The legislature has made a major change in summary judgment procedure in Tennessee state courts.
In 2008, the Tennessee Supreme Court issued its opinion in Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008) which modified the summary judgment standard in Tennessee state courts. Federal Courts require that the party with the burden of proof must “put up or shut up” with regarding to a claim being challenged on a summary judgment motion, and the party requesting summary judgment can shift the burden of production to the nonmoving party by demonstrating an absence of evidence on a claim. In Hannan the Tennessee Supreme Court held that in order for the moving party to shift the burden of proof to the non-moving party, the party moving for summary judgment must either affirmatively negate an essential element of the nonmoving party’s claim or show that the nonmoving party cannot prove an essential element of the claim at trial. It did not matter if the nonmoving party could not provide evidence of a claim at the time of the summary judgment motion as long as it was possible that the nonmoving party to provide evidence at trial. As a result of Hannan and its progeny, summary judgment became very difficult to obtain in Tennessee state courts.
In reaction to these cases, the Tennessee General Assembly, has passed HB 1358 which brings the summary judgment standard in state courts more in line with federal court. HB 1358 adds the following provisions to 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:
(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.
The new summary judgment standard is expected to go into effect on July 1, 2011, and will apply to all actions filed on or after that date.
A copy of HB 1358 can be viewed here.