VOL. 111 | NO. 150 | Thursday, August 14, 1997
By SUZANNE THOMPSON
Didnt you see that sign?
Comparative fault is used in assessing the percentage of liability in cases involving personal injury
By SUZANNE THOMPSON
The Daily News
If Jane Doe is walking down a grocery store aisle, suddenly slips on a wet part of the floor and breaks her hip, she may want to sue her grocer once shes on her feet again or even before.
But if the grocer had a portable sign set up on the aisle that said "Caution, wet floor," the attorney for the grocers insurance company might argue that there was an implied assumption of the risk when she walked down the aisle.
"Liability is based on negligence. Assumption of the risk is based on consent, not the failure to exercise reasonable care," said William Kratzke, professor of law at the University of Memphis Cecil B. Humphreys School of Law.
Lee Chase III, managing partner at Glankler Brown, said many factors are involved in assessing the effectiveness of a publicly displayed notice.
"Does it automatically follow that the sign is going to release the person? I think Im inclined to say no. I think that, in my mind, there would be an argument as to the adequacy of the sign, whether it was apparent enough, whether it was a little one or a big one," Chase said.
Once upon a time in Tennessee, the school of thought that ruled regarding injuries of this sort was known as contributory negligence.
Chase said Tennessee previously followed the old English common law and under contributory negligence, if the plaintiff was guilty of any contributory negligence, however slight, the plaintiff could recover nothing.
The "Caution, wet floor," sign Jane Doe saw just as she broke her hip deals with the concept of implied assumption of the risk.
William L. Bomar, also a partner at Glankler Brown, said this aspect of risk does not exist separate and apart from comparative fault, which was established through case law.
The case of McIntyre vs. Balentine, listed in South Western Reporter 2d Series at 833, which was heard by the Tennessee Supreme Court in 1992, revamped the way assumption of the risk was addressed in Tennessee.
Known as comparative fault, or comparative negligence, the theory is that each party in an action bears liability for only the portion which he or she is responsible for.
Chase gave the example of jury deliberations in which the instruction is to assess how much all the injuries are worth. The jury arrives at $100,000. The judge then instructs the jury to assess the percentage of the plaintiffs injuries that were caused by the plaintiff and the percentage caused by the defendant. The jury finds the plaintiff to be 20 percent at fault, so the value of the injuries would be reduced by $20,000, and the plaintiff would recover $80,000.
"But, if the jury says, I think the injuries are worth $100,000, but that idiot plaintiff, as opposed to that idiot defendant, was more than 50 percent at fault, theres a jury verdict for zero," Chase said. "Thats Tennessees system.
"Now, a plaintiff cannot impliedly assume the risk and be completely barred from making a recovery. Assumption of the risk is now just one of the considerations that a jury would take in assessing fault against the plaintiff and against the defendant," Bomar said.
Under McIntyre vs. Balentine, if the fault of the plaintiff exceeds 50 percent, then there would be no recovery.
Lisa Circeo, an attorney at Glankler Brown, pointed out there is still a recognized distinction between expressed assumption of the risk and implied assumption of the risk.
Expressed assumption of the risk usually means that a specific document, or release, has been executed whereby a person would expressly assume the risk inherently involved in the activity in which he or she is about to participate.
Bomar added that the old standard for assumption of the risk is still viable in connection with what is known as the open and obvious danger rule.
That is, if a plaintiff is walking along and steps into a cavernous hole in the road, a court can keep the jury from deciding that issue by exercising this rule, which states that no reasonable person would have missed such a hole exercising reasonable care, and can bar the plaintiffs recovery.