*1 517 rulеs, v. procedural Maisonet under the diction the termination of benefits Services, judicial N.J. petition Human 140 program. Department In her for AFDC of (1995); Develop review, requested attorney 214, fees Human she under A.2d 1209 657 Erie, Supreme Hearing Bd. Zoning 1988. The Massachusetts Section Inc. v. ment of of 675, plaintiff was to attor- Court held that entitled Township, 143 Pa.Cmwlth. Millcreek ney though (1991). court rested fees even lower 600 658 A.2d law, not but “en- its decision on federal persuades in us Nothing those cases tirely law Commonwealth.” allowing plain- conclusion retreat from our Welfare, Johnson v. Commissioner Public of attorney fees under Section 1988 tiff to seek 643 at 445. The court noted that N.E.2d judicial in review when petition an to vindi- Section 1988 “creates incentive wrongful from deni- petition relief seeks federally protected rights.... cate The fee law, al, rights, privi- state of under color of necessary equally useful incentive is by leges, the federal or immunities secured question whether the is secured we laws. For these reasons constitution and alone, law State law Federal well.” Chancery judgment of the Court affirm the Id. 445-46. also v. Commis- See Gaulin Appeals granting plaintiff and the Court of 1001, Welfare, 515 sioner Public 401 Mass. of 1988. attorney fees under Section (1987); Department 583 Stratos v. N.E.2d of Welfare, 439 Public 387 Mass. N.E.2d BIRCH, C.J., DROWOTA,ANDERSON (1982). 778 REID, JJ., concur. Likewise, and also context enforc- rights ing appeals from federal termi- benefits, Supreme AFDC
nation of Court joinder Nebraska has allowed the attorney claim Section 1988 fees with judicial review an administrative action. Department In Maldonado v. Nebraska Welfare,
Public 223 Neb. 391 N.W.2d (1986), ap- 105 state contended Faye GEORGE, Plaintiff- Ethel peal agency an from state was not action Appellant, authorizing under the award of Section 1983 attorney pursuant to 1988. fees Section Supreme disagreed up- Nebraska Court Phillip Wayne ALEXANDER, Clyde despite held fact the fee award Jones, M.D., R. Defendants- petition judicial review did not cite Sec- Appellees. tion 1983.3 Tennessee, Supreme Court We are aware that courts have ruled con at Nashville. trary we take and taken contrary in these cases. In some of the 7,Oct. 1996. rulings, plaintiffs sought under remedies Sec tion which to those 1983 were inconsistent review, Partners, judicial
available on Tatten County L.P. v. New Castle Bd. Assessment Review, (Del.Super.Ct.1993); 642 1251 A2d others, plaintiffs sought remedies state, Hardges v. De available Services, partment Mich.App. 201 Social (1993); N.W.2d 532 still others juris- interpretations of court turned on state attorney fees award for under Section 3. case is consistent In this the Maldonado party successful in enforc- Bloomingdale’s Ltd. a case in which the our decision in Mail Huddleston, 1992), (Term. specifi- rights party did even if the federal § cally plead 42 U.S.C. 1983. we held that a is entitled recover
OPINION
DROWOTA, Justice. ease, malpractice
In this
plain-
medical
tiff,
Faye George,
Ethel
appeals from the
Appeals’
judgment
Court of
affirmance of a
jury
based on a
verdict in
favor
dants,
Alexander,
Clyde Wayne
M.D. and
Jones,
Phillip
presents
R.
M.D. This ease
the following issue for our determination:
whether a defendant
in a
case
must, pursuant to Rule 8.03 of the Tennessee
Procedure, plead comparative
Rules of Civil
fault as an affirmative
if the
defense
defen-
dant wishes to introduce evidence that a
other than itself
injury. We conclude that the defendant is
required
affirmatively plead comparative
situation;
fault in such a
and because that
case,
was not
done
this
we reverse the
judgment
Court of Appeals.
FACTS AND PROCEDURAL HISTORY
In October 1989 the
was admitted
Hospital
gyne-
to West
Side
Nashville for
cological surgery.
prepare
In order to
Jones,
surgery,
Dr.
an anes-
thesiologist, began
spinal
to administer
anes-
thesia. As he tried to
a needle
insert
into
however,
her
for
purpose,
lower back
this
George allegedly experienced
Ms.
pain in her
right leg
pain.
Dr.
and told
Jones of this
Dr.
attempt-
Jones then withdrew the needle and
anesthesia;
ed twice
more
administer the
George allegedly experienced pain
but Ms.
Thereafter,
right
her
each
leg
time.
Alexander,
Jones
called
another anesthe-
siologist,
room to
him.
into the
assist
When
attempted
Dr. Alexander
to insert the nee-
dle,
allegedly
experienced
George
again
Ms.
pain.
eventually
The defendants
were suc-
anesthetizing
plaintiff;
cessful in
she
placed
position”
“lithotomy
surgery by nurses under
direction of
Jr.,
Daniell,
M.D.,
surgeon.
James
surgery.
Daniell then
out
carried
Weed, Hubbard,
Stephen Doughty,
R.
Ber-
Nashville,
ry Doughty,
Plaintiff-Appel-
&
Immediately
operation,
after
Ms.
lant.
George
extending
experienced pain
down her
Cantrell,
Dean,
foot;
Parker,
right
George
leg
Rose P.
A.
into her
she was unable to flex
Lawrence,
Dean, Nashville,
pain
pressure
&
Cantrell
foot and felt
when
applied
It
Defеndants-Appellees.
leg.
to her
has since
here,
thereoretieally possible
clear,
though it
undisputed
and it
become
George’s injuries
have been caused
damage to
different
could
Ms.
suffered
Ms.
anesthetic,
highly unlike-
during
operation.
spinal
a re-
it was
nerve
As
roots
injury,
possible
ly.
is unable
flex her
sult
she
With
*3
positioning
foot,
reflex,
proper
no
and Dr. Allen first stated that
right
right
has
ankle
crucial,
body during surgery
pain
patient’s
a
is
to have
and loss of sensation
continues
leg.
patient
properly
is
portions
ensuring
her
that
in her foot and
condition,
primary responsibility
a
positioned
she must wear
is the
Because of
Allen
performing
operation.
a
Dr.
surgeon
uses
brace and sometimes
crutches
wheelchair; moreover,
per-
improper positioning of
her condition is
testified that
injury”
body
a
manent.
could cause
“stretch
nerves,
injury
highly
a
is
but that
stretch
George brought
In
an
October
Ms.
actually positioned
unlikely
patient
if the
is
Alexander,
action
Doctors Jones and
correctly.
point,
to the latter
With
alleging
that their
administer-
ques-
as
Dr. Allen
follows when
testified
ing
proximately
spinal
anesthesia
caused
attorney:
by
plaintiffs
tioned
injuries. The
defendants answered
denying any negligence
re-
complaint,
Doctor,
you
opinion
Q:
have an
within
do
serving
certainty
to assert
defens-
degree
additional
a
of medical
reasonable
through
they
es as
became known
the discov-
positioning
George
improper
that
of Ms.
ery process. The
amended
defendants never
surgery she
the cause of
for this
had was
their answеr to include additional defenses.
leg?
damage to her
her nerve
Furthermore,
plaintiff propounded
inter-
plau-
be
my opinion
A:
that would
rogatories
asking
if it was
cause, yes
sible
sir.
injuries
that
their
had been
Q:
your opinion
a
So that would be
within
by
person.
caused
The defendants
certainty?
degree of medical
reasonable
they
responded
opinion
that
had no definitive
injuries.
as to
cause of
This
Yes,
A:
it would.
response
also
never amended.
Q:
your
you
opin-
have
it is
an
And
—do
took the
October
counsel
degree of medical
ion within a reasonable
Allen,
Vaughn
M.D.,
deposition of
the neuro-
doctor,
positioning
certainty,
improper
that
surgeon
George
had
Ms.
for her
who
treated
occur, normally
patient
would
injuries.
Dr.
deposition,
In the coursе of the
positioned
if the
v/as
not occur
George
that
explained
Allen
Ms.
had suffered
physi-
within
standard of care
separate
Dr.
two
nerve roots.
cians involved?
opinion
Allen
stated
in his
there
also
that
before, un-
I
testified
A: Yes. As
have
inju-
possible explanations
were
two
underlying
was some
anatomic
less there
(1)
occurred
a result of
ries:
that
as
George
I
reason
don’t believe Ms.
(2)
anesthetic;
spinal
they had
has,
accurate statement
that would
an
improper positioning
as a result of
occurred
as well.
during
possible
surgery. As to the first
Allen
Dr.
testified
because
small,
during
spinal
very
needle used
Allen
as
deposition
Later
testified
hitting
the likelihood
because
“lithotomy po-
follows when asked about
negli-
separate nerve roots with
needle
n
sition”:
injury
have
caused
gible, the
could not
Doctor,
Q:
assuming
properly
had a
someone
the anesthetic unless
...,
lithotomy position
do
“conjoined
positioned
con-
nerve
rare anatomic
root” —a
opinion
you
in a
within
reasonable
whereby two
are
dition
nerves
enclosed
certainty
per-
degree
single
discount-
of medical
protective sheath.
Allen
son,
in a
however,
positioned
if they
properly
his
possibility,
based on
ed this
have an
analysis
report
lithotomy position,
an MRI
would
myelogram
of a
Thus,
as
has?
that al-
such Ms.
scan.
Allen concluded
(cid:127)profoundly unlikely
A:
It
preceding pleading, party
would be
to a
shall set
proper
positioning
affirmatively
plain
forth
in short
one would
facts
up
compara-
end with
terms relied
...
a nеrve
constitute
(including
identity
descrip-
Q:
you
opinion
So would
have an
within a
alleged tortfeasors)
tion
”.
...
degree
certainty
reasonable
of medical
added.)
(Emphasis
“comparative
fault”
if,
you
opine,
this was
that —
language
July
was added to the rule in
injury,
you
stretch
have an
Commission,
Advisory
which ex-
degree
within a reasonable
of medical cer-
plained the amendment as follows:
tainty
improper
position-
there
‘Comparative fault’ is substituted for ‘con-
ing?
tributory negligence’
light McIntyre
A:
initially
Either
*4
positioning
Balentine,
(Tenn.1992).
v.
833
52
S.W.2d
injury
or as the
case went
stretch
in-
identify
Note
must
defendant
volving
push-
improper positioning such as
alleged
describe other
who
tortfeasors
ing against
legs or something
of that
fault,
should share
or else the defendant
nature,
my
yes.
answer would be
nоrmally
shifting,
would be barred from
to
blame
others at trial.
added).
(Emphasis
added.)
(Emphasis
subsequently
The defendants
filed a notice
plaintiff argues
depo-
The
because
deposition
intent to
offer the
of Dr. Allen
sition of
Allen was offered for the sole
plaintiff responded
filing
at trial. The
purpose
shifting
the blame
testimony, contending
motion to exclude the
away from the
onto Dr. Dan-
that, pursuant
8.03,
P.,
to Rule
Tenn. R. Civ.
surgeon primarily responsible
iell—the
duty
plead compara-
the defendants
had
to
positioning
required
8.03
—Rule
they
tive fault as an
if
affirmative defense
affirmatively plead
the defendants to
Dan-
person
wished to offer
evidence
support
as a
iell’s fault
defense. As
for this
injury,
had caused the
and that
defen-
argument,
also cites the follow-
plead.
dants
failed to so
The trial court
ing language
McIntyre:
from
motion,
plaintiff’s
denied the
video-
[Fjairness
require
efficiency
that de-
tape
deposition
played
Dr. Allen’s
to
upon
allegations
called
answer
fendants
to
Moreover,
jury.
the defendants’ counsel
permitted
allege,
to
as an
deposition
cap
closing
to
used
off his
defense,
nonparty
affirmative
that a
argument, contending that:
“[Radies
injury
damage
or contributed to the
gentlemen,
proof
looked at demonstrates
recovery
sought.
which
is
cases where
conclusively through Dr. Allen
the li-
raised,
such a defense is
the trial court
thotomy position may very well
jury
assign
shall instruct the
to
this non-
here,
way
was caused
party the percentage
negli-
of the total
surgery position.
you very
Thank
much.”
gence
responsible
for which he is
...
jury
The
verdict in
returned a
favor
McIntyre,
prejudice
plaintiff.
plea
general
ries was admissible under a
Court finds
denial. This
that such evidence
accept
We decline to
this “harmless
only
when
de-
admissible
the affirmative
argument.
prophylactic
error”
Rule 8.03 is a
fense of
pled.
has been
rule of
strictly
ad
must be
*6
to if it
purposes.
hered
is to achieve
It
its
THE CASE
designed
appellate
to obviate the
need
courts
look into
for actual
the record
plaintiff,
Faye George,
The
Ethel
ad-
was
prejudice each time a
hospital
defendant introduces mitted to
in
a
Nashville October
proof at trial of
unpleaded
an
defense. To
surgery
performed by
1989 for
to be
Dr.
accеpt
Daniell,
the
argument
defendants’
on this
a gynecologist.
prepara-
James
point
clearly-stated
would invite evasion of a
surgery,
George
posi-
tion for
Ms.
the
procedure
of
equita
rule
that is crucial to the
side
tioned on her
for the administration of
compara
ble and efficient
administration of
spinal
by
anesthesia
the defendant Dr.
system.
Jones,
fault
Phillip
anesthesiologist.
R.
When
Dr.
the
Jones inserted
needle into her low-
Because the defendants contravened Rule
back,
patient reported
sharp pain
er
the
by attempting
to shift the blame to
leg.
her
After several unsuccessful
person
affirmatively
at trial without
attempts
complete
procedure,
the
each
comparative fault,
pleading
judgment
the
of
by
accоmpanied
reports
pain,
Dr. Jones
reversed,
lower
hereby
the
courts is
and the
requested the assistance of another anesthe-
proceedings
remanded for
further
con-
siologist,
Clyde Wayne
defendant Dr.
the
opinion.
with
sistent
this
Despite
patient’s complaints
Alexander.
inserted,
pain
time the
each
needle was
BIRCH, C.J., and
and
ANDERSON
procedure
accomplished
by
the de-
WHITE, JJ., concur.
fendants.
REID, J., separate concurring opinion.
Daniell,
direction of
surgical
Under the
Dr.
placed
REID, Justice,
nurses
on her back with
concurring.
legs
by stirrups,
supported
agree
by
I
with the result
reached
lithotomy position,
known
a modified
majority.
impor-
resolution of the
during
surgery.
where she remained
principles
comparative
tant
and
rules
operation,
pleading
prеsented
plaintiff experi-
and evidence
After the
view,
requires,
my
precise
extending
pain
right leg
a more
down her
and
ease
enced
time,
injuries
opera-
foot,
signif-
during the
she
sustained
and since that
has
deposition,
icantly
permanently impaired.
and
The
tion.
In the course of
proof
explained
Ms.
had suffered
shows that the
condition
Allen
that
roots,
by
damage to
roots.
injuries
separate
severe
two nerve
to two
nerve
and that
caused
plausible expla-
in his
there were
plaintiff
suit
In October
filed this
“injection
injuries:
that an
nations
malpractice
medical
the defen-
injury”
had occurred
administration
dants,
plaintiff
Alexander.
Jones and
The
defendants;
by
spinal
anesthesia
did not sue
Daniell.
had occurred as the result
complaint alleges that
The
the defendants’
patient by Dr.
positioning of the
spinal
anesthesia was below
administration
during surgery. Dr.
also testi-
Daniell
Allen
applicable
and was
standard
care
“extremely
unlikely”
it
fied that was
injuries
proximate cause of the
sustained.
injuries
by
caused
were
complaint alleges specifically that “the
dants,
.likely diagnosis”
“the most
injuries
plaintifPs
leg
and foot
injuries
caused dur-
would be
were
by
caused
trauma to nerve roots
were
surgery
by
Dr. Daniell.
by
during the ad-
structures
trial,
a notice
Prior to
the defendants filed
of spinal
ministration
anesthesia.” The com-
depo-
into
of intent
introduce
evidence
plaint
charges
injuries
further
“the
plaintiff responded
sition of
Allen.
sustained
testimony,
by filing a motion to exclude the
proximately
contending
re-
defendants were
fault” of thе defendants.
plead
affir-
quired
fault as an
com-
The defendants filed answers to the
presenting
mative defense before
evidence
plaint
They
on December
1990.
admitted
that another
caused the
they performed
de-
trial,
day
first
On the
of the
performance
that their
nied
was below the
limine, asking the
filed a second motion applicable
pro-
standard of care exercised
prohibit
court to
exclude
practicing in the
of an-
specialty
fessionals
any questioning
any cause of
with
esthesiology in
Nashville
similar commu-
plaintiff’s
other than the defen-
they complied
nities and stated that
injection
spinal
dants’
anesthesia.
specifical-
standard of care. The defendants
*7
plaintiff
the
that:
the second motion
asserted
ly
allegatiоn
plaintiff’s
the
denied
the
injuries
procedure per-
were
the
caused
grounds
plaintiff
this motion
As
formed,
they specifically
the alle-
denied
show the Court that Defendants have
injuries
gation
plaintiff’s
proxi-
an
an affirma-
raised
alternative
as
mately
they
caused
the manner in which
the
defense in their
to either
answers
answers,
performed
procedure.
the
In their
com-
original complaint or
amended
right
to assert
“reserve[d]
any alterna-
plaint and have not set forth
may
they
additional affirmative defenses as
Rule 26
tive cause in their
statement
through discovery
appear
and further inves-
interrog-
expert testimony or in
answer
tigation.”
atory
interrogatories
eight of the
number
many
propounded on each defendant
plaintiff propounded
The
to the defendants
ago.
months
interrogatory eliciting
on
an
their
plaintiff’s
had been
whether
trial court
the motions to exclude
The
denied
defendants,
by persons
plead-
other than the
deposition.
Dr. Allen’s
No additional
responded
they
parties,
by any
of the
and on
which
defendants
was filed
opinion of
cause or
had “no definitive
the case
to trial
November
went
plaintiff’s complaints.”
complaint
and the
plaintiff’s
causes
amended
defendants’ answers.
1993, approximately
one month
October
defendants,
trial,
jury
went to
The
found for
before
case
Allen,
judgment accordingly.
deposition
court
Vaughan
took the
of Dr.
trial
entered
admis-
neurosurgeon
Appeals
found that the
had treated the
The Court
who
(Tenn.
error,
tyre
Balentine,
sion of Dr. Allen’s
was not
v.
“Comparative causation fault” substituted for facie that, therefore, “contributory light negligence” apply. of McIn- Rule 8.03 does not pleading identify po- 1. A defendant's Failure of the defendant to preclude an affirmative defense under Tenn. R. Civ. P. tential tortfeasors would attribu- *8 8.03, triggers plaintiff's opportunity persons limited against tion of fault such and would 20-1-119(a) (1994) § under being Tenn.Code Ann. to result in the defendant liable for all any party alleged make tortfeasor a other damages except those attributable to the fault Co., Ralph Ridings suit. In M. Parsons 914 plaintiff. of the of the Failure to as- 79, (Tenn. 1996), S.W.2d plained the Court 83-84 ex against persons sert such its cause of action interplay between Tenn. R. Civ. P. pursuant alleged by who are the defendant to § Tenn.Code Ann. 20-1-119: Section caused or contribut- 20-1-119 to have injury damage, preclude ed to the or would not 8.03, P., Civ. Rule Tenn. R. insures that the against persons the assessment of fault such rights parties subject of the liabilities to preclude damages but the award of would suit be action. Section resolved in one 20-1- persons. such provides procedure joining addi- present defendants, Since case the defendants in did not tional it does not address the Daniell, allege person, that Dr. caused or allege effect of a defendant’s failure to that a injuries, plaintiff's or contributed to the the issue nonparty plain- contributed to the caused or joined any of could have plaintiff's whether the tiff’s or failure to make § pursuant third persons defendants 20-1-119 is those defendants. Rule 8.03 presented requires "comparative (including See Owens v. Truck that this case. America, (Tenn. stops identity description any alleged or of other 915 S.W.2d 1996). tortfeasors)” pled as an be affirmative defense. testimony scan. admissibility analysis myelogram an MRI of Dr. Allen’s although theoretically the issues depends its relevance to the He concluded by have by pleadings. See Tenn. R. Evid. could plaintiff’s raised anesthesia, unlikely. charges professional highly it was complaint spinal 402. The deny malpractice. The defendants do cause, possible regard the other With of the a cause of essential elements of proper positioning Dr. Allen testified that the negligence duty based of care and action — body during the sur- patient’s of a described Cooley, 806 See McZClenahan v. crucial, ensuring gery and that is (Tenn.1991). The denials properly positioned primarily is patient is put other stated the answer issue the surgeon performing the responsibility of the duty, three essential elements —breach having the operation. Allen testified that Dr. fact, proximate legal causation cau during body improper position patient’s in an words, de sation. other injury” surgery could a “stretch they negligent, nied that their and, conversely, that a nerves stretch was procedure administration of the medical highly unlikely patient positioned if is care; they applicable below the standard of correctly. point, to this With denied was an antecedent Allen testified as follows: injuries; cause of Doctor, Q: you opinion within do procedure performed denied that certainty degree of medical reasonable proximate legal them was cause of the George positioning of Ms. plaintiffs injuries. pleadings Their do not the cause of surgery for this she charge plain cause of the leg? damage her nerve to her injuries.were tiffs the acts or omissions persons. my opinion A: that would be the most рlausible yes, sir. any legal Evidence is- relevant of the pleadings sues raised admissible. your Q: within So would Evidence, Tennessee Rules de- certainty? degree reasonable of medical having fines relevant evidence as “evidence Yes, A: it would. any tendency to make the existence Q: your you opin- itAnd have an consequence that is fact the determina- —do degree medical ion within a reasonable probable of the tion action more or less doctor, certainty, improper positioning probable than it would be evi- without the occur, normally patient of the would not Consequently, testimony dence.” Dr. Allen’s positioned not occur if the if it was admissible tends to establish physi- of care within the standard degree of care exercised the dеfendants cians involved? relationship, any, or the causal if between procedure performed by before, un- A: Yes. I have testified As then, plaintiffs injuries. question, underlying anatomic less there was some testimony is—what does Dr. Allen’s tend I Ms. reason which don’t believe establish? has, that be an accurate statement as well. to two alter- Allen’s related (not joint) native common or causes —the ad- added). (Emphasis spinal by the ministration of the anesthesia respond- deposition, Later Allen pa- positioning defendants and the *9 question lithotomy position: to a about ed body surgery by As tient’s Dr. Daniell. first, Doctor, injury assuming properly Q: someone is to the Dr. Allen testified that ..., lithotomy do positioned not have two nerves could been injection within you opinion have an a reasonable of anesthesia unless the certainty “conjoined per- degree a nerve rare ana- of medical root” —a son, positioned in a properly are if tomical in which nerves condition two injury lithotomy position, single protective would have an enclosed sheath. his as Ms. has? possibility, Allen discounted this based on such A: It profoundly unlikely would be otherwise actionable causes of harm.” proper with positioning Thus, that one would cause, proximate legal or con- up end injury. with a nerve cerns a legal determination of whether lia- Q: you So would opinion bility have an imposed within a should be where cause in degree reasonable certainty medical fact has been established. if, you opine, this was caused that — (quoting Jr., Id. at Joseph King, H. injury, you stretch have an Causation, Valuation and Chance in Person- degree within a reasonable of medical cer- Injury Involving al Torts Preexisting Condi- tainty improper there position- was Consequences, tions and Future 90 Yale L.J. ing? (1981)). Therefore, 1355 NSF. 7
A: Either
positioning initially
applicable
8.03 is
where the defendant con-
or as
injury
the case went on stretch
from tends that the act or omission of another was
involving improper positioning such as
proximate
injury.
cause of the
pushing against
legs
something
or
reading
This
of Rule 8.03 is consistent with
nature,
my
yes.
answer would be
20-l-119(e),
§
Tenn.Code Ann.
pro-
which
added).
(Emphasis
vides:
testimony
This
tends to establish
con-
This section shall not
any
limit the
clusions—that
spi-
the administration of the
allege
an answer or amend-
nal anesthesia was not the cause in faсt of
ed answer that a
not a
plaintiffs injuries,
position-
and that the
suit
caused or contributed to the
plaintiffs body by
of the
Dr. Daniell for
recovery.
which the
seeks
surgery was the
cause
fact of the
injuries. Consequently,
provides
practical
Section 20-1-119
Allen’s testimo-
ny
implementation
regarding
compara-
of the
benefits of
defendants’ administration
fault,
relevant,
and,
requires special
of the
pleading,
there-
fore,
However,
protects
and it also
testimony
admissible.
his
the defendants’
re-
garding
dispute all
positioning
liability
the essentials of
plaintiffs body
of the
under
plea
surgery
general
plea
was not relevant
denial. Under a
issue
general denial,
and, therefore,
made
pleadings,
affirmatively
and without
fault,
pleading comparative
admissible. His
relevant, and,
are entitled to
positioning
would have
show at trial that the act or
(as
therefore, admissible,
omission of another
if
was the cause in fact
the defendants had
cause)
pled
distinguished
proximate
from
affirmative defense of
plaintiffs injury.
fault.
pleading
without
affirmatively,
attempt
the defendants cannot
requires
Rule 8.03
that the defendant iden
“fault,” “blame,”
“liability”
to shift the
tify or
alleged
describe other
It
tortfeasors.
person.
order for the defen-
applicable
where a defendant undertakes
fault,
part
dants to shift all or
to shift the “blame” to other “tortfeasors”
affirmatively plead
neg-
defendants must
who “should share fault.” Tenn. R.
P.
Civ.
another,
ligence
words, identify
or in other
Advisory
Commission Comments [1993].
might
describe other tortfeasors who
allegations
proximate
Such
raise the issue of
proximately
found to
plain-
caused the
Kilpatrick
Bryant,
cause.
868 S.W.2
d
injuries.
Ridings Ralph
tiffs
See
M. Par-
(Tenn.1993),
explained
the Court
the dif
Co.,
sons
“Causation majority opinion) ignores is a the rela- concept different tionship from that of pleading between and evidence. cause. They acknowledge Causation refers to the cause and in their brief effect relationship between the surgical position tortious Allen testified “that the conduct and the negligent doctrine of and that the sur- *10 proximate encompasses geon the whole himself deviated from the standard of panoply may deny liability They of rules that care.” continue: “But this was not the
527 if those injuries. requires 8.03 defendants; theory they must be set upon, never, time, are to be relied facts contended the.sur plain pleadings “short argument defeats forth geon negligent.” This Otherwise, testimony regarding “theory” or “con The terms.” the defendants’ case. pleadi parties is found facts is not admissible. those tention” pleading, a ngs.2 modem Under comparative fault never argument that the facts required to set out detail not stated the above pled be overlooks defense; claim or upon which it bases its significant prac- well as of evidence as rule however, no pleadings must afford fair Tennessee, sepa- where the tical factors. and the claim or defense is tice of what the of more rate, negligent acts indeрendent 2A upon which it rests. See James grounds combined to cause tortfeasor have than one Moore, al., Federal Practice et Moore’s W. joint injury, liability is not single, indivisible 1995) Gibson, ¶ (2d Conley v. (citing ed. de- Consequently, where the and several.3 102-08, 99, 2 41, 47-48, 78 355 S.Ct. U.S. fault, it plead not fendant does (1957)). defense An affirmative L.Ed.2d 80 percent of the liable for 100 will be held plain that is not within the pleads a matter of all damages unless it is absolved plaintiffs ¶ prima 8.27[1]. facie case. Id. at tiffs words, liability. where a sole defen- In other Thus, issues to pleadings give notice of the fault, plead comparative there dant does Lien, 420, tried. v. 910 S.W.2d Castelli liability apportioning of for dam- will be no (Tenn.Ct.App.1995). 429 may have though the defendant ages even allege pleadings do not The defendants’ only partially at fault. Evidence negligent or that his that Dr. Daniell was nonparty plaintiff or a to establish the tends contributing cause of negligence was responsible for the as a tortfeasor However, evidence, injuries. their plaintiffs admissible unless alleged is not Allen, testimony Dr. tends to establish fault as an affir- pled comparative dant has his negligent and that that Dr. Daniell was mative defense. injuries. plaintiffs negligence caused Admission of Dr. Allen’s testi- portion of a Dr. Daniell That evidence tends to establish requiring the de- prejudicial error mony was tortfeasor, responsible for at fault and as a Appeals to be reversed of the Court cision injuries. an invitation It also is trial. for a new and the case remanded persons other jury to shift the fault to conclusion, than the defendants.
course, thаt since the defendants did identify other plead comparative fault and tortfeasors, testi- portion of Dr. Allen’s the fault to Dr.
mony which tends to shift Daniell was not admissible. of causation which does Relevant evidence RAMSEY, Brian Mitchell nonparties as tortfea-
not tend to establish Plaintiff/Appellant, general denial. sors is admissible under which, as in evidence a defendant’s BEAVERS, Defendant/Appellee. case, in fact to show no causation tends James G. if it also is inadmissible Tennessee, Supreme Court negligent and that nonparty was that a shows at Knoxville. nonparty’s negligence was the damages. pres- In the cause of the 7, 1996. Oct. case, heavily relied ent patient was Dr. Allen’s surgery and that positioned for
improperly the cause of the positioning was Inc., 8; Truckstops, Vogue, 3. Owens v. R. Civ. P. Hammett 2. Tenn. (Tenn.1996). (1942). 165 S.W.2d Tenn.