Sportscaster Erin Andrew’s suit against a Nashville Marriott and the stalker who the hotel let check-in to a room next to her has made national headlines. When the jury awarded her a total of $55 million damages, with about $27 million of that amount assessed to the Marriott, those who considered Andrew’s stalker to be far more at fault and an intervening cause of her injuries were shocked.  Yet, businesses may even be more surprised to learn that Marriott may ultimately be held on the hook for the full $55 million award.  If so, this could serve notice on companies who might otherwise think they can avoid responsibility for the intentional misconduct of employees, guests, or other actors on their property.

Although Tennessee, like many states, follows principles of comparative fault that require juries to apportion fault among tortfeasors, there are exceptions to the rule.  Tennessee’s Supreme Court has held that in cases involving an intentional actor and a negligent actor that are both found responsible for a plaintiff’s injuries, each defendant is to held jointly and severally liable and responsible for the total damages assessed when the intentional actor’s misconduct was a foreseeable risk of the defendant’s negligence.  See Limbaugh v. Coffee Medical Center, 59 S.W.3d 73, 85 (Tenn. 2001).  The Andrews’ case would appear to fit this paradigm.  There was an intentional actor (the stalker) and a negligent actor (the Marriott) that a jury found both at fault.  Andrews also successfully argued that the stalker’s filming and posting of video of her was a foreseeable result of the Marriott’s lax security.

At trial, the Court instructed the jury to apply the comparative fault standard, but Andrews’ attorneys are arguing in post-trial motions that the Marriott should be held responsible for the entire amount based on Limbaugh.  If the judge accepts this argument, this could serve as a wake-up call to companies.  Businesses can no longer seek shelter in a comparative fault defense when charged together with a defendant accused of intentional misconduct.  In such cases, most companies presumably think that such bad actors will shoulder the blame.  Instead, businesses that fail to anticipate and safeguard against the intentional (but foreseeable) bad acts of a guest, employee, contractor, or other related actor may find themselves footing the entire damages bill.