A large percentage of my practice is devoted to automobile accidents. The following is an explanation of (a) the liability rules, and (b) the elements of damage recoverable in car wreck cases. Also included are some areas which I am asked questions about time and time again. I hope you find the information useful.

o COMPARATIVE FAULT

o With the advent of McIntyre v. Ballentine, 833 S.W.2d 52 (Tenn. 1992), which was a sweeping change under the previously existing Tennessee law, Tennessee became the thirteenth state to adopt modified comparative fault. At the time, there were eleven states which had a pure comparative fault system, (e.g. Florida, Kentucky, among others) where the injured party could be ninety (90%) percent at fault and still get a ten (10%) percent recovery if the other party contributed to the accident.

o Most states at the time of Tennessee’s adoption of comparative fault, (That was 22 states by number), had a 50/50 rule of modified comparative fault where one could be 50% at fault and still recover. If one hit the number of 51% at fault, there was no recovery.

o The amount by which the injured party was assessed percentage points of fault would reduce damages under all methods of comparative fault. Under Tennessee law, Tennessee is one of the 49% states an injured party can be 49% and still recover, but if they hit 50% at fault, there is no recovery.

o Thus, if an injured litigant has a $10,000.00 case and if found 40% at fault, the judge does the math at the conclusion of his finding by the jury and issues the judgment for $6,000.00. The judgment is reduced by the amount of the injured party’s fault.

o PHANTOM DEFENDANTS

Tennessee at one time was plagued by what was called “the phantom defendant” or “unidentifiable and unknown defendant rule which stated that even if one could not identify persons contributing to the fault, fault could be assessed. This led to some silly litigation and very burdensome addition of many parties who would then later be dismissed from the suit. It led to some very odd jury verdicts. Thankfully, this rule of law was abolished at the end of last year by the Tennessee Supreme Court by judicial decision. Joey Brown, as next best friend and natural guardian of Mitchell W. Brown v. WalMart Discount, Cities, 25 TAM 6-1.

o ELEVEN ELEMENTS OF DAMAGE

Tennessee has eleven elements of damage in the typical husband/wife car wreck. Five of these elements of damage are future damages which are based upon permanency of injury and six of the elements are past damages which occur up to the time of settlement or trial.

One may collect damages for personal injuries for past and future pain and suffering. Pain and suffering does not require any definite mathematical calculation but it is set in a reasonable amount or the period of time or duration of the symptomology. It is set by the trier of fact which is either the judge or a jury.

o PAST AND FUTURE PAIN AND SUFFERING

Elements of damages includes mental anguish. It is collectable in “tort cases” which would include personal injuries apart from statutory causes of action which may be different depending on the terms of the statute. The Tennessee Workers’ Compensation Act for instance does not permit a recovery per se for pain and suffering. Pain and suffering may result in a work disability and result in an award but one cannot collect pain and suffering as a specific element of damages in a workers’ comp whereas one can in a car wreck case, a slip and fall case, or a products liability case.

o PAST AND FUGURE LOSS OF ENJOYMENT OF LIFE

The next element of damages is loss of enjoyment of life which is interference with normal day to day activities. This would include such things as hobby activities, diminution in the quality of life, interference with normal activities such as gardening, bowling, golfing, taking walks in the park or whatever normal activity one participated in to enjoy life before the injury. Again, no definite mathematical formula is set out for that except for a reasonable amount for the duration of the injury by the trier of fact.

o PAST AND FUTURE MEDICAL EXPENSES

Past medical expenses up until the time of settlement or trial and future medical expenses which are reasonably projected are also an element of recovery.

o LOSS OF CAPACITY TO EARN INCOME

Loss of capacity to earn income, which is not only actual wage loss but the idea that one is not as effective an employee he would have been or could have been had the injury not occurred, is also a compensable item of damage.

In the more serious cases, many times, vocational experts will convert medical impairment into work disability. The loss of capacity to earn is then expressed in a dollar figure to be used in conjunction with economic testimony to project that loss over the person’s lifetime. This takes into consideration the effects of inflation and reduction of present value.

o PAST AND FUTURE LOSS OF CONSORTIUM

The Husband or Wife may claim loss of consortium which is the denial of the society, friendship, counsel and services of one’s spouse. Many times this is commonly thought to refer to sexual matters and interference with normal sexual relationship between married couples. However, the definition is actually much broader. It includes the loss of services within the home, the yard work, child care, cooking, cleaning, handyman type activities and generally anything which interferes with the orderly and usual running of the household. It applies equally to husbands and wives.

Loss of consortium also includes the concept that one may not be one’s normal, cheerful self and the idea that being in pain is producing an alteration in usual activities. Instead of going out and doing things as a couple including walks in the park, water skiing, or something as simple as visiting friends or relatives, the injured party oftentimes will not feel up to it and stay at home which also affects the spouse who may not be injured but may be suffering from the injuries of his or her marriage partner due to the change in lifestyle and activities. Thus, the loss of consortium includes anything that would have a negative impact on the marital relationship.

o PROPERTY DAMAGES

The most common property damages are, of course, those experienced in conjunction with the vehicle involved in the accident. There are two different types of property damage. First is what may be considered a total loss of use. Most insurance companies will not pay for a rental vehicle if it is a total loss of use but will pay for the destruction of the vehicle which is Tennessee law. One takes the before and after value, which is determined by the following test which is a question asked in Court:

“Assuming a willing seller and a willing buyer, neither under compulsion to buy or sell, do you have an opinion as to the value of the vehicle immediately before the accident?” The same question is then asked as to the value after the accident and the loss is determined with the insurance company keeping the salvage value if they pay the entire loss. Sometimes the vehicle owner will want to negotiate the salvage value because they have some particular use for the parties or intend to rebuild the vehicle later in spite of it being totaled. These matters are negotiable.

Moving to the issue of partial destruction or a damaged vehicle which can be repaired, the insurance company or Defendant should be responsible for reasonable vehicle rental charges which are part of the “loss of use” recovery and the reasonable cost of repair. These are the eleven elements of damage in the automobile accident case.

There are other kinds of injuries which may be peculiar to the facts of a given case such as mental shock, anxiety, producing a psychiatric reaction or condition of post-traumatic stress disorder or other conditions which go beyond the scope of this simplistic outline of the usual different elements of damages. Each of these elements of damage could be the subject of an entire newsletter to explain the complexities of how one looks at them, values, and reasonably estimates the various elements of damage which some view as art rather than science. Another interesting future topic is the difference between medical impairment (loss of anatomical function) and the result of that upon your ability to earn income and function in life which is “disability”.

Thus, the valuation of a personal injury case very much depends on the facts of a particular case. Each case is unique to its facts and the injured party’s individual circumstances. There are common themes which run through all cases but each case is different depending upon the nature of the injury, the quality of the medical proof and many, many other factors which become clearer as the case is worked up.

o VICARIOUS RESPONSIBILITY

The law often uses terms such as “vicarious liability” or “Respondeat Superior”. Simply put, under some circumstances, the injured party can sue upstream to the owner of the vehicle, owner of the company, head of the household, or parent. There may be another party not directly involved in the accident who may be liable because of ownership or a particular relationship to the driver.

o EMPLOYER/EMPLOYEE

One of the most common illustrations of this is the situation of an employee and employer. An employee who was driving a company vehicle, while in the course and scope of employment and who injured someone, subjects the employer to responsibility for their acts and failures to act. Thus, when a truck driver runs over a family of four, not only the truck driver is sued, but the company which employs him is also made a party.

o FAMILY PURPOSE DOCTRINE

Another common illustration is that of parent and child in what is called the “Family Purpose Doctrine”. The family purpose doctrine is the concept that makes the head of the household responsible if they furnish a vehicle for the use of the other persons within the household. This would apply to, most commonly, the relationship of a parent and child although it is not limited to that. If the head of the household furnishes a vehicle to another member of the family for their general use and provides the upkeep on the vehicle, then they subject themselves to responsibility. Again, this is a very general explanation of the doctrine which will be the subject of further discussion in a later newsletter.

o CO-SIGNING FOR DRIVER’S LICENSE

An interesting provision in Tennessee law which is also the law in many other states, is the parent/legal guardian responsibility for applicants for driver’s license which has two separate statutory provisions imposing liability on parents/legal guardians of applicants for driver’s license in the State of Tennessee.

T.C.A. §55-50-311 provides that there is liability for the adults for the actions of minors with learning permits.

T.C.A. §55-50-312 imposes liability for the acts of a driver under the age of eighteen, which states…

“(a)(1) The application of any person under eighteen (18) years of age for an instruction permit or driver’s license shall be signed and verified before a person authorized to administer oaths by such person’s parent, stepparent, grandparent, or guardian, or, in the event there is no parent, stepparent, grandparent, or guardian, then by another responsible adult who is willing to assume the obligation imposed under this chapter upon a person signing the application of a minor…”

If other than an immediate relative or guardian, then proof of insurance must be filed and shown. If the person is a married minor, then the spouse may sign if that person is capable of entering into contractual relationships.

The punch line comes in sub-section (b) which states…

“Any negligence or willful misconduct or violation of any motor vehicle law of this state or any municipality thereof by a minor under eighteen (18) years of age while driving a motor vehicle upon a highway or street shall be imputed to the person who has signed the application of such minor for a permit or license and shall be jointly and severally liable with such minor for any damages or fines occasioned by such negligence, willful misconduct or violation, or except as otherwise provided in sub-section (c).”

Sub-section (c) states that none of this has application if the minimum limits of insurance are maintained. Thus, one would be well advised to obtain insurance before letting their minor out on the street in a vehicle if they have signed for the minor’s license.

o SOFT TISSUE INJURIES

In the final analysis, automobile accident cases are the most common type of case which is seen in courts. There has been a downward trend in the last ten (10) years in jury verdicts for so-called soft tissue injuries not involving broken bones or surgeries, cracked bones or other visible marks of violence such as cuts and/or burns. Some attorneys believe the trend is, however changing to be more favorable to plaintiffs.

o VALUATION OF CASES

The method of valuing cases varies from some insurance companies taking a simplistic view of using multiples of medical expenses to other companies going to the extreme of using computer software which has as many as 150 different variables to consider based upon national or regional statistics.

In the final analysis, a case is worth whatever a jury or judge would award as the trier of fact. Thus, the attorney’s job is to advise the client and reasonably help them to realistically evaluate the case if a settlement is not reached.

o ALTERNATIVE DISPUTE RESOLUTION “ADR”

Many of the ADR cases now are submitted to either court ordered or private “non-binding mediation” which is a form of alternative dispute resolution which has greatly reduced the number of jury trials. Alternative dispute resolution, commonly referred to as “ADR” is a topic of a future newsletter and is something which gets many of the cases settled short of a jury trial. Suffice it to say, before ADR there were many, many more trials submitted to juries for determination in open court as to the value of the case. Most of the jury trials are now submitted to some form of ADR prior to going to trial and, in fact, many of the cases are settled through this medium. There have been many famous quotes about the uncertainty of legal proceedings and the gamble which one takes such as the old adage that “Many a slip can occur twixt the cup and the lip,” “A bird in the hand is worth two in the bush,” and there are many more colorful although less well known truisms of the risks one takes when going into court to submit one’s case to a jury. However, it is the last resort when reason does not prevail. We are fortunate to have a system for dispute resolution when being left to the tender mercies of the insurance company does not produce a reasonable settlement offer in a particular case.

o IN CONCLUSION

With all of its faults and inconsistent results which vary from case to case, our legal system is the best legal system that anyone has been able to devise thus far. If it were not in operation, then the entire system of compensation for injuries in the United States would cease to function. I cannot imagine being left to the discretion of “XYZ Insurance”, or whomever, to be completely fair and honest in setting the value of the case unless there was some method to bring them to justice. That is the purpose and function of the courts. It is true that justice does not come easily and must be fought for. It would be nice to state to one’s children and other family members that the world were a different place. However, it is not. Many times one must fight for the rights to which they believe they are entitled.

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