Y. YOUNG and MAUREEN F. KINSELLA

               Direct Appeal from the Circuit Court for Shelby County
                   No. CT-001271-08     Karen R. Williams, Judge


                 No. W2010-01825-COA-R3-CV - Filed June 21, 2011


Plaintiff sued Defendants for damages arising from a motor vehicle accident. The trial court
struck, from Defendants’ answers, allegations regarding the comparative fault of an
unidentified nonparty. However, the trial court allowed references to such nonparty at trial,
and the jury assigned no fault to Defendants. Finding no error in the trial court’s allowance,
we affirm the judgment of the trial court.


  Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed

A LAN E.H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and J. S TEVEN S TAFFORD, J., joined.

Mark B. Reagan, Thomas A. Sager, Memphis, Tennessee, for the appellant, Bellsouth
Telecommunications, Inc., d/b/a AT&T (TN)

Murry J. Card, Memphis, Tennessee, for the appellee, Shundra Y. Young

Melanie M. Stewart, Matthew S. Russell, Germantown, TN, for the appellee, Maureen F.
Kinsella
                                          OPINION

                           I.   F ACTS & P ROCEDURAL H ISTORY

        This case arises out of a motor vehicle accident on October 26, 2006 near the
intersection of Mendenhall Road and Sanderlin Avenue in Shelby County, Tennessee.
Mendenhall Road runs north and south with two lanes in each direction, plus a turning lane
at the Sanderlin Avenue intersection. On the date of the accident, Defendants Maureen F.
Kinsella and Shundra Y. Young proceeded southward on Mendenhall Road–Ms. Kinsella in
the left lane and Ms. Young in the right lane. According to the testimony presented at trial,
a white SUV abruptly left its position in the turning lane, entered Ms. Kinsella’s lane, and
forced her to partially swerve into Ms. Young’s lane. Ms. Young then swerved to avoid Ms.
Kinsella’s vehicle and collided with a cross-connect box owned by Plaintiff Bellsouth
Telecommunications, Inc. d/b/a AT&T (“Bellsouth”). No contact was made among the
vehicles. The driver of the white SUV did not stop, and has not been identified.

       On August 27, 2007, Bellsouth filed suit against Ms. Young in the Shelby County
General Sessions Court for $9,221.48. A judgment apparently was entered against Ms.
Young for this amount, and she appealed to the Shelby County Circuit Court. Ms. Young
subsequently filed a “Motion to Dismiss or in the Alternative Motion for a More Definite
Statement.” In its response, Bellsouth incorporated a complaint in which it asserted counts
of negligence and trespass against Ms. Young. In her answer, Ms. Young alleged the
comparative fault of Ms. Kinsella, claiming that she “was confronted with a sudden
emergency not of her own making when . . . [Ms. Kinsella] negligently veered into [Ms.
Young’s] proper lane of travel[.]” Additionally, she alleged the comparative fault of the
unknown driver of the white SUV. Based on Ms. Young’s answer, Bellsouth amended its
complaint to name Ms. Kinsella as a defendant. Like Ms. Young, Ms. Kinsella answered by
alleging the comparative fault of the unidentified driver of the white SUV.

       Bellsouth moved to strike from their answers, defendants’ averments regarding the
white SUV, as well as Ms. Kinsella’s allegations that “she was faced with a sudden
emergency,” and that “this accident was unavoidable.” Based on the defendants’ failure to
sufficiently identify the driver of the white SUV, the trial court granted Bellsouth’s motion,
and struck “the portion[s] of Defendants’ Answers which seek to assign fault to an unknown
non-party tortfeasor[.]”

       Bellsouth then filed a motion in limine seeking an order excluding “any testimony or
reference to [an] unidentified third-party tort-feasor in the trial of this matter[.]” Following
a hearing, the trial court denied Bellsouth’s motion, allowing “the fact of [the white SUV to]
be brought to the attention of the jury so that they may weigh it with other facts[.]” However,

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the trial court stated that “[t]he jury will be advised that they cannot attribute fault to this
vehicle, that they may only attribute fault to the two defendants in this case.”

        A jury trial concluded on May 19, 2010, with the jury assigning no fault to either Ms.
Young or Ms. Kinsella. Judgment was entered on May 27, 2010. Bellsouth subsequently
filed a motion for a new trial, arguing that the trial court erred in allowing the defendants to
reference the white SUV at trial. The trial court denied Bellsouth’s motion, and Bellsouth
timely appealed.


                                   II.     I SSUE P RESENTED

       Bellsouth presents the following issue for review, restated as follows:

1.     Whether the trial court erred in allowing defendants to reference, at trial, an
       unidentified third-party tortfeasor.

For the following reasons, we affirm the judgment of the trial court.

                                         III.   D ISCUSSION

       On appeal, Bellsouth contends that the trial court, in allowing the defendants to
reference the driver of the white SUV at trial, violated the rule regarding phantom tortfeasors
set forth in Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn. 2000). The
admissibility of evidence at trial is within the sound discretion of the trial court, and we will
not overturn a trial court’s decision to admit or exclude evidence without finding a clear
abuse of discretion on the part of the trial judge. Otis v. Cambridge Mut. Fire Ins. Co., 850
S.W.2d 439, 442-43 (Tenn. 1992). We review a trial court’s conclusions of law under a de
novo standard upon the record with no presumption of correctness. Union Carbide Corp.
v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993) (citing Estate of Adkins v. White Consol.
Indus., Inc., 788 S.W.2d 815, 817 (Tenn. Ct. App. 1989)).

        In Brown, a child was injured in a Wal-Mart store when he slipped on ice and water
that had been spilled on the floor. 12 S.W.3d at 785. The plaintiff sued Wal-Mart, and the
jury assigned 30% of the fault to Wal-Mart and 70% of the fault to an “unknown person[,]”
whom Wal-Mart claimed had left a cup of ice on the floor. Id. at 786. The plaintiff moved
for a new trial, arguing that the jury should not have been allowed to consider the fault of the
unidentified party. Id. The trial court agreed that the plaintiff could not recover from the
“unknown person[,]” because “no one knows who to sue.” Id. Accordingly, it overruled the



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motion for a new trial but ordered the total judgment to remain intact, effectively assigning
100% of the fault to Wal-Mart. Id.

       This Court affirmed the trial court, holding that “‘[s]ince the phantom tortfeasor
defense can be easily abused, we think the original defendant should be required to prove the
existence of a third party whose fault contributed to the plaintiff’s injuries by clear and
convincing evidence.’” Id. (quoting Brown v. Wal-Mart Discount Cities, No. 01A01-9705-
CV-00217, 1998 WL 44958, at *7 (Tenn. Ct. App. Feb. 6, 1998)). Because Wal-Mart failed
to do so, we concluded that “‘the trial judge correctly attributed all the fault to the original
defendant.’” Id. (quoting Brown, 1998 WL 44958, at *7).

        The Supreme Court, however, modified our judgment, holding that unless a
comparative tortfeasor is sufficiently identified, fault may not be attributed to him,
notwithstanding clear and convincing evidence of his existence. Id. at 789. The Court
reasoned that Tennessee Code Annotated section 20-1-119, which allows a plaintiff, when
a defendant’s answer identifies an additional tortfeasor, to “‘[a]mend the complaint to add
the person as a defendant’” or “‘[i]nstitute a separate action against that person[,]’”
“contemplates that the plaintiff will actually know the identity of the alleged individual or
entity.” Id. at 788 (quoting Tenn. Code Ann. §§ 20-1-119) (emphasis added). The Court
explained that although a mere description of an additional tortfeasor is sufficient during the
pleading stage, “when pre-trial discovery fails to identify the ‘described’ comparative
tortfeasor alleged in the defendant’s answer” such that the plaintiff could plead and serve
process on such person, “the defendant should not be allowed to argue, and the trier of fact
should not be permitted to make a determination, that a percentage of fault should be
attributed to the unidentified nonparty.” Id. At 787-88. Allowing otherwise, the court
concluded, would reduce a defendant’s incentive to find and name additional tortfeasors, and
it would “effectively impose a burden on the plaintiff to ‘defend’ the unidentified party.” Id.
at 789.

        However, following the Brown decision, the Supreme Court considered the case of
Carroll v. Whitney, 29 S.W.3d 14 (Tenn. 2000). In Carroll, the plaintiffs, following the
death of their daughter, brought a medical malpractice action against multiple defendants,
including two resident physicians. Carroll, 29 S.W.3d at 15-16. The residents were
ultimately dismissed from the suit based on their immunity as state employees, and a cause
of action was filed against the State of Tennessee in the Claims Commission for their actions.
Id. at 16.

        During the trial, the remaining defendants referred to the claim against the State and
they argued that the residents caused the decedent’s death. Id. The trial judge instructed the
jury to apportion fault among the defendants, the residents, and the decedent’s mother. Id.

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The jury apportioned 70% fault to one resident, 30% fault to the other resident, and 0% fault
to the defendants and the decedent’s mother, and a judgment was entered consistent with the
jury verdict. Id. On appeal, this Court reversed the judgment of the trial court and concluded
that because the residents were immune from suit, fault should not have been apportioned
to them. Id.

        The Supreme Court, however, reversed this Court, finding no error by the trial court
in allowing the immune parties to appear on the jury verdict form, stating that Tennessee was
“join[ing] the vast majority of comparative fault jurisdictions that broadly permit allocation
of fault to all persons involved in an injury-causing event.” Id. at 15, 21 (footnote omitted).
This standard, the Court announced, “is generally applicable in comparative fault cases.” 1
Id. at 19.

       The Carroll Court began its analysis by discussing the adoption of modified
comparative fault in McIntyre v. Ballentine, 833 S.W.2d 52 (Tenn. 1992). Under the
comparative fault system, a defendant is responsible only for the percentage of damages
caused by his negligence, thus achieving a “tighter fit between liability and fault.” Carroll,
29 S.W.3d at 16 (citing McIntyre, 833 S.W.3d at 58). In adopting comparative fault, the
Court also adopted a nonparty defense and “implictly rejected the minority position
permitting allocation of fault only to parties before the court.” Id. at 17 n.5 (citations
omitted). The McIntyre Court stated:

       [F]airness and efficiency require that defendants called upon to answer
       allegations in negligence be permitted to allege, as an affirmative defense, that
       a nonparty caused or contributed to the injury or damage for which recovery
       is sought. In cases where such a defense is raised, the trial court shall instruct
       the jury to assign this non-party the percentage of total negligence for which
       he is responsible. However, in order for a plaintiff to recover a judgment
       against such additional person, the plaintiff must have made a timely
       amendment to his complaint and caused process to be served on such
       additional person. Thereafter, the additional party will be required to answer
       the amended complaint.

Id. (quoting McIntyre, 833 S.W.2d at 58). “[T]he Court did not require that a cause of action
be available before a jury could apportion fault to nonparties.” Id. Instead, as explained in
Carroll, “[a] plaintiff’s ability to bring a cause of action was only important–to the extent
that it mattered at all in the Court’s analysis–in determining whether the plaintiff could
recover damages, not whether a jury could apportion fault to a non-party. Id. The McIntyre

       1
           As discussed below, this rule does not apply to workers’ compensation cases.

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Court offered guidance with regard to implementing comparative fault, but it “explicitly left
the treatment of nonparty tortfeasors to another day and an ‘appropriate controversy.’” Id.
(quoting McIntyre, 833 S.W.3d at 60).

        Such controversy was found in Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 80
(Tenn. 1996), in which the Court considered whether the defendants could assert the
contributory negligence of the plaintiff’s employer when suit could not be brought against
the employer due to the exclusive remedy provisions of the Workers’ Compensation Law.
Id. The Court reasoned that because the employer could not be made a party to the plaintiff’s
suit, fault could not be attributed to it. Id. (citing Ridings, 914 S.W.2d at 81-82). The
Court’s conclusion was purportedly supported by “‘[t]he rationale of McIntyre [which]
postulates that fault may be attributed only to those persons against whom the plaintiff has
a cause of action in tort.’” Id. at 18 (quoting Ridings, 914 S.W.2d at 81).

        The Ridings holding was challenged in Snyder v. LTG Lufttechnische GmbH, 955
S.W.2d 252 (Tenn. 1997), where a defendant in a negligence suit sought, again, to introduce
evidence that the plaintiff’s immune employer proximately caused or contributed to the
plaintiff’s injury. Id. (citing Snyder, 914 S.W.2d at 252). The Court disallowed the
evidence, relying upon its statement in Ridings that “‘a plaintiff’s right to recover on
allegations of negligence . . . is determined without reference to the [immune nonparty’s]
conduct.’” Id. (quoting Ridings, 914 S.W.2d at 84). Snyder “affirmed that Ridings was good
law and that it stood for the proposition that a defendant could not introduce evidence that
the plaintiff’s employer proximately caused or contributed to a plaintiff’s injury.” Id.
However, the Snyder Court “expressed concern that not allowing [evidence of the immune
employer’s conduct] would make discussion of the case nearly impossible, with the result
that ‘the jury would not hear evidence of the true facts . . . but, [would] be asked to determine
fault and hence liability for damages.’” Id. (quoting Snyder, 955 S.W.2d at 256). Thus, it
held that a jury could consider “any evidence relevant to the incident giving rise to the
plaintiff’s injury” in determining whether the plaintiff had established “but for” causation.2
Id. (citing Snyder, 955 S.W.2d at 257).

        As we stated above, the Carroll Court found that the trial court did not err in allowing
fault to be apportioned against the non-party resident physicians. Id. at 15. In doing so it did
not overrule Ridings and Snyder, but it limited their application to workers’ compensation




        2
         The Court cautioned the trial court to instruct the jury that evidence of the nonparty tortfeasor could
not be considered for purposes of proximate causation, but it acknowledged that the “practical effect of
Snyder was to invite trial courts to depart from the rule in Ridings.” Carroll, 29 S.W.3d at 18.

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cases.3 Id. at 19. The Carroll Court stated that “[a] careful reading of McIntyre . . . suggests
that neither the holding of the case nor its underlying rationale limits the attribution of fault
only to persons against whom the plaintiff has a cause of action in tort.” Id. Instead, the
Court reasoned that McIntyre “simply examined a plaintiff’s ability to recover damages from
a nonparty, and our holding was limited accordingly.” Id. (citing McIntyre, 833 S.W.2d at
60). The Court explained that its decision to “depart from Ridings and Snyder” was
prompted, at least partially, by the fairness rationale underlying McIntyre. Id. at 20. The
“fair and tight fit” between fault and liability is lost, it reasoned, “when some participants to
an act of negligence are excluded from the apportionment of fault.” Id.

                Pursuant to Snyder, under the present system of fault allocation, a jury
        is permitted to hear all evidence relevant to the injury-causing event. Yet the
        jury is not permitted to allocate fault to some of the participants, even though
        those participants may have contributed to the injury. Given these
        circumstances, the likelihood is great that the jury will allocate to a defendant
        fault that properly lies elsewhere. See Kirby Bldg. Sys. v. Mineral
        Explorations, Co., 704 P.2d 1266, 1272-73 (Wyo. 1985) (“Logic dictates that,
        if the negligence of an actor who is not a party is not included in the
        comparative-negligence calculation, the percentage of negligence of
        defendants who are parties may be inflated . . . .”). This result would hardly
        promote the policy of fairness that prompted this Court to adopt comparative
        fault. Compare Estate of Hunter v. General Motors Corp., 729 So.2d 1264,
        1273 (Miss. 1999) (“It would be patently unfair in many cases to require a
        defendant to be ‘dragged into court’ for the malfeasance of another and to
        thereupon forbid the defendant from establishing that fault should properly lie
        elsewhere.”).

Id. Furthermore, the Court reasoned, that excluding non-party alleged tortfeasors “from the
universe of persons and entities to whom fault can be allocated has the effect of reviving
joint and several liability[,]” which was discarded in McIntyre in order to “shift[] to plaintiffs
the risk that no recovery could be obtained due to the presence of judgment-proof
tortfeasors.” Id.

      The Carroll Court rejected the plaintiff’s argument that defendants would abuse a rule
allowing the allocation of fault to immune non-parties, noting that “defendants are not


        3
          The Court expressly stated that in workers’ compensation cases, “a jury may still allocate fault to
other tortfeasors against whom a plaintiff, for any reason, could not recover.” Carroll, 29 S.W.3d at 19. For
example, a jury is free to allocate fault to a nonparty against whom the statute of limitations has run. Id. at
19 n.6.

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permitted to shrug off blame with a causal ‘I didn’t do it; she did.’” Id. at 21. Instead,
“because the nonparty defense is an affirmative defense, a jury can apportion fault to a
nonparty only after it is convinced that the defendant’s burden of establishing that a nonparty
caused or contributed to the plaintiff’s injury has been met. Thus, defendants are not
permitted to casually shift blame to nonparties.” Id.

        In the instant case, the jury was not officially asked to apportion fault to the
unidentified driver of the white SUV. That is, the unidentified driver was not listed on the
jury verdict form.4 However, Bellsouth maintains that because the jury refused to allocate
fault to the defendants, and because “it is inconceivable to think that 100% of the fault for
this accident would be attributed to Bellsouth[,]” the jury must have “effectively allocated
fault” to the unidentified driver. In support of its contention that the jury could not have
apportioned 100% fault to Bellsouth, Bellsouth cites trial testimony that the cross-connect
box damaged by Ms. Young had remained undamaged at its current location for twenty-six
years prior to the accident.

       The defendants, however, contend that because the unidentified driver of the SUV
was not listed on the jury verdict form, fault was not allocated to him in violation of any rule
prohibiting such inclusion. Instead, they argue that the jury’s finding of no fault against the
defendants evidences its conclusion that either Bellsouth was 100% at fault, or that none of
the parties was at fault due to the existence of a sudden emergency. In support of their
contention that the jury may have found Bellsouth at fault, the defendants cite testimony from
multiple witnesses that Bellsouth’s cross-connect box protruded into the street, and that Ms.
Young’s vehicle made contact with the box without ever leaving her traffic lane. 5 They
further argue that evidence regarding the white SUV was appropriately introduced, not to
show that the SUV caused the accident, but to show that it caused a sudden emergency to
which the defendants responded reasonably.
       In the instant case, it is unclear whether the jury, in assigning 0% fault to the
defendants, effectively apportioned fault to Bellsouth, the unidentified driver of the white
SUV, or to no one at all. Based on the testimony of three witnesses regarding the existence
of the white SUV, we find that the jury could have found that Ms. Kinsella met her burden
of proving its contribution to the accident. Furthermore, because Carroll “broadly permit[s]
allocation of fault to all persons involved in an injury-causing event[,]” 29 S.W.3d at 21

        4
         It appears that Ms. Young, Ms. Kinsella, and Bellsouth were listed on the jury verdict form.
Because the jury found the defendants 0% at fault, it apparently did not address Bellsouth’s fault. The trial
court instructed the jury as follows: “The parties to whom you may assign fault are Defendant Kinsella,
Defendant Young, Plaintiff [Bellsouth].”
        5
          However, a Bellsouth claim investigator testified that the cross-connect box did not protrude into
the street.

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(emphasis added), we find that the jury could properly consider fault of the unidentified
driver, and therefore, that the trial court did not err in allowing references to such driver.
Accordingly, the judgment of the trial court is affirmed.


                                    IV.   C ONCLUSION

       For the aforementioned reasons, we affirm the judgment of the trial court. Costs of
this appeal are taxed to Appellant, Bellsouth Telecommunications, Inc. d/b/a AT&T, and its
surety, for which execution may issue if necessary.



                                                   ALAN E. HIGHERS, P.J., W.S.




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