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: Day on TortsImportant Summary Judgment Case Released
By John A. Day
The Tennessee Supreme Court released its decision in Hannan v. Alltel Publishing Company and has affirmed Judge Susano's reversal of summary judgment in favor of the defendant.
The court, by a 4-1 margin, re-affirmed its decisions in Byrd, McCarley and Blair and held
a moving party who seeks to shift the burden of production to the nonmoving party who bears the burden of proof at trial must either: (1) affirmatively negate an essential element of the nonmoving party’s claim; or (2) show that the nonmoving party cannot prove an essential element of the claim at trial. In other words, Tennessee does not follow the "put up or shut up" rule so prevalent in our federal courts. The opinion also reaffirms the longstanding rule that while the existence of damages cannot be speculative the amount of damages may be uncertain so long as the plaintiff "lays a sufficient foundation to allow the trier of fact to make a fair and reasonable assessment of damages."
Chief Justice Holder's majority opinion may be viewed here.
Justice Koch dissented; his opinion may be viewed here.
Full post as published by Day on Torts on November 01, 2008 (boomark / email).
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