Another Blue Chip Tort Case

Intentional Interference With Contractual Relations

The Case: Trau-Med of America, Inc. v. Allstate Ins. Co., 71 S.W.3d 691 (Tenn. 2002). Author: Justice William M. Barker

Why it is a Blue Chipper: Trua-Med is the first Tennessee case to recognize a common law cause of action for intentional interference with contractual relations. To reach that result the Court overruled Nelson v. Martin, 958 S.W.2d 653 (Tenn. 1997).

The Basic Facts: “Medical center filed a complaint against an insurance company and several of its employees alleging, inter alia, that the defendants tortiously interfered with its business relationship and conspired to destroy the company's business reputation.” 71 S.W.3d at 691.

The Bottom Line:

A. “[W]e expressly adopt the tort of intentional interference with business relationships, thereby overruling that portion of our decision in Nelson. We also hold that liability should be imposed on the interfering party provided that the plaintiff can demonstrate the following: (1) an existing business relationship with specific third parties or a prospective relationship with an identifiable class of third persons; (2) the defendant's knowledge of that relationship and not a mere awareness of the plaintiff's business dealings with others in general; (3) the defendant's intent to cause the breach or termination of the business relationship; (4) the defendant's improper motive or improper means, see, e.g., Top Serv. Body Shop, 582 P.2d at 1371; and finally, (5) damages resulting from the tortious interference.” Id. at 701.

B. “We adopt the discussion in § 766B comment c of the Restatement (Second) of Torts, which provides:

The relations protected against intentional interference by the rule stated in this Section include any prospective contractual relations, except those leading to contracts to marry, if the potential contract would be of pecuniary value to the plaintiff. Included are interferences with the prospect of obtaining employment or employees, the opportunity of selling or buying land or chattels or services, and any other relations leading to potentially profitable contracts. Interference with the exercise by a third party of an option to renew or extend a contract with the plaintiff is also included. Also included is interference with a continuing business or other customary relationship not amounting to a formal contract.” Id. at 701 fn. 4 (Emphasis added by the Court).

C. “It is clear that a determination of whether a defendant acted “improperly” or possessed an “improper” motive is dependent on the particular facts and circumstances of a given case, and as a result, a precise, all-encompassing definition of the term “improper” is neither possible nor helpful. However, with regard to improper motive, we require that the plaintiff demonstrate that the defendant's predominant purpose was to injure the plaintiff. See Leigh Furniture & Carpet Co., 657 P.2d at 307-08.

Moreover, in the attempt to provide further guidance, we cite the following methods as some examples of improper interference: those means that are illegal or independently tortious, such as violations of statutes, regulations, or recognized common-law rules, see id. at 308; violence, threats or intimidation, bribery, unfounded litigation, fraud, misrepresentation or deceit, defamation, duress, undue influence, misuse of inside or confidential information, or breach of a fiduciary relationship, see Duggin, 360 S.E.2d at 836 (citing Top Serv. Body Shop, Inc., 582 P.2d at 1371 n. 11); and those methods that violate an established standard of a trade or profession, or otherwise involve unethical conduct, such as sharp dealing, overreaching, or unfair competition, see id. at 837.” Id. at 701 fn. 5.

D. “In the instant case, Trau-Med has pleaded both improper motive and improper means of interference. First, Trau-Med alleges that Allstate knew of its business relationships with plaintiff-attorneys and claimants. Specifically, Allstate allegedly interfered with six specific actions filed in the Circuit Court of Shelby County by making false statements about the propriety of Trau-Med's business and by threatening to protract the litigation process. As a result of Allstate's alleged conduct, “[p]laintiff-attorneys, claimants, and others, ••• because of fear of litigation and other reasons, [have been induced] not to refer persons and to discontinue use of Plaintiff's clinic.” Trau-Med contends that this improper interference with its existing business relationships resulted in substantial economic harm to Trau-Med. Allstate's predominant motive was to drive Trau-Med out of business for the sole purpose of limiting health care access to indigent claimants to “control and limit [Allstate's] claims expenses.” Viewing these factual allegations in a light most favorable to the plaintiff, we find that Trau-Med has sufficiently stated a claim for tortious interference with a business relationship.” Id. at 701-02.


Note: There is also a statutory cause of action:

A. “It is unlawful for any person, by inducement, persuasion, misrepresentation, or other means, to induce or procure the breach or violation, refusal or failure to perform any lawful contract by any party thereto; and, in every case where a breach or violation of such contract is so procured, the person so procuring or inducing the same shall be liable in treble the amount of damages resulting from or incident to the breach of the contract. The party injured by such breach may bring suit for the breach and for such damages.” T. C. A. § 47-50-109.

What is a Blue Chip Tort Case?

Blue Chipper - Policemen and Firemen's Rule

The Case:  Carson v. Headrick, 900  S.W..2d 685  (Tenn. 1995).  Author:  Justice Riley Anderson.

Why it is a Blue Chipper:  Carson is the leading, current case on policemen and firemen's rule.

The bottom line:

A.  “The policemen and firemen's rule precludes firefighters and police officers from recovering damages for injuries arising out of risks peculiar to their employment. The rule originated over one hundred years ago in Gibson v. Leonard, 143 Ill. 182, 32 N.E. 182 (1892).” P. 687.

B.  "[W]e observe that the preservation of organized society requires the presence and protection of police officers. Situations requiring the presence of police, although commonplace and inevitable, are also routinely dangerous. Public policy considerations, as well as societal expectations, militate against allowing police officers to institute tort actions against a citizen for an injury resulting from a risk the officer is trained and hired to confront. Simply stated, societal policies do not support imposition of a duty of reasonable care upon a citizen calling for police assistance.  Rather, public policy is served when citizens are encouraged to summon aid from police, regardless of their negligence, and are assured that the compensation for injuries sustained by police in the line of duty will be borne by the public as a whole.  Accordingly, we conclude as a matter of public policy that a citizen owes no duty of reasonable care to police officers responding to that citizen's call for assistance and join the majority of other jurisdictions who have reaffirmed the policemen and firemen's rule on public policy grounds.  P. 690 [Citations omitted.]

C.  “[W]e are of the opinion that the policemen and firemen's rule constitutes a logical and sound application of the tort principle of duty.”   P. 690 [Footnote omitted.]

D.  “A principal exception to the rule that has developed in other states is relevant to the disposition of this case. That exception provides that when a police officer is injured by the intentional, malicious, or reckless*691 acts of a citizen, the action is not barred by the policemen and firemen's rule.  The rationale for the exception is that police officers are not employed to submit to intentional, reckless, or malicious injury. Moreover, recognition of moral fault as a component of public policy is a common principle of tort law.  Exposing the individual wrongdoer to liability will not only act as a deterrent to others, but it will also relieve the public of the financial burden attributable to the intentional, individual wrongdoer. Prohibiting recovery against one who intentionally, maliciously or recklessly causes injury to police officers stretches the policy considerations supporting the policemen and firemen's rule beyond logical and justifiable limits. As a result, the majority of courts considering the issue have concluded that either by action or inaction, a citizen has a duty to refrain from intentionally, maliciously, or recklessly causing injury to police officers responding to the citizen's call for assistance.”  P. 690-91 [Citations omitted.]

E.  “We reaffirm the policemen and firemen's rule which precludes firefighters and police officers from recovering damages for injuries arising out of risks peculiar to their employment. We also conclude, however, that a duty of care is owed where police officers are injured by a citizen's intentional, malicious, or reckless misconduct.”   P 691.

Other Cases of Note: 

A.  Jamison v. Ulrich, 2006 WL 407795  (Tenn. Ct. App. Feb. 22, 2006) (rule applies to dog catchers).

Blue Chipper - Parental Liability for Acts of Child

The case:  Lavin v. Jordon, 16 S.W.3d 362 (Tenn. 2000).  Author:  Justice William M. Barker.

Why it is a Blue Chipper:  Lavin v. Jordan is the leading case on the liability of parents for the willful or malicious tortious acts of their children.  It is important to note, however, that despite some rather broad language in Lavin the Eastern Section of the Tennessee Court of Appeals has recently held that neither Lavin nor the statute referenced below are applicable in cases where the child negligently causes injury or death.

The bottom line:

A.  The relevant statute (Tenn.Code Ann. §§ 37-10-101 to -103 (1996 & Supp.1999):

37-10-101. Recovery for injury or damage by juvenile.
Any municipal corporation, county, town, village, school district or department of this state, or any person, or any religious organization, whether incorporated or unincorporated, shall be entitled to recover damages in an action in assumpsit in an amount not to exceed ten thousand dollars ($10,000) in a court of competent jurisdiction from the parents or guardian of the person of any minor under eighteen (18) years of age, living with the parents or guardian of the person, who maliciously or willfully causes personal injury to such person or destroys property, real, personal or mixed, belonging to such municipal corporation, county, township, village, school district or department of this state or persons or religious organizations.


37-10-102. Limitation on amount of recovery.-
The recovery shall be limited to the actual damages in an amount not to exceed ten thousand dollars ($10,000) in addition to taxable court costs.


37-10-103. Circumstances under which parent or guardian liable.-
(a) A parent or guardian shall be liable for the tortious activities of a minor child that cause injuries to persons or property where the parent or guardian knows, or should know, of the child's tendency to commit wrongful acts which can be expected to cause injury to persons or property and where the parent or guardian has an opportunity to control the child but fails to exercise reasonable means to restrain the tortious conduct.
(b) A parent or guardian shall be presumed to know of a child's tendency to commit wrongful acts, if the child has previously been charged and found responsible for such actions.


Tenn.Code Ann. §§ 37-10-101 to -103 (1996 & Supp.1999).

B.   "The plaintiffs first argue that section 37-10-103 represents a codification of the common law tort of negligent control and supervision of children and that any action commenced under this section is not subject to the statutory cap on damages in section 37-10-102. The defendants, however, argue that section -103 is not an independent cause of action and that the section only serves to set forth the circumstances under which a parent may be held liable for the acts of their children as provided in section 37-10-101. According to this interpretation, the section -102 cap on damages would apply to limit the amount of any recovery. "  P. 365.


C.  "[W]e find no evidence that section 37-10-103 has ever been intended to provide for a cause of action separate and independent of that presently stated in section 37-10-101."  P. 367-68.

D.  "The plaintiffs also argue that the 1981 and 1985 amendments did not supersede the common law with regard to parental liability as established by our decision in Bocock v. Rose, 213 Tenn. 195, 373 S.W.2d 441 (1963). Regretfully, we must again disagree."  P. 368.

E.   "In comparing the parental liability cause of action with our decision in Bocock, we are constrained to conclude that the basis of liability imposed by the statute and by our decision in Bocock are virtually identical with respect to intentional torts committed by children. Although parental liability under the 1957 appears to have been technically grounded in vicarious liability, the plain language of the 1981 and 1985 amendments fundamentally changed the nature of the cause of action. Unlike the original version of section -1003, the current section -103(a) does not contain any language that would require the defendant to prove 'due care and diligence.' Instead, section -103(a) now states that '[a] parent or guardian shall be liable for the tortious activities of a minor child that causes injuries to persons or property where····'  As this language makes clear, lack of parental negligence is no longer merely a defense to liability; parental negligence is now the basis of that liability. In other words, unlike the original statute, plaintiffs now need to show more than the mere existence of a parent/child relationship to establish a prima facie case; plaintiffs must now show that the parents are actually at fault before any liability can attach."  P. 369 (footnote omitted).

F.  "We hold that Tennessee Code Annotated section 37-10-103(a) does not establish an independent cause of action against parents for the intentional acts of their children. We also hold that the common law in this regard has been superseded by statute, at least in so far as intentional or malicious injury to persons or property is concerned. Consequently, the total amount of damages recoverable by the plaintiffs in this case based upon allegations of intentional conduct by the defendants' minor child is governed by Tennessee Code Annotated section 37-10-102. Although we recognize that the wisdom of certain statutes is generally a question for the General Assembly, the legislature may wish to reconsider the effect that section 37-10-102 has upon cases such as this one. "  P. 370.

G. (Justice Birch's dissent)  "Chief among our points of disagreement is my firm conviction that the cause of action for negligent parental supervision as established by and refined in Bocock v. Rose remains, in my opinion, viable, extant, and uncapped in the amount of damages recoverable. Thus, I cannot agree that the statutes under discussion provide the sole vehicle for the redress of injuries caused by negligent parental supervision."  P. 370 (footnote omitted).

Other materials of note on the issue of the liability of parents for the tortious acts of their children:

A.  Henneberry v. Simoneaux, 2006 WL 2450138  (Tenn.Ct.App. August 22, 2006) ( Lavin does not apply when the child acted negligently rather than willfully or maliciously; however,  parents are not vicariously liable for the negligent acts of their children and their liability, if any, is based on the principles articulated in the Restatement (Second) of Torts § 316 (1965) or negligent entrustment  as described in Restatement (Second) of Torts § 390 (1965).

B.  Restatement (Second) of Torts § 316 (1965):  "A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent  (a) knows or has reason to know that he has the ability to control his child, and  (b) knows or should know of the necessity and opportunity for exercising such control."

C. Restatement (Second) of Torts § 390 (1965),  "One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them."  This section was cited with approval in West v. E. Tenn. Pioneer Oil Co., 172 S.W.3d 545, 554 (Tenn.2005).

 

What is a Blue Chipper?

Blue Chipper - Wrongful Death Damages

The case: Jordan v. Baptist Three Rivers Hospital,   984 S.W.2d 593 (Tenn. 1999).  Author:  Justice Janice M. Holder.

Why it is a Blue Chipper"  Jordan overruled past precedent that misread the wrongful death damages statute and permitted, for the first time, a factfinder to award damages for the loss of love, society and affection in a wrongful death case.  It recogized that the value of human life exceeded the dollar value of the decedent to earn money.   The case allowed the factfinder to consider such damages when the deceased was survived by a spouse or children, whether the children were minors or adults.

The bottom line:

A.  The relevant statute, T.C.A. Sec. 20-5-113:  "Where a person's death is caused by the wrongful act, fault, or  omission of another, and suit is brought for damages . . . the party  suing shall, if entitled to damages, have the right to recover the  mental and physical suffering, loss of time, and necessary  expenses resulting to the deceased from the personal injuries, and  also the damages resulting to the parties for whose use and  benefit the right of action survives from the death consequent  upon the injuries received."

B. "In 1903, this Court held in Davidson Benedict Co. v. Severson, 72 S.W.  967 (Tenn. 1903), that consortium damages were not available under Tennessee's wrongful death statute. "  P. 598-99.

C. "Damages under our wrongful death statute can be delineated into two  distinct classifications. Thrailkill v. Patterson, 879 S.W.2d 836 (Tenn. 1994);  Davidson Benedict Co. v. Severson, 72 S.W.2d 967 (Tenn. 1903). The first  classification permits recovery for injuries sustained by the deceased from the  time of injury to the time of death. Damages under the first classification include  medical expenses, physical and mental pain and suffering, funeral expenses,  lost wages, and loss of earning capacity. ... The second classification of damages permits recovery of incidental
damages suffered by the decedent's next of kin. ... Incidental damages have been judicially defined  to include the pecuniary value of the decedent's life. Spencer v. A-1 Crane  Serv., Inc., 880 S.W.2d 938, 943 (Tenn. 1994). Pecuniary value has been  judicially defined to include "the expectancy of life, the age, condition of health  and strength, capacity for labor and earning money through skill, any art, trade,  profession and occupation or business, and personal habits as to sobriety and  industry." Id."  P. 600.

D.  "We further believe  that the pecuniary value of a human life is a compound of many elements. An  individual family member has value to others as part of a functioning social and  economic unit. This value necessarily includes the value of mutual society and  protection, i.e, human companionship. Human companionship has a definite,  substantial and ascertainable pecuniary value, and its loss forms a part of the  value of the life we seek to ascertain. While uncertainties may arise in proof  when defining the value of human companionship, the one committing the  wrongful act causing the death of a human being should not be permitted to seek  protection behind the uncertainties inherent in the very situation his wrongful act  has created. Moreover, it seems illogical and absurd to believe that the legislature would intend the anomaly of permitting recovery of consortium losses  when a spouse is injured and survives but not when the very same act causes a spouse's death. " P. 600.

E.  " A basis for placing an economic value on parental consortium is that the  education and training which a child may reasonably expect to receive from a  parent are of actual and commercial value to the child. Accordingly, a child  sustains a pecuniary injury for the loss of parental education and training when a  defendant tortiously causes the death of the child's parent. ... Adult children may be too attenuated from their parents in some cases to  proffer sufficient evidence of consortium losses. Similarly, if the deceased did  not have a close relationship with any of the statutory beneficiaries, the statutory  beneficiaries will not likely sustain compensable consortium losses or their  consortium losses will be nominal. The age of the child does not, in and of itself,  preclude consideration of parental consortium damages. The adult child inquiry  shall take into consideration factors such as closeness of the relationship and  dependence (i.e., of a handicapped adult child, assistance with day care, etc.)."  P. 601.

F.  "We hold that consortium-type damages may be considered when  calculating the pecuniary value of a deceased's life. This holding does not  create a new cause of action but merely refines the term"pecuniary value."  Consortium losses are not to limited to spousal claims but also necessarily  encompass a child's loss, whether minor or adult. Loss of consortium consists of  several elements, encompassing not only tangible services provided by a family  member, but also intangible benefits each family member receives from the  continued existence of other family members. Such benefits include attention, guidance, care, protection, training, companionship, cooperation, affection, love,  and in the case of a spouse, sexual relations. Our holding conforms with the  plain language of the wrongful death statutes, the trend of modern authority, and the social and economic reality of modern society."  P.  601-02.

Other cases of note on the issue of the recoverability of damages for loss of consortium in wrongful death cases:

A.  Hancock v. Chattanooga-Hamilton County Hosp., 54 S.W.3d 234 (Tenn. 2001) (parents may seek damages for loss of consortium for the wrongful death of their unmarried minor daughter).

B.  Rothstein v. Orange Grove Center, Inc., 60 S.W.3d 807 (Tenn. 2001) (parents may seek damages for loss of consortium for the wrongful death of their unmarried, childless adult daughter).

C. Kline v. Eyrich, 60 S.W.3d 197 (Tenn. 2002) (loss of consortium claim is not a seperate claim for damages but instead is one component of the of the pecuniary value of the decedent's life).

D.  Ki v. State, 78 S.W.3d 876 (Tenn. 2002) (applying Kline and holding the loss of consortium damages are not awarded to individual claimants but rather part of the recoverable damages in the decedent's right of action and therefore, in claims against the State of Tennessee, an action for wrongful death is but one claim to which the statutory cap on damages applies).

E.  Hunter v. Ura, 163 S.W.3d 686 (Tenn. 2005) (for the purpose of determing the amount of damages, loss of consortium begins at the time of the death and not at the time of trial).

What is a Blue Chipper?


Blue Chipper - Medical Malpractice - Locality Rule

The case: Robinson v. LeCorps, 83 S.W.3d 718 (Tenn. 2002). Author: Justice E. Riley Anderson

Why it is a Blue Chipper: Robinson made it crystal clear that a standard of care expert in a medical malpractice case may not base that testimony on a national standard of care and that an expert's testimony will be excluded if it based solely on a national standard.

The bottom line:

A. Plaintiff first attempted to argue that Tennessee courts should adopt a national standard of care in medical malpractice cases:

"Despite the clear statutory language and evidence of legislative intent, Robinson asserts that the locality rule in Tenn.Code Ann. ㋔ 29-26-115(a)(1) should be enlarged or broadened by adopting a national standard of professional care for all malpractice actions, malpractice actions involving physicians who are board-certified in a particular area, or malpractice actions involving a specific treatment issue or area of medicine. There is no statutory language or other evidence of legislative intent, however, that would support such an interpretation.

...[W]e decline to adopt the plaintiff's interpretation based either on policy arguments or alleged evidence of the existence of a national standard of care in the medical community that are better addressed to the legislature."
Id. at 723-24.


B. Plaintiff also attempted to argue that his expert was qualified to testify against an orthopedic surgeon in Nashville.

"Accordingly, in applying Tenn.Code Ann. ㋔ 29-26-115(a)(1) to the scant evidence in this case, it is clear that [Plaintiff's expert] Dr. Kennedy's testimony did not establish the standard of professional care in Nashville, Tennessee, or in a similar community. Although Dr. Kennedy was licensed in Tennessee, practiced in Johnson City, Tennessee, and was board certified in orthopaedic surgery, he testified only that the applicable standard of care in this case "would be expected" to be the same as the national standard of care and that "[t]here is no differentiation recognized in �?�?�? one locality as opposed to the other, certain localities comparable with Nashville�?�?�?�?" Dr. Kennedy also stated that orthopaedic surgeons "would stand the same test and would be expected to have the same knowledge and to practice in very similar fashions by the American Board of Orthopaedic Surgeons." He did not, however, relate the basis for his knowledge of the standard of care in Nashville or indicate why the Nashville medical community was similar to, and thus had the same standard of professional care as, the community with which Dr. Kennedy was familiar.

We therefore agree with the Court of Appeals' conclusion that the trial court did not abuse its discretion by excluding the deposition testimony."
Id. at 724-25.

A Blue-Chipper for Friday

I have not posted any blue-chip tort cases lately. There is no particular reason for my failure to do so; there has just been a good deal of other information out there to post.

(For those of you who are new to this blog you can read about "blue-chippers" here.)

Today I have a special treat for you - two blue-chippers. Why? Because they really need to be considered together to understand the full impact on them in Tennessee law.

In Carroll v. Whitney, 29 S.W.3d 14 (Tenn. 2000) the Tennessee Supreme Court ruled that fault can be assigned to a state employee (who cannot be sued in tort and the vicarious liability of the State is limited to $300,000)and, to the extent that the dollar-value of the fault exceeds the damage cap the plaintiff bears the loss.

On the very same same day the Tennessee Supreme Court released its opinion in Dotson v. Blake, 29 S.W.3d 26 (Tenn. 2000). The Court ruled that a defendant can ask that fault can be assigned to a party that the plaintiff cannot sue because of the expiration of a statute of repose and that the plaintiff bears the economic consequences of the jury's allocation of fault to that nonparty.

I think both of these decisions are wrong, and am happy to report that Justice Anderson dissented in both of them. It is unfair for the General Assembly to make the decision that certain people or entities are not responsible for their conduct and then have our courts place the sole burden of that decision on a plaintiff when others contributed to cause the harm. Presumably, all citzens - plaintiffs and defendants - derive some economic benefit from governmental immunity and statutes of repose. If so, it only seems fair that the cost of that immunity be borne not only by a plaintiff but also by any other person who contributed to cause plaintiff's injury or death.

Obviously, the Tennessee Supreme Court thinks otherwise.

So why include these as blue-chippers? Remember, the test for a blue-chipper is not whether I agree with the decision but whether I believe the decision is one that I think Tennessee tort lawyers need to know. There is no doubt that these decisions qualify. Each decision impacts case selection in a very meaningful way and in fact may make it impossible to economically pursue a case that is otherwise viable.

Blue Chipper - Summary Judgement

McCarley v. West Quality Food Service, Inc., 960 S.W.2d 585 (Tenn. 1998) is one of my favorite blue chippers because it is a double-chipper.

First, McCarley made it possible for a plaintiff to actually win a food poisoning case without having retained a sample of the product that caused the injury.

Second, and more important in the day-to-day life of trial lawyers, McCarley was the first decision to require that a party seeking summary judgment actually had to have some evidence establishing an affirmative defense or defeating an element of the opponent's claim before the burden shifted to the opponent. After this decision, a defendant could no longer file a one-paragraph motion and brief and say "prove it;" instead, the defendant had to say "this undisputed evidence right here says you can't prove it or, even if you can, this undisputed evidence establishes an affirmative defense that you can't beat." (Of course, either party can still file a motion on a pure issue of law.)

McCarley is a great decision and clearly worthy of "blue chipper" status.

Products Liability Blue Chipper

The Ray by Holman v. BIC Corp., 925 S.W.2d 527 (Tenn. 1996)
case is a leading decision in Tennessee products liability law. Start your products liability research with this case (right after you read the Tennessee Products Liability Act).

The opinion states that that Tennessee Products Liability Act provides for both the consumer expectation test and the prudent manufacturer test, latter of which requires risk-utility balancing in its application. Use of the prudent manufacturer test requires the determination of whether, after balancing all the relevant factors, a prudent manufacturer would market the product despite its dangerous condition. Naturally, a prudent manufacturer would consider usefulness, costs, seriousness and likelihood of potential harm, and the myriad of other factors (i.e. the risk-utility test).

Blue Chipper - Negligent Infliction of Emotional Distress

I have already written about one blue-chip case in the field of negligent infliction of emotional distress. This case is the second decision to advance the law in the field.

In Ramsey v. Beavers, 931 S.W.2d 527 (Tenn. 1996), the court reversed the dismissal of a lawsuit filed man who saw his mother hit by a car. The court allowed him to assert a claim of negligent infliction distress, saying that its "holding today abandons the hypertechnical approach of the zone of danger rule and recognizes that in certain circumstances a plaintiff whose physical safety is not endangered may nonetheless suffer compensable mental injury as a result of injuries to a closely related third person which plaintiff observes sensorily."

This decision helped Tennessee start down the path of recognizing that pain in the mind and heart is as worthy of protection as a pain in the back. That journey continues.

Blue Chipper - Negligent Infliction of Emotional Distress

The tort of negligent infliction of emotional distress is really three torts in one. But the father of all three is Camper v. Minor, 915 S.W.2d 4377 (Tenn. 1996).

Camper is the first case in which the Tennessee Supreme Court abandoned the notion that freedom from purely emotional injuries was not worthly of protection. The court held that a person who was directly involved in a incident caused by the negligence of another but suffered only emotional injuries could recover for those injuries if they were "serious or severe" and if they were supported by expert medical or scientific proof. These cases have now come to be known as "stand-alone" claims of negligence infliction of emotional distress.

This case opened the door to protection of one's emotional well-being from the negligence of others. In future weeks I will discuss the cases that followed from and expanded on this decision.

The Tennessee Supreme Court has become a leader in the imposition of responsibility to prevent harm to another's well-being. The Court is to be congradulated from freeing itself - and Tennesseeans - from the bonds of centuries of the law to the contrary.

Blue Chipper - Premises Liability

Coln v. City of Savannah, 966 S.W.2d 34 (Tenn. 1998), is a must-know for anyone handling a slip and fall or trip and fall case in Tennessee. Indeed, it is important reading for anyone handling any type of premises liability case in this state. It is the first Tennessee Supreme Court decision in the field after the adoption of comparative fault.

Be sure to read both the majority opinion and the concurring opinion to see a philosophical divide on the subject as wide as the one between Nietzsche and St. Thomas Aquinas.

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Blue Chipper: No Fault for Phantoms

The McIntyre opinion permitted fault to be assessed against people who were not a party to the action. From the day McIntyre was released it was clear that a defendant could ask that fault be assessed against a prior defendant who settled before trial. Over the years that followed it became clear that fault could be assessed against certain other people that the plaintiff could not have sued.

In Brown v. Wal-Mart, 12 S.W3d 785 (Tenn. 2000), the defendant tried to blame a phantom party. In other words, it tried to blame not only a person who the plaintiff could not sue but a person who it failed or refused to even identify. The Tennessee Supreme Court rejected that effort. Click here to read the opinion.

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Another Blue Chipper - Damages

The leading case on the law of damages in personal injury cases comes not from the Tennessee Supreme Court but rather from an opinion authored by Judge Koch on the Court of Appeals, Middle Section.

Judge Koch is an excellent writer. His opinions are exremely through and provide a great place to start legal research on viturally any topic he has written about during his twenty years on the Bench.

The opinion in Overstreet v. Shoney's, Inc., 4 S.W.3d 694 (Tenn. Ct. App. 1999) is another example of the foregoing. If you know this opinion you know 85% of what you need to know about the law of damages in personal injury cases.

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Another Blue Chipper

Any list of the most important tort cases in the history of Tennessee tort law must include McIntyre v. Ballentine, 833 S.W.2d 52 (Tenn. 1992).
This opinion radically changed Tennessee law by adopting modified comparative fault and abolishing joint and several liability in the vast majority of cases. The opinion also represented a major step by a newly-constituted court to bring Tennessee jurisprudence in step with the rest of the country.
By the way, the plaintiff lost the case on remand.

What is a "Blue Chipper?"

More than two decades ago I enrolled in an Antitrust Law course at the University of North Carolina School of Law, under the mistaken impression that it was the sequel to the Domestic Relations Law course I had taken a semester earlier. I quickly realized my error, but elected to stay the course and learn a little business law.

The Professor was Bill Aycock, former Professor of the School of Law and former Chancellor of the University. He is a wonderful man and a fine teacher, the kind of gentleman who undoubtedly makes a perfect grandfather.

Professor Aycock identified certain cases that he called the "Blue Chippers" of antitrust law, a concept taken from the notion of "blue chip" stocks. (You remember "blue chip" stocks - a phrase developed back when accountants were more like Robert Caro and less like John Grisham.)

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