McIntyre v. Balentine

• Citation: 60 USLW 2764,833 S.W.2d 52
• Parties: Harry Douglas McINTYRE, Plaintiff-Appellant, v. Clifford BALENTINE and East-West Motor Freight, Inc., Defendants-Appellees.
• Decision Date: 04 May 1992
• Court: Tennessee Supreme Court

Page 52

833 S.W.2d 52

60 USLW 2764

Harry Douglas McINTYRE, Plaintiff-Appellant, v. Clifford BALENTINE and East-West Motor Freight, Inc. Defendants-Appellees.

Supreme Court of Tennessee at Jackson.

May 4, 1992.

Rehearing Denied June 1, 1992.

T. Robert Hill, Hill, Boren, Drew & Martindale, P.C., Jackson, John W. Wade, Waller, Lansden, Dortch & Davis, Nashville, Professor Jerry J. Phillips, University of Tennessee, College of Law, J. Anthony Farmer, Ray, Farmer & Eldridge, Knoxville, for plaintiff-appellant.

Robert V. Redding, Waldrop, Breen, Bryant, Crews, Taylor & McLeary, P.A., Jackson, for defendant-appellee Clifford Balentine.

J. Daniel Breen, Waldrop, Breen, Bryant, Crews, Taylor & McLeary, P.A., Jackson, for defendant-appellee East-West Motor Freight, Inc.

Terry L. Hill, James M. Doran, Jr., Donald Capparella, Manier, Herod, Hollabaugh & Smith, Nashville, for amicus curiae Tennessee Defense Lawyers' Association.

OPINION

DROWOTA, Justice.

In this personal injury action, we granted Plaintiff's application for permission to appeal in order to decide whether to adopt a system of comparative fault in Tennessee. We are also asked to determine whether the criminal presumption of intoxication is admissible evidence in a civil case. We now replace the common law defense of contributory negligence with a system of comparative fault. Additionally, we hold that the criminal presumption of intoxication established by T.C.A. Sec. 55-10-408(b) (1988) is admissible evidence in a civil case.

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. The accident occurred in the vicinity of Smith's Truck Stop in Savannah, Tennessee. As Defendant Balentine was traveling south on Highway 69, Plaintiff entered the highway (also traveling south) from the truck stop parking lot. Shortly after Plaintiff entered the highway, his pickup truck was struck by Defendant's Peterbilt tractor. At trial, the parties disputed the exact chronology of events immediately preceding the accident.

Both men had consumed alcohol the evening of the accident. After the accident, Plaintiff's blood alcohol level was measured at .17 percent by weight. Testimony suggested that Defendant was traveling in excess of the posted speed limit.

Plaintiff brought a negligence action against Defendant Balentine and Defendant East-West Motor Freight, Inc. ¹ Defendants answered that Plaintiff was contributorially negligent, in part due to operating his vehicle while intoxicated. After trial, the jury returned a verdict stating: "We, the jury, find the plaintiff and the defendant equally at fault in this accident; therefore, we rule in favor of the defendant."

After judgment was entered for Defendants, Plaintiff brought an appeal alleging the trial court erred by (1) refusing to instruct the jury regarding the doctrine of comparative negligence, and (2) instructing the jury that a blood alcohol level greater than .10 percent creates an inference of intoxication. The Court of Appeals affirmed, holding that (1) comparative negligence is not the law in Tennessee, and (2) the presumption of intoxication provided by T.C.A. Sec. 55-10-408(b) (1988) is admissible evidence in a civil case.

I.

The common law contributory negligence doctrine has traditionally been traced to Lord Ellenborough's opinion in Butterfield v. Forrester, 11 East 60, 103 Eng.Rep. 926 (1809). There, plaintiff, "riding as fast as his horse would go," was injured after running into an obstruction defendant had placed in the road. Stating as the rule that "[o]ne person being in fault will not dispense with another's using ordinary care," plaintiff was denied recovery on the basis that he did not use ordinary care to avoid the obstruction. See 11 East at 61, 103 Eng.Rep. at 927.

The contributory negligence bar was soon brought to America as part of the common law, see Smith v. Smith, 19 Mass. 621, 624 (1824), and proceeded to spread throughout the states. See H.W. Woods, The Negligence Case: Comparative Fault Sec. 1:4 (1978). This strict bar may have been a direct outgrowth of the common law system of issue pleading; issue pleading posed questions to be answered "yes" or "no," leaving common law courts, the theory goes, no choice but to award all or nothing. See J.W. Wade, W.K. Crawford, Jr., and J.L. Ryder, Comparative Fault In Tennessee Tort Actions: Past, Present and Future, 41 Tenn.L.Rev. 423, 424-25 (1974). A number of other rationalizations have been advanced in the attempt to justify the harshness of the "all-or-nothing" bar. Among these: the plaintiff should be penalized for his misconduct; the plaintiff should be deterred from injuring himself; and the plaintiff's negligence supersedes the defendant's so as to render defendant's negligence no longer proximate. See W. Keeton, Prosser and Keeton On The Law Of Torts, Sec. 65, at 452 (5th ed. 1984); J.W. Wade, supra, at 424.

In Tennessee, the rule as initially stated was that "if a party, by his own gross negligence, brings an injury upon himself, or contributes to such injury, he cannot recover;" for, in such cases, the party "must be regarded as the author of his own misfortune." Whirley v. Whiteman, 38 Tenn. 610, 619 (1858). In subsequent decisions, we have continued to follow the general rule that a plaintiff's contributory negligence completely bars recovery. See, e.g., Hudson v. Gaitan, 675 S.W.2d 699, 704 (Tenn.1984); Talbot v. Taylor, 184 Tenn. 428, 432, 201 S.W.2d 1, 3 (1935); Nashville Ry. v. Norman, 108 Tenn. 324, 333, 67 S.W. 479, 481 (1902); Railroad v. Pugh, 97 Tenn. 624, 627, 37 S.W. 555, 557 (1896); Postal Telegraph-Cable Co. v. Zopfi, 93 Tenn. 369, 373, 24 S.W. 633, 634 (1894); East Tennessee V. & G.R.R. v. Conner, 83 Tenn. 254, 258 (1885); Louisville & N.R.R. v. Robertson, 56 Tenn. 276, 282 (1872); Nashville & C.R.R. v. Carroll, 53 Tenn. 347, 366-67 (1871); Cogdell v. Yett, 41 Tenn. 230, 232 (1860).

Equally entrenched in Tennessee jurisprudence are exceptions to the general all-or-nothing rule: contributory negligence does not absolutely bar recovery where defendant's conduct was intentional, see, e.g., Stagner v. Craig, 159 Tenn. 511, 514, 19 S.W.2d 234, 234-35 (1929); Memphis St. Ry. v. Roe, 118 Tenn. 601, 612-13, 102 S.W. 343, 346 (1907); where defendant's conduct was "grossly" negligent, see, e.g., Ellithorpe v. Ford Motor Co., 503 S.W.2d 516, 522 (Tenn.1973); Carroll, 53 Tenn. at 366-67; where defendant had the "last clear chance" with which, through the exercise of ordinary care, to avoid plaintiff's injury, see, e.g., Roseberry v. Lippner, 574 S.W.2d 726, 728 (Tenn.1978); Kansas City, M. & B.R.R. v. Williford, 115 Tenn. 108, 120-21, 88 S.W. 178, 181-82 (1905); Davies v. Mann, 152 Eng.Rep. 588 (1842); or where plaintiff's negligence may be classified as "remote." See, e.g., Arnold v. Hayslett, 655 S.W.2d 941, 945 (Tenn.1983); Street v. Calvert, 541 S.W.2d 576, 585 (Tenn.1976); Norman, 108 Tenn. at 333, 67 S.W. at 481; East Tennessee, V. & G. Ry. v. Hull, 88 Tenn. 33, 36, 12 S.W. 419, 419-20 (1889).

In contrast, comparative fault has long been the federal rule in cases involving injured employees of interstate railroad carriers, see Federal Employers' Liability Act, ch. 149, Sec. 3, 35 Stat. 66 (1908) (codified at 45 U.S.C. Sec. 53 (1988)), and injured seamen. See Death On The High Seas Act, ch. 111, Sec. 6, 41 Stat. 537 (1920) (codified at 46 U.S.C. Sec. 766 (1988)); Jones Act, ch. 250, Sec. 33, 41 Stat. 1007 (1920) (codified as amended at 46 U.S.C. Sec. 688 (1988)). See generally V. Schwartz, Comparative Negligence Sec. 1.4(A) (2d ed. 1986).

Similarly, by the early 1900s, many states, including Tennessee, had statutes providing for the apportionment of damages in railroad injury cases. See V. Schwartz, supra, at Sec. 1.4. While Tennessee's railroad statute did not expressly sanction damage apportionment, it was soon given that judicial construction. In 1856, the statute was passed in an effort to prevent railroad accidents; it imposed certain obligations and liabilities on railroads "for all damages accruing or resulting from a failure to perform said dut[ies]." Act of Feb. 28, 1856, ch. 94, Sec. 9, 1855-56 Tenn. Acts 104. See generally J.W. Wade, supra, at 431-33. Apparently this strict liability was deemed necessary because "the consequences of carelessness and want of due skill [in the operation of railroads at speeds previously unknown] ... are so frightful and appalling that the most strict and rigid rules of accountability must be applied." See East Tennessee & G.R.R. v. St. John, 37 Tenn. 524, 527 (1858); Note, Railroads--Precautions Act--Effect of 1959 Amendment, 28 Tenn.L.Rev. 437, 439 (1961). The statute was then judicially construed to permit the jury to consider "[n]egligence of the person injured, which caused, or contributed to cause the accident ... in determining the amount of damages proper to be given for the injury." Louisville & N.R.R. v. Burke, 46 Tenn. 45, 51-52 (1868). This system of comparative fault was utilized for almost a century until 1959 when, trains no longer unique in their "astonishing speeds," the statute was overhauled, its strict liability provision being replaced by negligence per se and the common law contributory negligence bar. See Act of Mar. 10, 1959, ch. 130, Sec. 2, 1959 Tenn.Pub. Acts 419; Note, supra, 28 Tenn.L.Rev. at 439.

Between 1920 and 1969, a few states began utilizing the principles of comparative fault in all tort litigation. See C. Mutter, Moving to Comparative Negligence in an Era of Tort Reform: Decisions for Tennessee, 57 Tenn.L.Rev. 199, 227 n. 127 (1990). Then, between 1969 and 1984, comparative fault replaced contributory negligence in 37 additional states. Id. at 228. In 1991, South Carolina became the 45th state to adopt comparative fault, see Nelson v. Concrete Supply Co., 303 S.C. 243, 399...