In 2011, Tennessee lawmakers revamped tort law — or in layman’s terms, laws that apply when a company or person causes intentional or negligent harm to another person — but not in a good way, according to attorneys who handle personal injury cases.
The primary changes enacted are caps on noneconomic — pain and suffering, inconvenience, physical impairment, mental anguish and the like — and punitive damages a person can recover if they are injured by a person or company.
Exceptions to the punitive damage cap include intentional injury, intentional concealment or destruction of evidence of the defendant’s liability, or if the defendant was intoxicated when they inflicted the injury.
Economic damages include verifiable financial damages such as medical expenses, rehabilitation services, mental health treatment, custodial care, loss of earnings and earning capacity, loss of income, loss of property or costs to repair or replace property and loss of business or employment opportunities. Those damages, if verified, are not capped.
But with the new law, noneconomic damages were capped at $750,000 for each person injured. That amount can be increased to $1 million if the loss falls into a catastrophic category — spinal cord injury resulting in paralysis, amputation of two hands, two feet or one of each; third degree burns over 40 percent of the body, third degree burns up to 40 percent or more of the face; and wrongful death of the parent of a surviving child.
Punitive damages — damages imposed to punish the defendant for their action that caused the injury — are now capped at twice the compensatory damages, but no more than $500,000.
All that aside, there is a whole separate state law that protects government agencies from lawsuits that has been in place almost 40 years.
The cap there is $700,000 per incident regardless of how many people were injured.
Apply that to a recent school bus crash in Washington County that physically injured 26 of the 39 students onboard and it comes to $16,000 per student.
So if (the driver) had rolled this bus twice and killed these kids, we’d be looking at these parents and saying your child is worth $16,000,” said local attorney Tony Seaton.
“The county limits have been in for quite some time (but) they’re trying to put a cap on everything that would come out in a negligence action,” Seaton said. “The reason for that is so businesses can quantify what their responsibilities are going to be.”
Seaton said it gives business the advantage of knowing how financially liable it is if it causes injury to someone.
“The mindset is if I mess up 10 cases a year and I knew all I had to pay out was $100,000 a case, then I’m not going to be as careful. I can budget for that and know nobody will hold our feet to the fire,” he said.
Bryan Capps, president of the Tennessee Association for Justice — an organization created by trial lawyers “for the purpose of protecting the rights of individuals who are injured across the state” — said the new law essentially put the burden of supporting a person with an extensive noneconomic injury on society.
“Limiting those kinds of damages are particularly hard on the young and the old. If you have a child, and they haven’t established any earning capacity and they have a catastrophic injury, they’ve lost the enjoyment of possibly a lifetime. Or you have an elderly person who no longer earns money and they don’t have economic damages and they suffer an enormous amount of physical or emotional pain.
“So they’ve had enormous injury, they’ve suffered a great deal. That has a large value that is now arbitrarily capped,” he said. “They may not have any real economic value because they don’t earn anything. We believe it’s simply unconstitutional under Tennessee’s law for the legislature to come in and substitute its judgment for a jury, and that’s what it does. The caps on noneconomic damages have allowed the members of the legislature to come in and predetermine — as opposed to a jury of our peers, which the constitution requires — the maximum value of those kinds of damages,” Capps said.
And when it comes to caps on lawsuits against government agencies “there’s nothing right about that except that our constitution said if the sovereign — the governmental entity — decides to waive its immunity,” they are protected from being sued.
So if the Washington County Board of Education had not waived it’s immunity from being sued, there would have been no money available to compensate students and parents for the injuries in the crash.
“As a technical matter, the state and these entities are immune from prosecution in a civil case unless they decide they will waive their immunity … but they put restrictions on it,” in the $700,000 cap per incident.
Capps and Seaton said the push for the legislation came with the promise it would create jobs.
“The reason I do what I do in this organization is we believe in personal responsibility. We believe the tort system works in this country because we believe the person who causes the damage should be personally responsible for that damage and not the person who was harmed or society having to pick up the tab,” Capps said.
“As these caps go into place in the name of creating jobs — which they don’t — what really happens is, people who are catastrophically (injured) who can’t afford to pay and the people who harmed them can’t afford to pay, they wind up on disability, wind up on food stamps, wind up with foreclosed homes they wind up on Medicare or Medicaid and they become a liability on the public … society winds up paying for that,” he said.