New Tennessee Summary Judgment Standard

By Abby Webb
(901) 328-8223

The Tennessee General Assembly passed a new summary judgment standard for all civil actions filed on or after July 1, 2011 in state court.  The new standard  set forth in Tennessee Code Annotated § 20-16-101, will theoretically make it easier to obtain summary judgment on meritless lawsuits than the prior standard articulated in the Tennessee Supreme Court opinion, Hannan v. Alltel Publishing Company.  In 2008, the Hannan decision sought to clarify the summary judgment standard in Tennessee making it clear that Tennessee did not adopt the “put up or shut up” standard that had long been applied in Federal Court.   Now the new statute will serve to overrule Hannan and adopt the “put up or shut up” standard through the second of its two prongs.Watch movie online The Transporter Refueled (2015)


The new statute will allow the Defendant to prevail on a Motion for Summary Judgment if he:  1) Submits affirmative evidence that negates an essential element of the nonmoving party’s claim; or  (2) Demonstrates to the court that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim.  In comparison, the Hannan decision required that the moving party either: 1) Afffirmatively negate an essential element of the nonmovant’s claim; or 2) show that the nonmoving party cannot prove an essential element of its claim at trial.  The addition of the “at trial” language in Hannan caused confusion as to when a trial judge could safely dismiss a meritless case making it more difficult to have a case dismissed at the summary judgment phase.  However, under the new statute, if a Defendant can show after discovery that the Plaintiff does not have sufficient evidence to establish one of the elements of their claim, the burden will shift to the Plaintiff to “put up” the proof or summary judgment will be granted. Therefore, the new standard will hopefully weed out frivolous claims prior to the trial phase of litigation and deter the filing of the more difficult cases to prove.


However, the Hannan standard should not be shelved by attorneys too quickly as it will still be utilized in cases filed prior to July 1, 2011.  We can also expect that there will likely be constitutional challenges to the new statute in the future as cases are appealed. Other interesting questions of law will likely emerge such as which standard applies, especially in cases which are nonsuited and refiled after July 1, 2011. If one reads the Myers v. AMISUB (SFH), Inc., opinion, which addressed whether the new notice and certificate of consultation requirements applied in a medical malpractice case nonsuited and refiled after the new statute went into affect, there is a good chance that the better argument will be that the new summary judgment standard will apply to nonsuited cases refiled after July 1, 2011.  This could also affect the amount of nonsuits filed by Plaintiffs in cases filed prior to July 1, especially if they have concerns that they could not survive the new standard.