During the final days of its 2011 session, the Tennessee General Assembly legislatively overruled two Tennessee Supreme Court decisions by statutorily changing Tennessee's summary judgment standard to more closely track the federal standard. The legislature’s action was a direct response to recent Tennessee Supreme Court decisions that dramatically departed from the summary judgment standard applied in the federal courts.
The Effect of Hannan on Summary Judgment in Tennessee
Federal courts follow the so-called "put up or shut up" rule which essentially allows the moving party to shift the burden of production to the nonmoving party by alleging the absence of evidence. However, in Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008), the Tennessee Supreme Court took a different approach. Specifically, in Hannan, the Court held that in order for the moving party to shift the burden, the movant 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. Thus, the Tennessee Supreme Court sent a clear message that Tennessee does not follow the federal standard. Pragmatically, the Hannan standard made it very difficult for a defendant to obtain summary judgment in Tennessee.
The New Law
The Tennessee General Assembly has now legislatively overruled the Hannan decision by adopting HB 1358 (now Public Chapter 498), which adds the following new provision at Tenn. Code Ann. § 20-16-101:
In motions for summary judgment in any civil action in Tennessee, the moving party who does not bear the burden of proof at trial shall prevail on its motion for summary judgment if it:
- Submits affirmative evidence that negates an essential element of the nonmoving party's claim; or
- Demonstrates to the court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim.
The new summary judgment standard, which now mirrors the federal standard, applies to all actions filed on or after July 1, 2011.
Special Issues Related to Employment Discrimination:
The Hannan shift in summary judgment standard was particularly troublesome in employment discrimination cases. For instance, in Gossett v. Tractor Supply Co., Inc., 320 S.W.3d 777, 779 (Tenn. 2010), the Tennessee Supreme Court held that the long-followed three-part test used to evaluate employment discrimination and retaliation claims, as articulated by the U.S. Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), was "incompatible with Tennessee summary judgment jurisprudence."
To address the Gossett decision, the legislature approved a related bill, HB 1641 (now Public Chapter 461). This legislation specifically added sections to the Tennessee Code providing that the principles in the three-part McDonnell Douglas test apply to all discrimination, wrongful discharge, and retaliation claims brought in Tennessee. This legislation went into effect on June 10, 2011, and applies to causes of action accruing on or after that date.
Conventional wisdom suggests that this legislative overhaul of Tennessee’s summary judgment procedure will increase the frequency of summary judgment being requested and granted. Such an effect could decrease the likelihood of frivolous lawsuits going to trial.