                      IN THE SUPREME COURT OF TENNESSEE
                                  AT JACKSON
                               November 1999 Session


     JAMES CARROLL, ET AL. v. CAROLYN WHITNEY, M.D., ET AL.

              Appeal By Permission from the Court of Appeals, Western Section
                             Circuit Court for Shelby County
                           No. 68714 Janice M. Holder, Judge

                                __________________________

                     No. W1997-00246-SC-R11-CV - Filed October 4, 2000

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E. RILEY ANDERSON, C.J., dissenting.


        The majority departs from settled principles of law in holding that a jury may allocate fault
to an immune nonparty. In so doing, it refuses to apply and overrules the application in this case of
the Tennessee Supreme Court’s unanimous decision just four years ago in Ridings v. Ralph M.
Parsons Co., 914 S.W.2d 79 (Tenn. 1996), that a jury may not allocate fault to an immune nonparty
because the immune nonparty owes no duty to the plaintiff and therefore the plaintiff has no cause
of action against the immune nonparty.

        In my view, the Court of Appeals correctly applied Ridings in concluding that the trial court
erred by instructing the jury that it could assign fault to immune nonparties. I am also convinced that
the majority’s failure to adhere to the doctrine of stare decisis by failing to apply a decision released
only four years ago undermines the reliability and consistency of this Court’s decisions in the area of
comparative fault.

        I therefore dissent.


                                             ANALYSIS

       The majority asserts that Ridings is inconsistent with our decision in McIntyre. I do not
agree. Ridings is consistent with McIntyre and the principle that a party’s liability should be linked
to her or her degree of fault. In fact, Ridings was based directly on McIntyre and is neither
unworkable nor unfair to defendants.
         In McIntyre, we partially abandoned the doctrine of contributory negligence which barred any
recovery for damages and adopted a system of comparative fault under which a plaintiff may recover
damages for an injury provided that his or her own negligence in causing the injury is less than the
fault of the defendant. In such a case, the plaintiff’s recovery is to be reduced by the percentage of his
or her own negligence. Id. at 57.

        Our decision in McIntyre was a fundamental change in negligence law in Tennessee. It was
based on “considerations of fairness and consistency, as well as to avoid the inconsistent and often
harsh results to plaintiffs whose negligence was far less than that of a defendant or defendants.” Coln
v. City of Savannah, 966 S.W.2d 34, 40 (Tenn. 1998); see also Alcazar v. Hayes, 982 S.W.2d 845
(Tenn. 1998) (courts may determine public policy absent a constitutional or statutory declaration).

        Contrary to the majority’s depiction, McIntyre did not achieve the result of completely linking
a party’s liability with his or her degree of fault. We did not, for example, adopt a “pure” system of
comparative fault under which a plaintiff’s recovery is completely linked to his or her fault and under
which a plaintiff does not have to be less at fault than a defendant in order to recover. In fact we
specifically rejected the pure system in McIntyre. 833 S.W.2d at 57 (“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.”).
 Thus, a plaintiff who is equally at fault or even slightly more at fault than a defendant may not
recover.

         Accordingly, in adopting a modified system of comparative fault in McIntyre, we considered
matters of policy and fairness to both plaintiffs and defendants in a lawsuit. The effect of McIntyre’s
fairness formula allowed plaintiffs to recover when partly at fault, yet eliminated joint and several
liability so that the defendant was responsible only for its own fault. Under McIntyre, the plaintiff
now assumes the risk of an insolvent defendant and the risk that he or she may not receive full
compensation for damages.

        In Ridings, we held that a defendant could not assert as an affimative defense that the
plaintiff’s employer, a nonparty, caused or contributed to the injuries when the plaintiff did not have
a cause of action in tort against the employer.1 The majority now contends that this holding is
inconsistent with the adoption of a “nonparty” defense in McIntyre. This contention was unanimously
rejected in Ridings:

        The rationale of McIntyre postulates that fault may be attributed only to those persons
        against whom the plaintiff has a cause of action in tort. The designation ‘nonparty’
        used in McIntyre is not a term of art; it means ‘not a party.’ However, it is given a
        particular meaning by the decision in McIntyre, wherein the Court found that, upon
        a defendant’s allegation that a person not a party to the suit, a ‘nonparty,’ caused or
        contributed to the plaintiff’s injuries, the plaintiff, by amendment to the complaint and
        service of process, may make the ‘nonparty’ a ‘party’ that is answerable to the plaintiff


         1
                 The plaintiff’s action against the employer fell under the wo rkers compensation statutes.

                                                        -2-
        in actions for damages according to the Rules of Civil Procedure. Consequently only
        a nonparty against whom the plaintiff has a cause of action can be made a party. Since
        the plaintiff’s employer cannot be made a party to the plaintiff’s tort action for
        personal injuries sustained in the course and scope of his employment, the rationale
        of McIntyre, both as to principle and procedure, will not permit fault to be attributed
        to the plaintiff’s employer.”

Ridings, 914 S.W.2d at 81-82 (emphasis added). Accordingly, the majority’s view that Ridings is
inconsistent with McIntyre is unfounded.

        Just three years ago, we reaffirmed Ridings in Snyder v. LTG Luftechnishe GmbH, 955
S.W.2d 252 (Tenn. 1997), but clarified that a defendant is not prohibited from showing evidence that
an immune nonparty was the cause in fact of an injury. Moreover, we again rejected the arguments
that Ridings was unfair to defendants and inconsistent with McIntyre:

        There is no question that the Court in Ridings considered the ‘fairness’ arguments
        advanced here by the defendants and made a policy decision to leave immune
        [nonparties] out of the assessment of fault. We thus decline the defendants’ invitation
        to reverse Ridings or otherwise depart from the rule adopted in that decision.

955 S.W.2d at 256; see also Brown v. Walmart, 12 S.W.3d 785 (Tenn. 2000) (fault may not be
assigned to an unknown tortfeasor). These are now, however, the very same arguments the majority
accepts for refusing to apply Ridings.2

        In sum, our comparative fault decisions beginning with McIntyre have been guided by policy
and fairness concerns. As can be seen, Ridings was expressly based upon McIntyre. Nothing in
McIntyre or Ridings has changed – the “principle and procedure” remain the same. Only the Court
has changed, a majority of which has decided to adopt a different policy based on its view that
Ridings is now inconsistent with McIntyre and unfair to defendants because it does not fully link a
defendant’s liability with its degree of fault. I cannot agree with this 180-degree change in course.

      The majority supports its abrupt change of direction by asserting that Ridings has proven to
be unworkable in all but workers’ compensation cases and an impediment to appellate review. It

         2
                    The majority asserts that it is joining the “vast majority” of comparative fault jurisdictions which,
unlike Ridings, “broadly permit allocation of fault to all persons involved in an injury causing event.” It should be
pointed out, however, that several of the jurisdictions have taken this position through legislative acts and not
through the d evelopm ent of case law . E.g., Ariz. Rev. S tat. § 12-25 06A (1 998). Moreover, I note that a number of
other cases , including all states in the sixth federa l circuit, do not allo cate fault to all the p ersons invo lved. Bradford
v. Herzig , 638 A.2 d 608 (C onn. App . Ct. 1994 ); Payne Plumbing & Heating Co. v. Bob M cKiness Excavating &
Grading, 382 N .W.2d 156 (Io wa 1986 ); Baker v. Webb, 883 S.W .2d 898 (Ky. Ct. Ap p. 1994 ); Anderso n v. Harry’s
Army Surplus, Inc., 324 N .W.2d 96 (M ich. Ct. App . 1982); Adams v. Children’s Mercy Hospital, 848 S.W.2d 535
(Mo. A pp. 199 3), overruled on other grounds, 897 S.W .2d (M o. 1995 ); Eberly v. A-P Controls, Inc., 572 N.E.2d
633 (O hio 199 1); Ewen v. McLean Trucking Co., 689 P.2 d 1309 (Or. Ct. Ap p. 1984 ), reversed on other grounds,
706 P.2d 929 (O r. 1985). Thus, the principle in Ridings is not an isolated or unwork able view.

                                                              -3-
argues that the trial court’s instruction for the jury to assign fault to immune nonparties resulted in
a “fully informed” verdict that cannot effectively be reviewed. It also contends that under Ridings
a jury may act out of sympathy for the plaintiff and assign an undue percentage of fault to a defendant
because it is prevented from assigning fault to the immune nonparty. These concerns are misplaced
for several reasons.

        First, there is no question that the trial court’s instruction was erroneous and improper under
Ridings, which was decisional law at the time of trial. Even if one accepts the majority’s assertion
– which I do not – that the “error” enabled the jury to be more “fully informed” of the facts, it was
“not informed” of the law to be applied to those facts. Far from rendering the verdict harmless, the
verdict is inherently, legally flawed. Moreover, under Snyder, the jury is not precluded from hearing
the facts about the conduct of an immune nonparty for the purpose of considering the element of
causation.

         Next, unlike the majority, I am unwilling to presume that under Ridings a jury will disregard
its instructions and base its verdict solely upon sympathy for the plaintiff. The Supreme Court has
as a matter of institutional faith based its decisions on a presumption that juries are honest and
conscientious and will follow instructions given to them. E.g., State v. Williams, 977 S.W.2d 101,
106 (Tenn. 1998) (jury is presumed to have followed instructions). Under McIntyre, if a plaintiff is
not less at fault than a defendant, the plaintiff cannot recover. Nothing in Ridings changed this
fundamental procedure.

        The majority’s decision also fails to take into account the implications of immunity. The
decision to extend immunity to a person or entity, as in this case with state employees, is generally
a legislative determination that, in theory, benefits the public as a whole. In the context of litigation,
however, it creates a risk of loss that is borne by a plaintiff who cannot recover in tort from the
immune person or entity. In Ridings, we balanced the risk by holding that a defendant, similar to the
plaintiff, cannot assign fault to an immune nonparty. Without any new or intervening reason, the
majority has now completely reversed course and has placed the entire risk of loss on the plaintiff.
As one commentator has written, plaintiffs should not be punished “for society’s choice to render
certain persons immune from tort liability.” Cardi, Apportioning Responsibility to Immune
Nonparties: An Argument Based on Comparative Responsibility and the Proposed Restatement
(Third) of Torts, 82 Iowa L. Rev. 1293 (1997).3

        Finally, the majority’s decision violates the fundamental principle of stare decisis. This
principle, under which a court should depart from its prior decisions only upon rare and exceptional
occasions, is designed to achieve consistency in the law and to promote confidence and reliance on
the Court’s decisions. E.g., Barnes v. Walker, 234 S.W.2d 648 (Tenn. 1950). Accordingly, under
stare decisis, when a supreme court re-examines a prior holding it is required to ask whether related


          3
                    I would also observe that the majority has chosen the new course without briefing or consideration
 of other alternatives for addressing the risk of loss created by the presence of an immune nonparty, such as
 distributing the fault of an immune nonparty be tween the parties.

                                                         -4-
principles of law have so far developed that the old rule has been left no more than a remnant of
abandoned doctrine, whether facts have changed from those which furnished the justification for the
earlier decision so as to rob the old rule of its justification, whether the rule has been subject to the
kind of reliance that would lend hardships to the consequences of overruling it and add inequity to
the cost of repudiation, and finally, whether the rule has proven to be intolerable in defying practical
workability. See Patterson v. McLean Credit Union, 491 U.S. 164, 173, 109 S. Ct. 2363, 2370, 105
L.Ed.2d 132 (1989); United States v. Title Ins. & Trust Co., 265 U.S. 472, 486, 44 S. Ct. 621, 623,
68 L.Ed. 1110 (1924).

        When the stare decisis principle is applied in this case, the answer is clear – the Ridings rule
is alive and well and no related legal principles have in any sense developed so as to require its
abandonment. To the contrary, it has been a fundamental building block in the development of
comparative fault law. Nor have any facts changed since the adoption of McIntyre or Ridings which
would rob Ridings of its justification.4 Although the majority now limits Ridings to workers’
compensation cases, there was no such limitation or explanation in either Ridings or Snyder.
Moreover, this Court had previously cited to or discussed Ridings on several occasions without either
limiting the rule to workers’ compensation cases or indicating that the sole basis for the rule was an
employer’s right of subrogation. E.g.,Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn.
2000); Samuelson v. McMurtry, 962 S.W.2d 473 (Tenn. 1998); George v. Alexander, 931 S.W.2d
517 (Tenn. 1996). Accordingly, the majority’s claim that its new decision is consistent with the
doctrine of stare decisis is unconvincing.

        All of the people of Tennessee, its citizens and corporations, its bench and bar, have relied on
the rules laid down by McIntyre, Ridings, and their progeny, as have those who have made subsequent
laws and all have made choices in reliance on these principles. The rules have worked and will work
in practical terms and to repudiate them will cause serious inequity and hardship. Because neither
the facts nor the circumstances nor the surrounding legal principles have changed, this Court’s re-
examination of this case has no justification beyond a present doctrinal decision to reach a different
result from the unanimous Ridings Court. That is a grossly inadequate basis for overruling a prior
case and is a threat to the institutional consistency of the Supreme Court.



                                                  CONCLUSION




          4
                   Ridings is therefore in stark contrast to the cases cited by the majority in which the Court has
 departed from stare decisis . For example, in State v. Dominy, 6 S.W.3d 472 (Tenn. 1999), we overruled a rule that
 had proven to be unworkable for trial courts and unfair to both the State and defendants. In State v. Reeves, 916
 S.W.2d 909 (T enn. 1996), we overruled a rule that no longer was consistent with amended statutory law. In State v.
 Kendricks, 891 S.W .2d 597 (T enn. 1994), we o verruled a doctrine that was initiated in 184 8, had an explicitly sexist
 genesis, was unworkable and prejudicial to defendants. In State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992),
 we overruled a prior interpretation of law based specifically on the Tennessee Constitution.

                                                           -5-
        In McIntyre, this Court acted in the interest of sound policy and adopted a system of modified
comparative fault based on fairness to both plaintiffs and defendants. Our unanimous decision in
Ridings was expressly based on McIntyre. There is nothing in this case that demonstrates Ridings
was wrongly decided or should be abandoned in all but workers’ compensation cases. Although the
majority states that the motivation for its new decision is to achieve fairness by more closely linking
a party’s liability with his or her degree of fault, the majority’s discussion does not consider a “pure”
system of comparative fault. Instead, the majority’s failure to apply Ridings simply indicates that it
has opted for a different policy.

        The doctrine of stare decisis is one of “paramount importance” and the power of the Court
to overrule prior decisions should be used sparingly. Barnes v. Walker, 234 S.W.2d at 649. Because
I am convinced that the majority’s decision creates inconsistency in the law and undermines the
reliability of this Court’s decisions as an institution, I believe this is a classic example of when
adherence to stare decisis is appropriate. I therefore dissent.


                                               ____________________________________
                                               E. RILEY ANDERSON, CHIEF JUSTICE




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