In the aftermath of yesterday’s news that a Tennessee jury awarded Erin Andrews $55 Million, many news outlets have reported that Andrews will only be able to recover up to 49% of the damages (the amount allocated by the jury to the Nashville hotel and hotel operator). Not so fast.
First, contrary to some reports, the current Tennessee law (TCA 29-11-107) that limits damages in cases with multiple defendants to “the percentage of damages for which fault is attributed to such defendant” by the jury, does NOT apply in this case because the conduct at issue (Michael David Barrett taping Andrews, which occurred in 2008), predates the implementation of the law.
Second, although historically Tennessee had been a “joint & severable state”, Tennessee adopted what is called “comparative negligence” in 1992 which severely limited the application of joint & severable liability in cases with multiple defendants. However, exceptions to that rule still existed at the time of Andrews’ case. One such exception exists when a negligent defendant (Marriott Nashville & Hotel Operator) fails to prevent “foreseeable intentional conduct” of another (Barrett). This exception stems from the Tennessee Supreme Court case Limbaugh v. Coffee Medical Center. In that case, an elderly woman in a nursing home was beaten by a nursing home employee (the intentional conduct) and both the nursing home (who negligently failed to protect the plaintiff from foreseeable intentional conduct) and the employee were found to be jointly & severably liable (both liable for the full amount of damages). The Court concluded:
“where the harm arising from the tortious acts of an intentional tortfeasor was a foreseeable risk created by a negligent defendant, and all tortfeasors have been made parties to the suit, each tortious actor shall be jointly and severally liable for the plaintiff’s damages.”
So the real question becomes: Were Barrett’s criminal actions a reasonably foreseeable risk of the Hotel’s negligent acts of failing to protect its guests. Tennessee courts have held that “businesses do have a duty to take reasonable precautions to protect customers from foreseeable criminal acts” in certain instances. If Barrett’s actions were foreseeable, the hotel and operator could be on the hook for the full $55M even though the jury only assigned them 49% of the total fault. It is unknown whether this analysis has been applied to similar facts as the Andrews case.
Stay tuned, this fight isn’t over yet.