MARY L. SCALES
H.G. HILLREALTY CO., LLC, ET AL.
Session December 5, 2017
from the Circuit Court for Davidson County No. 14C5154 Kelvin
D. Jones, Judge
customer slipped and fell at a grocery store and sued four
different entities that owned and/or operated the store. When
two of the defendants filed a motion to compel the plaintiff
to respond to discovery responses, the plaintiff voluntarily
dismissed these defendants from the action. Then, in response
to an answer to an amended complaint in which another
defendant asserted the comparative fault of the dismissed
defendants, the plaintiff filed a second amended complaint
adding the dismissed defendants back in as named defendants
pursuant to Tenn. Code Ann. § 20-1-119. The newly added
defendants filed a motion to dismiss, which the trial court
granted. The plaintiff appealed, and we reverse the trial
court's judgment. We hold that the statute permitted the
plaintiff to add the formerly dismissed defendants back into
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Reversed and Remanded
Anthony Duncan, Nashville, Tennessee, for the appellant, Mary
Sulkowski and Julie Bhattacharya Peak, Brentwood, Tennessee,
for the appellees, H.G. Hill Realty Co., LLC and Hill Center
at Belle Meade, LLC.
D. Bennett, J., delivered the opinion of the Court, in which
Frank G. Clement, Jr., P.J., M.S., and W. Neal McBrayer, J.,
D. BENNETT, JUDGE.
case involves the interpretation of Tenn. Code Ann. §
20-1-119 and its application to H.G. Hill Realty Co., LLC and
Hill Center at Belle Meade, LLC (together, "the Hill
Defendants"), entities that were initially named as
defendants, then dismissed voluntarily, and finally added
back to the lawsuit as defendants. The trial court concluded
that the statute did not permit the plaintiff to add the Hill
Defendants back in as comparative tortfeasors, which we
believe was error.
to the complaint she filed on December 4, 2014, Mary L.
Scales slipped and fell on February 19, 2014, at a Publix
supermarket located on Harding Pike in Nashville, Tennessee.
Ms. Scales asserted that a Publix employee was pushing a
shopping cart containing her groceries out of an elevator and
into the parking garage when she slipped on an unsecured mat
that was on the ground right outside the elevator and fell,
sustaining injuries. Ms. Scales alleged that the shopping
cart as well as the unsecured mat caused her to trip. She was
taken by ambulance to a nearby hospital where she was treated
for a head injury. Ms. Scales asserted claims for ordinary
negligence, premises liability, and negligence per se against
Publix Super Markets, Inc. and Publix Tennessee, LLC
(together, "Publix") and claims for premises
liability and negligence per se against the Hill Defendants.
filed an answer on January 8, 2015, in which it asserted,
inter alia, "the comparative fault of or
attributable to the co-defendants as an affirmative
defense." The Hill Defendants filed an answer on January
15, 2015, in which they asserted as an affirmative defense
the comparative fault of Publix. The Hill Defendants served
discovery upon Ms. Scales in January and filed a motion to
compel her to respond to the discovery in April 2015. Ms.
Scales then filed a notice of voluntary dismissal without
prejudice of the Hill Defendants and Publix Super Markets,
Inc. The trial court issued an order granting the voluntary
dismissal of these defendants without prejudice on May 29,
Scales sought leave to file an amended complaint on August
15, 2016, to "clean things up a little" by
clarifying that only one defendant remained in the lawsuit,
Publix Tennessee, LLC. The trial court granted Ms.
Scales' motion, and Ms. Scales filed her amended
complaint on September 26, 2016. Publix filed its answer to
the amended complaint on September 30, 2016, and, as before,
Publix asserted as an affirmative defense the comparative
fault of the Hill Defendants.
Scales then filed a second amended complaint on October 5,
2016, in which she named as defendants Publix Tennessee, LLC
and the Hill Defendants. Ms. Scales specified in this
complaint that the Hill Defendants were "being made
parties to this civil action pursuant to Tenn. Code Ann.
§ 20-1-119" based on allegations Publix made in its
answer to her amended complaint asserting the comparative
fault of the Hill Defendants. A summons was issued to each of
the Hill Defendants on October 5, 2016. Publix and the Hill
Defendants filed answers to the second amended complaint. The
Hill Defendants then filed a motion to dismiss the second
amended complaint in January 2017.
basis of the Hill Defendants' motion to dismiss was that
Ms. Scales' second amended complaint was barred by the
one-year statute of limitations and her failure to satisfy
the requirements of Tenn. Code Ann. § 20-1-119.