Day On Torts : Tennessee Injury Lawyer & Attorney : John Day : Personal Injury, Accidents : Serving Memphis, Nashville, Knoxville

This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Tennessee Tort Cases.  To order the book go here.

§ 31.14 Road and Bridge Cases

The Case: Helton v. Knox County, 922 S.W.2d 877 (Tenn. 1996).

The Basic Facts: Plaintiff, the widow of a driver killed after his car went off a hundred-year-old, single- lane bridge, brought a claim against the Defendant county, alleging the county was liable for her husbands death because of its failure to erect rails on the side of the bridge, creating an unsafe driving condition on the road. 

The Bottom Line:

• “The first question is whether the bridge was in a ‘defective, unsafe, or dangerous condition’ so as to waive the county’s immunity under § 29-20-203. A general principle prevalent in both the common law preceding the enactment of the GTLA and in the Act itself is that governmental entities are generally immune from liability for any injury resulting from the exercise of governmental or proprietary functions. [Tennessee Code Annotated § 29-20-201(a) (Supp. 1995)] specifically restates this principle: ‘Except as may be otherwise provided in this chapter, all governmental entities shall be immune from suit for any injury which may result from the activities of such governmental entities wherein such governmental entities are engaged in the exercise and discharge of any of their functions, governmental or proprietary.’ The GTLA then removes governmental immunity ‘for injuries resulting from the negligent operation by any employee of a motor vehicle or other equipment,’ ‘for any injury caused by a defective, unsafe, or dangerous condition of any street, alley, sidewalk or highway ... includ[ing] traffic control devices thereon,’ ‘for any injury caused by the dangerous or defective condition of any public building, structure, dam, reservoir or other public improvement,’ and ‘for injury proximately caused by a negligent act or omission of any employee’ with numerous exceptions. Thus, the GTLA is in derogation of common law and must be strictly construed. Mowdy v. Kelly, [667 S.W.2d 489, 491 (Tenn. Ct. App. 1983)].” 922 S.W.2d at 881-82 (footnotes omitted).

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This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Tennessee Tort Cases.  To order the book go here.

§ 31.13 Qualified Immunity 

The Case: Cawood v. Booth, No. E2007-02537-COAR3-CV, 2008 WL 4998408 (Tenn. Ct. App. Nov. 25, 2008), perm. app. granted, (June 15, 2009).

The Basic Facts: At the direction of local sheriff’s department and with the cooperation of a female client of Cawood, a lawyer, Cawood was unknowingly audiotaped and videotaped engaging in acts of masturbation in the presence of the female client. Representatives of the sheriff’s department then permitted people other than those involved in the investigation, including non-employees of the sheriff’s department, to view the videotapes. Cawood brought a civil suit alleging various causes of action, and the court of appeals recognized that a jury issue existed on the claim of intentional infliction of emotional distress (outrageous conduct). The employees of the Sheriff’s Department asserted that the affirmative defense of qualified immunity barred any such claim. 

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This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Tennessee Tort Cases.  To order the book go here.

§ 31.12 Public Duty Doctrine

The Case: Ezell v. Cockrell, 902 S.W.2d 394 (Tenn. 1995).

The Basic Facts: A drunk driver injured Plaintiff and killed her husband. The drunk driver had been stopped by the police and permitted to continue to drive. Plaintiff sued the governmental entity employing the police officer, saying his negligent failure to detain the drunk driver was a cause of her injuries and her husband’s death. 

The Bottom Line:

• “[The issue is] whether a police officer owes a duty of care to a third party injured by a drunk driver whom the police officer has failed to arrest.” 902 S.W.2d at 396.

• “The public duty doctrine originated at common-law and shields a public employee from suits for injuries that are caused by the public employee’s breach of a duty owed to the public at large. [Kelly M. Tullier, Governmental Liability for Negligent Failure to Detain Drunk Drivers, 77 Cornell L.Rev. 873, 886 (1992)]. The doctrine can be traced to the United States Supreme Court’s decision in South v. Maryland, 59 U.S. (18 How.) 396, 15 L.Ed. 433 (1855), which held that a sheriff is not liable for failing to protect a kidnap victim because the sheriff’s duty to keep the peace was ‘a public duty, for neglect of which he is amenable to the public, and punishable by indictment only.’ Id. at 403.” Id. at 397.

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This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Tennessee Tort Cases.  To order the book go here.

§ 31.11 Negligent Infliction of Emotional Distress

The Case: Sallee v. Barrett, 171 S.W.3d 822 (Tenn. 2005).

The Basic Facts: Plaintiff sued police officer after he negligently discharged a gun and startled plaintiff. Plaintiff sued for negligent infliction of emotional distress. 

The Bottom Line:

• “Barrett filed a motion to dismiss for failure to state a claim pursuant to Tennessee Rule of Civil Procedure 12.02(6). Barrett argued that he was immune from suit pursuant to the provisions of the Governmental Tort Liability Act (‘GTLA’), Tennessee Code Annotated sections 29-20-101 et seq. It was his position that the City of Clarksville was the proper party because governmental entities are subject to liability for the negligent acts of its employees, and there is no exception for negligent infliction of emotional distress. Sallee countered that one of the exceptions to the general waiver of immunity for negligent acts is for ‘infliction of mental anguish,’ Tennessee Code Annotated 29-20-205(2) (2000), and this includes both negligent and intentional infliction of emotional distress. As such, the City of Clarksville would be immune from suit for negligent infliction of emotional distress caused by its employees, making Barrett the proper party to this lawsuit. Sallee also filed a motion to amend his complaint to add the City of Clarksville as a defendant.” 171 S.W.3d at 825.

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This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Tennessee Tort Cases.  To order the book go here.

§ 31.10 Limitations on Immunity Arising from Inspections 

The Case: Ford v. New Greater Hyde Park Missionary Baptist Church of Memphis, Nos. W2006-02614-COA-R9-CV, W2006-02615-COA-R9-CV, W2006-02616-COA-R9-CV, 2007 WL 4355490 (Tenn. Ct. App. Dec. 12, 2007). 

The Basic Facts:  “This interlocutory appeal concerns the liability of a municipality. Pursuant to the municipality's ordinances, a municipal inspector inspected a church building. The inspector sent a letter to the owners of the building notifying them that, due to the dilapidated condition of the building, they were in violation of a city ordinance. Over a year later, the building collapsed, killing four people, including three children, and injuring a fifth. The plaintiffs filed suit against the municipality for negligence based on the initial inspection and the municipality's failure to take appropriate action after the initial inspection. Three separate lawsuits were consolidated into this action. The municipality filed a motion for summary judgment, arguing that it was immune from liability. The motion was denied. The municipality was then granted permission for this interlocutory appeal.” 2007 WL 4355490 at *1. 

The Bottom Line: 

• “The City also contends that it is immune from liability for the Plaintiffs' claims under the GTLA. The general rule of governmental immunity from lawsuits is set forth in Tennessee Code Annotated § 29-20-201. The four exceptions to this general rule are enumerated in Tennessee Code Annotated §§ 29-20-202 through -205. The exception at issue in this appeal is contained in Tennessee Code Annotated § 29-20-205, which removes governmental immunity ‘for injury proximately caused by a negligent act or omission of any employee within the scope of his employment . . . .’ T.C.A. § 29-20-205 (2000). As to be expected, however, there are exceptions to the exception; Tennessee Code Annotated § 29-20-205 also provides that certain governmental acts or omissions, even if performed negligently, are not actionable. T.C.A. § 29-20-205(1)-(9) (2000). The statute specifically exempts a governmental entity from liability for injuries arising out of the entity's ‘failure to make an inspection, or by reason of making an inadequate or negligent inspection of any property.’ T.C.A. § 29-20-205(4) (2000). Pursuant to this provision, the City argues on appeal that it is immune from the Plaintiffs' claims herein.” Id. at *5 (footnote omitted).

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This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Tennessee Tort Cases.  To order the book go here.

§ 31.9     Limitations of Actions for Claims by Minors

The Case: Doe v. Coffee County Board of Education, 852 S.W.2d 899 (Tenn. Ct. App. 1992), perm. appeal denied, (May 3, 1993).

The Basic Facts: A high school basketball coach engaged in improper sexual activities with students at the high school where he worked. The trial court dismissed two of the students claims based on the statute of limitations.

The Bottom Line:

• “FN2 Tenn. Code Ann. § 28-1-106 which extends a minor's right to file suit for personal injuries for one year after the minor's eighteenth birthday applies to actions between private parties and to actions brought under the Tennessee Governmental Tort Liability Act. See Collier v. Memphis Light, Gas & Water Div., 657 S.W.2d 771, 775 (Tenn. Ct. App. 1983); Tenn. Code Ann. § 29-20-104(b) (1980).” 852 S.W.2d at 903 fn 2.

Other Sources of Note: Tenn. Code Ann. § 28-1-106.

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This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Tennessee Tort Cases.  To order the book go here.

§ 31.8     Latent Defect

The Case: Hawks v. City of Westermoreland, 960 S.W.2d 10 (Tenn. 1997).

The Basic Facts: Plaintiffs’ were owners of a home which suffered extensive damage in a fire, brought suit against the Defendant city under the Governmental Tort Liability Act (GTLA). Plaintiffs alleged that their home suffered extensive damage because firefighters could not open fire hydrants sooner because underground valves had been closed, rendering the hydrants inoperable. 

The Bottom Line: 

• “The City also argues that it is immune from suit because the plaintiffs did not prove that the closed valves and inoperable fire hydrants were patently defective conditions rather than latent defective conditions. We disagree.” 960 S.W.2d at 10.

• “The GTLA provides that ‘[i]mmunity is not removed for latent defective conditions,’ Tenn. Code Ann. § 29-20-204(b) (1980 Repl.), the Act does not condition the removal of immunity upon proof that injury resulted from a patently dangerous or defective condition. The City’s argument that immunity is removed only if a plaintiff proves that the injuries resulted from a patently defective condition is contrary to the plain language of the statute and is without merit.” Id. at 16-17.

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This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Tennessee Tort Cases.  To order the book go here.

§ 31.7     Intentional Tort Exclusion

The Case: Limbaugh v. Coffee Medical Center, 59 S.W.3d 73 (Tenn. 2001).

The Basic Facts: Plaintiff, originally acting as the conservator for his mother, filed suit against Defendant medical center and its employee, a nursing assistant, to recover damages for his mother’s injuries when she was assaulted by the nursing assistant.  

The Bottom Line: 

• “[T]he issue here is whether CMC nonetheless retains its immunity pursuant to the intentional tort exception to this provision, which immunizes the governmental entity from tort liability if the injury arises out of ‘false imprisonment pursuant to a mittimus from a court, false arrest, malicious prosecution, intentional trespass, abuse of process, libel, slander, deceit, interference with contract rights, infliction of mental anguish, invasion of right of privacy, or civil rights.’ The intermediate court cited our decision in Potter v. City of Chattanooga, 556 S.W.2d 543 (Tenn. 1977), to hold, albeit reluctantly, that CMC retains its immunity because Ms. Ray

committed an intentional tort, assault and battery [sic], upon Emma Ruth Limbaugh. Inasmuch as the GTLA does not permit a plaintiff to recover for the intentional torts of governmental employees, and inasmuch as our supreme court’s decision in Potter does not permit a plaintiff to circumvent the defense of governmental immunity by asserting a claim for negligent hiring or retention, we conclude that the judgment entered against the Medical Center in this case must be reversed.”

                59 S.W.3d at 81.

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This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Tennessee Tort Cases.  To order the book go here.

§ 31.6     Immunity of Employees From Judgment 

The Case: Hill v. City of Germantown, 31 S.W.3d 234 (Tenn. 2000). 

The Basic Facts: Men who lost their wives in a high-speed police case sued police officers and City of Germantown. 

The Bottom Line: 

• “Tenn. Code Ann. § 29-20-310(b) precludes the entry of a judgment against the employee when the governmental entity’s immunity from suit has been removed pursuant to Tenn. Code Ann. §§ 29-20-202 -205.” 31 S.W.3d at 235.

Other Sources of Note: The statute provides only two exceptions to this general rule – licensed nurses and doctors. Here is the exact language of the relevant statute:

No claim may be brought against an employee or judgment entered against an employee for damages for which the immunity of the governmental entity is removed by this chapter unless the claim is one for medical malpractice brought against a health care practitioner. No claim for medical malpractice may be brought against a health care practitioner or judgment entered against a health care practitioner for damages for which the governmental entity is liable under this chapter, unless the amount of damages sought or judgment entered exceeds the minimum limits set out in § 29-20-403 or the amount of insurance coverage actually carried by the governmental entity, whichever is greater, and the governmental entity is also made a party defendant to the action. As used in this subsection (b), “health care practitioner” means physicians licensed under title 63, chapter 6, and nurses licensed under title 63, chapter 7.

Tenn. Code Ann. § 29-20-310(b). Of course, if the governmental entity is immune from suit, an employee who acts wrongfully is not immune from suit.

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This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Tennessee Tort Cases.  To order the book go here.

§ 31.5     Government Healthcare Providers as Tortfeasors

The Case: Mooney v. Sneed, 30 S.W.3d 304 (Tenn. 2000).

The Basic Facts: Plaintiff sued emergency medical technicians (EMTs) employed by local governmental entity and the entity. The EMTs sought dismissal, saying they were immune from suit. 

The Bottom Line: 

• “Our analysis begins with the proposition that the City of Memphis, as a governmental entity, is generally immune from suit for any injury resulting from its tortious actions, except in those instances in which immunity is expressly removed by the GTLA. See Tenn. Code Ann. § 29-20-201(a) (Supp. 1999); Hawks v. City of Westmoreland, 960 S.W.2d 10, 14 (Tenn. 1997). One such instance of express removal under the GTLA is the removal of governmental immunity for injury proximately caused by a negligent act or omission of a governmental employee, except under certain circumstances. Tenn. Code Ann. § 29-20-205 (Supp. 1999). Even where governmental immunity is removed by statute, governmental employees are generally immune from individual liability. Tenn. Code Ann. § 29-20-310(b) (Supp. 1999). However, there is a statutory exception to this immunity from individual liability for governmental employees. The exception in the statute reads:

No claim may be brought against an employee or judgment entered against an employee for damages for which the immunity of the governmental entity is removed by this chapter unless the claim is one for medical malpractice brought against a health care practitioner. . . .

Tenn. Code Ann. § 29-20-310(b) (Supp. 1999) (emphasis added).” 30 S.W.3d at 306.

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This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Tennessee Tort Cases.  To order the book go here.

§ 31.4    Duty of Teachers and Schools

The Case: Mason v. Metropolitan Government of Nashville and Davidson County, 189 S.W.3d 217 (Tenn. Ct. App. Sept. 30, 2005), perm. appeal denied, (Mar. 27, 2006).

The Basic Facts: Student brought negligence action against school arising out of attack on student by another student on a school bus.

The Bottom Line:

• “Defendant contends the trial court erred by finding it negligent because Moore's attack on Plaintiff was not foreseeable. The trial court found Defendant liable, reasoning the event was foreseeable ‘in this day and time’ because ‘the students and atmosphere have changed.’ We have determined the trial court applied an erroneous ‘foreseeability’ standard that produced an erroneous conclusion of liability. 189 S.W.3d at 220.

• “Society places a significant responsibility upon school officials to provide a safe environment for our children, the students. However, such a responsibility does not make our school officials insurers of the safety of its students.  To the contrary, teachers and school districts are not expected to be insurers of the safety of students. King by King v. Kartanson, 720 S.W.2d 65, 68 (Tenn.Ct.App.1986); Roberts v. Robertson County Board of Education, 692 S.W.2d 863, 872 (Tenn.Ct.App.1985); Cadorette v. Sumner County Board of Education, No.01A01-9510-CV-00441, 1996 WL 187586, at *2 (Tenn.Ct.App. April 19, 1996). Moreover, Tennessee does not impose upon teachers the duty to anticipate or foresee the hundreds of unexpected student acts that occur in our public schools. Roberts, 692 S.W.2d at 872. This is particularly true when injury results from conduct that constitutes a radical departure from reasonable conduct. See Doe v. Linder, 845 S.W.2d 173, 179 (Tenn.1992); Roe v. Catholic Diocese, 950 S.W.2d 27, 31-32 (Tenn.Ct.App.1996). Id. at 221.

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This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Tennessee Tort Cases.  To order the book go here.

§ 31.3     Discretionary Function Exception

The Case: Limbaugh v. Coffee Medical Center, 59 S.W.3d 73 (Tenn. 2001)

The Basic Facts: Plaintiff, originally acting as the conservator for his mother, filed suit against Defendant medical center and its employee, a nursing assistant, to recover damages for his mother’s injuries when she was assaulted by the nursing assistant. 

The Bottom Line:

• “We next address whether CMC is nevertheless immune from tort liability under section 29-20-205(1), the discretionary function exception. This exception immunizes local governmental entities from liability for an employee’s negligence if the injury arises out of “the exercise or performance or the failure to exercise or perform a discretionary function, whether or not the discretion is abused.” Essentially, the discretionary function exception prevents the use of tort actions to second-guess what are essentially legislative or administrative decisions involving social, political, economic, scientific, or professional policies or some mixture of these policies. Doe v. Coffee County Bd. of Educ., 852 S.W.2d 899, 907 (Tenn. Ct. App. 1992) (citing United States v. Gaubert, 499 U.S. 315, 323 (1991)). The rationale for preserving immunity for certain acts performed by governmental entities is that the government should be permitted to operate without undue interference by the courts, as courts are often “ill-equipped to investigate and balance the numerous factors that go into an executive or legislative decision.” Bowers v. City of Chattanooga, 826 S.W.2d 427, 431 (Tenn. 1992) (quoting Wainscott v. State, 642 P.2d 1355, 1356 (Alaska 1982)); see also Carlson v. State, 598 P.2d 969, 972 (Alaska 1979).” 59 S.W.3d at 84-85.

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This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Tennessee Tort Cases.  To order the book go here.

§ 31.2     Constructive Notice of Defective Condition                                                           

The Case: Hawks v. City of Westermoreland, 960 S.W.2d 10 (Tenn. 1997).

The Basic Facts: Plaintiffs’ were owners of a home which suffered extensive damage in a fire, brought suit against the Defendant city under the Governmental Tort Liability Act (GTLA). Plaintiffs alleged that their home suffered extensive damage because firefighters could not open fire hydrants sooner because underground valves had been closed, rendering the hydrants inoperable.

 The Bottom Line: 

• “The primary issue in this appeal is whether the City of Westmoreland had ‘constructive notice’ of the dangerous and defective condition of the fire hydrants which resulted in the total fire loss of the home of the plaintiffs, Tracey and Dale Hawks.” 960 S.W.2d at 11.

• “Under Tenn. Code Ann. § 29-20-204, the Legislature specifically made the removal of governmental immunity conditional upon a plaintiff’s allegation and proof that the governmental entity knew or should have known of the dangerous or defective condition which caused the plaintiff’s injury.   Smith v. City of Covington, [734 S.W.2d 327, 329 (Tenn. Ct. App. 1985)]. In other words, a plaintiff must allege and prove that the governmental entity had either actual or constructive notice of the dangerous or defective condition. Since the parties in this case have agreed that the City did not have actual notice, we must determine whether the lower courts erred in concluding that the City had constructive notice of the closed valves and inoperable fire hydrants.” Id. at 15.

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This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Tennessee Tort Cases.  To order the book go here.

§ 31.1     Applicability of Damage Cap to Loss of Consortium Claim

The Case: Swafford v. City of Chattanooga, 743 S.W.2d 174 (Tenn. Ct. App. 1997).

The Basic Facts: Husband was hurt in a motor vehicle wreck and sued the City of Chattanooga, among others. Wife brought loss of consortium claim. Husband was awarded maximum damages available under the Governmental Tort Liability Act, and trial judge held that wife could not be awarded damages for loss of consortium because the husband’s claim had exhausted the GTLA limits.

The Bottom Line:

• “Although a husband’s or wife’s claim for loss of consortium will always be ‘derivative’ in the sense that the injuries to his or her spouse are an element and must be proved, the right to recover for loss of consortium is a right independent of the spouse’s right to recover for the injuries themselves. The Tennessee Governmental Tort Liability Act reads in pertinent part as follows: ‘‘injury’ means death, injury to a person, damage to or loss of property or any other injury that a person may suffer to his person, or estate, that would be actionable if inflicted by a private person or his agent.’ [Tenn. Code Ann. § 29-20-102(4) (1980 and Supp. 1986)]. Although § 29-20-403 refers only to ‘bodily injury or death’ in setting the minimum limits of liability coverage under the Act, we think that the specific removal of immunity upon which recovery here rests-that of removal of immunity for injury from unsafe streets and highways of § 29-20-203-controls. It reads that ‘immunity from suit of a governmental entity is removed for any injury caused by defective, unsafe, or dangerous condition....’ (emphasis added). To hold that the language ‘bodily injury or death’ of § 29-20-403 controlled would create an exception to the clear removals of immunity created by §§ 29-20-201, -202, -203, -204, and -205. We therefore remand this case to the trial court to award judgment to Ms. Swafford for her damages due to loss of consortium.” 743 S.W.2dat 178-79.

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This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Tennessee Tort Cases.  To order the book go here.

§ 30.4     Reasonable Reliance 

The Case: Bradley v. All-American Classics of Tennessee, Inc., 2009 WL 1034797 (Tenn. Ct. App. April 16, 2009).

The Basic Facts: Bradley responded to an Internet advertisement seeking to sell a classic automobile. Bradley purchased the vehicle without seeing it and claimed it was not as represented in the advertisement. Seller said the problems could have been observed if Bradley had inspected the vehicle and thus there was no duty to disclose the problems. The trial judge directed a verdict for the seller.

The Bottom Line: 

• “[T]he defendant relies on the principle that it had ‘a duty to disclose . . . any material fact affecting the essence of the subject matter of the contract, unless ordinary diligence would have revealed the undisclosed fact.’ Lonning v. Jim Walter Homes, Inc., 725 S.W.2d 682, 685 (Tenn. Ct. App. 1986). This concept goes back almost 200 years in this state, to the time when Judge Overton wrote that it was ‘a sound principle of equity that each party to a contract is bound to disclose to the other all he may know respecting the subject-matter materially affecting a correct view of it, unless common observation would have furnished the information.’^FN3 Perkins v. McGavock, 3 Tenn. 415, 417 (1813).” 

FN3  The expression “common observation” used in Perkins has been construed to include the exercise of ordinary diligence. Simmons v. Evans, 206 S.W.2d 295, 296 (Tenn. 1947).

 2009 WL 1034797 at *4.

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§ 30.3     Promissory Fraud

The Case: Stacks v. Saunders, 812 S.W.2d 587 (Tenn. Ct. App. 1990).

The Basic Facts: Woman sought to set aside last will and testament of decedent alleging, inter alia, fraud and promissory fraud.

The Bottom Line:

• “The plaintiff in this case also raised a claim against the defendant based on the tort of fraud. The basic elements for a fraud action are: (1) an intentional misrepresentation with regard to a material fact, Keith v. Murfreesboro Livestock Market, Inc., [780 S.W.2d 751 (Tenn. Ct. App. 1989)]; (2) knowledge of the representation falsity--that the representation was made ‘knowingly’ or ‘without belief in its truth,’ or ‘recklessly’ without regard to its truth or falsity, Tartera v. Palumbo, [453 S.W.2d 780, 782 (Tenn. 1970)]; (3) that the plaintiff reasonably relied on the misrepresentation and suffered damage, Holt v. American Progressive Life Ins. Co., 7[31 S.W.2d 923, 927 (Tenn. Ct. App. 1987)]; Haynes v. Cumberland Builders, Inc., [546 S.W.2d 228, 232 (Tenn. Ct. App. 1976)]; and (4) that the misrepresentation relates to an existing or past fact, Haynes, 546 S.W.2d at 232, or, if the claim is based on promissory fraud, then the misrepresentation must ‘embody a promise of future action without the present intention to carry out the promise,’ Keith, [780 S.W.2d at 754 (citing Brungard v. Caprice Wreckers, Inc., 608 S.W.2d 585, 590 (Tenn. Ct. App. 1980)].” 812 S.W.2d at 592.

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§ 30.2     Duty to Disclose 

The Case: Homestead Group, LLC v. Bank of Tennessee,2009 WL 482714 (Tenn. Ct. App. Feb. 26, 2009).

The Basic Facts: Plaintiff hotel purchaser sued bank that sold hotel fraudulent and negligent misrepresentation, alleging that it misrepresented and concealed facts. 

The Bottom Line: 

• “As a general rule, a party may be found to be liable for damages caused by his failure to disclose material facts to the same extent that a party may be liable for damages caused by fraudulent or negligent misrepresentation. Gray v. Boyle Inv. Co., 803 S.W.2d 678, 683 (Tenn. Ct. App.1990). A person who fails to disclose to another a fact that he knows may justifiably induce the other to act or refrain from acting in a business transaction is subject to the same liability to the other as though he had represented the nonexistence of the matter that he has failed to disclose. However to find such liability, there must also be a showing that the person accused of the concealment had a duty to the other to disclose the matter in question. Macon County Livestock v. Kentucky State Board, 724 S.W.2d 349 (Tenn. Ct. App. 1986). One party to a transaction usually has no duty to disclose material facts to the other. Wright v. C & S Family Credit, Inc., No. 01A019-709-CH-00470, 1998 WL 195954 at *2 (Tenn. Ct. App. Apr. 24, 1998). However, Tennessee courts have identified three exceptions to this general rule and have held that a duty to disclose exists: where there is a previous definite fiduciary relationship between the parties; where it appears one or each of the parties to the contract expressly reposes a trust and confidence in the other; or where the contract or transaction is intrinsically fiduciary and calls for perfect good faith such as a contract of insurance which is an example of this last class. Macon at 349. Moreover, the courts have extended the duty of disclosure of material facts to real estate transactions under certain circumstances.” 2009 WL 482714at *4.

Other Sources of Note:     Goodall v. Akers, 2009 WL 528784 (Tenn. Ct. App. March 3, 2009) (Macon County Livestock v. Kentucky State Board, 724 S.W.2d 349 (Tenn. Ct. App. 1986)and Justice v. Anderson County, 955 S.W.2d 613 (Tenn. Ct. App. 1997) cited with approval); Justice v. Anderson County, 955 S.W.2d 613, 617 (Tenn. Ct. App. 1997) (seller of real estate has duty to disclose “material facts affecting the property’s value known to the seller but no reasonably known to or discoverable by the buyer”).

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§ 30.1     Generally

The Case: Brown v. Birman Managed Care, 42 S.W.3d 62 (Tenn. 2001).

The Basic Facts: Brown alleged that the defendant, her ex-husband’s employer engaged in a conspiracy with her ex-husband to engage in fraud and avoid his proper child support obligation. 

The Bottom Line:

• “The common law action for fraud may be stated as follows:

When a party intentionally misrepresents a material fact or produces a false impression in order to mislead another or to obtain an undue advantage over him, there is a positive fraud. The representation must have been made with knowledge of its falsity and with a fraudulent intent. The representation must have been to an existing fact which is material and the plaintiff must have reasonably relied upon that misrepresentation to his injury.

First Nat’l Bank v. Brooks Farms, 821 S.W.2d 925, 927 (Tenn. 1991) (quoting Haynes v. Cumberland Builders, Inc., 546 S.W.2d 228, 232 (Tenn. Ct. App. 1976)); see also Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992); Dobbs v. Guenther, 846 S.W.2d 270, 274 (Tenn. Ct. App. 1993). ‘Tennessee courts have recognized that fraud by its nature is often difficult to prove and thus may be properly proved by wholly circumstantial evidence.’ Edwards v. Travelers Ins. of Hartford, 563 F.2d 105, 112 (6th Cir. 1977) (citing Parrott v. Parrott, 48 Tenn. 681, 687 (1870)).” 42 S.W.3d at 67-68.

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§ 29.1     Generally - Liability 

The Case: Mills v. CSX, 300 S.W.3d 627 (Tenn. 2009).

The Basic Facts: Mills claimed that he was injured on his job as a worker for the defendant railroad. Defendant filed a motion for summary judgment on several points. The decision is centered on whether Defendant met its burden as the movant for summary judgment. 

The Bottom Line: 

• “A plaintiff may bring an FELA action in either federal or state court. While federal substantive law always controls FELA claims, claims brought in state courts ‘are subject to state procedural rules.’” 300 S.W.3dat 631 (citations omitted). 

• “An FELA claim has four elements, requiring that: (1) the employee was injured in the scope of employment; (2) the employee’s employment was in furtherance of the railroad’s interstate transportation business; (3) the railroad was negligent; and (4) the railroad’s negligence ‘played some part in causing the injury for which [the employee] seeks compensation under FELA.’” Id. (citation omitted).

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§ 28.1     Generally

The Case: Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996).

The Basic Facts: Plaintiff, a truck driver, was involved in a fatal accident with another vehicle at an intersection and subsequently exited his truck and viewed the body. Plaintiff brought an action for negligent infliction of emotional distress (NIED) against the owner of the car with which Plaintiff collided and the administrator of the deceased driver’s estate.  

The Bottom Line: 

• “The family purpose doctrine has been in effect in Tennessee for nearly eighty years, King v. Smythe,915 S.W.2d at 447. [204 S.W. 296 (Tenn. 1918)], and according to at least one court, has been ‘firmly established in this state.’ Stephens v. Jones, [710 S.W.2d 38, 42 (Tenn. Ct. App. 1984)]. Under the doctrine, the head of a household who maintains a motor vehicle for the general use and convenience of the family is liable for the negligence of any member of the family driving the vehicle, provided the driver received express or implied consent.” 

• “The family purpose doctrine is applicable when two requirements have been satisfied. First, the head of the household must maintain an automobile for the purpose of providing pleasure or comfort for his or her family. Scates v. Sandefer, [44 S.W.2d 310 (Tenn. 1931)].   Second, the family purpose driver must have been using the motor vehicle at the time of the injury ‘in furtherance of that purpose with the permission, either expressed or implied, of the owner.’ Redding, 230 S.W.2d at 205. See also Stephens v. Jones, [710 S.W.2d 38 (Tenn. Ct. App. 1984)]; Long v. Tomlin, [125 S.W.2d 171 (Tenn. Ct. App. 1938)].” Id.

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§ 27.1     Generally

The Case: Newsom v. Thalhimer Bros., Inc., 901 S.W.2d 365 (Tenn. Ct. App. 1994).

The Basic Facts: Plaintiff, an employee of Defendant’s store, was accused of theft. She sued on several theories, including false imprisonment. 

 The Bottom Line: 

• “False imprisonment is the intentional restraint or detention of another without just cause. Brown [v. SCOA Indus., Inc., 741 S.W.2d 916 (Tenn. Ct. App. 1997)], at 919. The elements of the tort of false imprisonment are (1) the detention or restraint of one against his will and (2) the unlawfulness of such detention or restraint. Coffee v. Peterbilt of Nashville, Inc., 795 S.W.2d 656, 659 (Tenn. 1990).” 901 S.W.2d at 367.

• “In the case before us, the single issue presented by this appeal is whether plaintiff’s proof rises to the level of creating a jury question as to whether defendants restrained her. Plaintiff voluntarily accompanied a superior employee to the manager’s office. During the course of her interrogation, neither McCoy nor McIntyre used any force or made any threats against her. Plaintiff testified that she made no attempt to leave the office, but that she felt compelled to remain by virtue of McCoy’s and McIntyre’s statements that if she did leave the office they would call the police. In our opinion, this evidence does not present a jury issue as to a detention.” Id.

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§ 26.4     Payment of Contingent Fee

The Case: Swafford v. Harris, 967 S.W.2d 319 (Tenn. 1998).

The Basic Facts: A plaintiff in a personal injury action entered into two contracts with his physician. The first provided that the physician would act as medico/legal consultant and assist in preparing the patient’s personal injury lawsuit in return for a contingency fee agreement, and the second requiring the patient’s attorney to pay the physician money owed to him for medical services he provided to the patient. 

The Bottom Line: 

• “The United States District Court for the Western District of Tennessee has certified the following questions to this Court pursuant to Rule 23 of the Tennessee Supreme Court.

1.             Whether a contract between a personal injury plaintiff and his physician to pay the physician a fee contingent on the outcome of litigation for the coordination of and consultation with respect to the medico/legal aspects of the lawsuit, including potentially the giving of expert medical testimony at trial, is enforceable under the laws of Tennessee;

2.             Whether a contract between a personal injury plaintiff and his physician to pay the physician a fee contingent on the outcome of litigation for medical services and treatment (i.e., actual care and treatment for the injuries) to the plaintiff/patient is enforceable under the laws of Tennessee; and

3.             If either or both of the above contracts are unenforceable, whether the physician may recover on a quantum meruit theory for the expert and/or medical services.”

                967 S.W.2dat 319-20.

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§ 26.3     Limited Use of Discovery Depositions of Experts 

The Case: Dial v. Harrington, 138 S.W.3d 895 (Tenn. Ct. App. 2003).

The Basic Facts: Trial court held that plaintiffs could not use discovery deposition of their expert witness in opposition to motion for summary judgment in medical malpractice. In the absence of expert proof on the issue of breach of the standard of care, the trial court granted summary judgment for the defendant.

The Bottom Line:

• “Tennessee Rule of Civil Procedure 32.01 is primarily a rule of evidence. Wilkes v. Fred’s, Inc., No. W2001-02393-COA-R3-CV, 2002 WL 31305202, at *4 (Tenn. Ct. App. Aug. 20, 2002) (no perm. app. filed) (citing Robert Banks, Jr. & June E. Entman, Tennessee Civil Procedure § 8-7(b) (1999)). It applies to the use of deposition testimony for cross-examination and impeachment, is a rule of completeness, and provides a hearsay exception for former testimony. Wilkes, 2002 WL 31305202, at *4. Section 32.01(3) governs when a deposition may be used as substantive proof under the former testimony exception to hearsay. Tenn. R. Civ. P. 32 advisory commission comments.” 138 S.W.3d at 898.

• Rule 32.01 provides:

Use of Depositions. — At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against the party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions[.]

Id.

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§ 26.2     Admissibility of Testimony

The Case: Brown v. Crown Equipment Corp.,181 S.W.3d 268 (Tenn. 2005).

The Basic Facts: The plaintiffs brought products liability action against the defendants for injuries sustained while operating stand-up forklifts alleging the forklifts were defective. 

The Bottom Line: 

• “We granted appeal in this products liability action to determine whether the trial court erred in excluding as unreliable the testimony of the plaintiffs’ two expert witnesses, a mechanical engineer and a biomechanical engineer, and thereafter granting a directed verdict in favor of the defendant. We hold that the trial court erred in applying the nonexclusive list of reliability factors set out in McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257 (Tenn. 1997). These factors are not mandated in every case in which expert evidence is offered and should not be applied unless the factor or factors provide a reasonable measure of the expert’s methodology.” 181 S.W.3d at 272.

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§ 26.1     Adequacy of Expert Witness Disclosures 

The Case: Walls v. Conner, No. E2007-01917-COA-R3-CV, 2008 WL 4735311 (Tenn. Ct. App. Oct. 27, 2008). 

The Basic Facts: Defendants in construction case failed to fully respond to expert witness interrogatories. Judge barred use defendant’s experts at trial.

The Bottom Line: 

• “Homeowners filed a motion in limine and asked that Contractor’s two experts be precluded from testifying. The motion was heard prior to the beginning of the bench trial. Contractor’s attorney argued that Homeowners’ attorney could have taken the depositions of the two experts. The court replied as follows:

Well, they didn’t know you were going to call them. They didn’t even know what they were going to say. Why should they be expected to make a decision about taking a deposition until they know what the people are going to say?

Isn’t that why we have a provision in Rule 26 for so-called expert interrogatories, identification of expert witnesses and identification of the basis upon which their opinion is rendered?”

2008 WL 4735311 at *1-*2.

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§ 25.8     Sale of Gasoline to Intoxicated Motorist

The Case: West v. East Tennessee Pioneer Oil Co., 172 S.W.3d 545 (Tenn. 2005).

The Basic Facts: Plaintiffs were injured in a head on collision with a drunk driver. The drunk driver had purchased gasoline from the Defendant gas station moments before and tests revealed that the drunk driver would not have had enough fuel to reach the scene of the accident without purchasing gasoline at the station. Plaintiffs filed suit against the gas station, alleging its employees were negligent in selling the drunk driver gasoline.

The Bottom Line: 

• “A negligence claim requires proof of the following elements: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct by the defendant falling below the standard of care amounting to a breach of that duty; (3) an injury or loss; (4) cause in fact; and (5) proximate or legal cause. Coln v. City of Savannah, 966 S.W.2d 34, 39 (Tenn. 1998) overruled on other grounds by Cross v. City of Memphis, 20 S.W.3d 643 (Tenn. 2000); see also McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995); McClenahan v. Cooley, 806 S.W.2d 767, 774 (Tenn. 1991). While we will discuss each of these elements in turn, our primary focus is on the first element: duty of care.” 172 S.W.3d at 550.

• “Although not a part of the early English common law, the concept of duty has become an essential element in all negligence claims. McCall, 913 S.W.2d at 153; Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn. 1993); see also [W. Page Keeton, Prosser & Keeton on the Law of Torts § 53 (5th ed. 1984)]. The duty owed to the plaintiffs by the defendant is in all cases that of reasonable care under all of the circumstances. Doe v. Linder Const. Co., 845 S.W.2d 173, 177 (Tenn. 1992). Whether the defendant owed the plaintiffs a duty of care is a question of law to be determined by the court. Burroughs v. Magee, 118 S.W.3d 323, 327 (Tenn. 2003); Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89; Coln, 966 S.W.2d at 39.” Id.

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§ 25.7     Helpless or Inattentive Plaintiffs 

The Case: Downs ex rel. Downs v. Bush, 263 S.W.3d 812 (Tenn. 2008).

The Basic Facts: Minor out for a night for a night of drinking with friends. Plaintiff’s decedent became very intoxicated. After Plaintiff’s decedent died as a pedestrian as a result of being struck by two vehicles on a local interstate highway, his mother brought suit against his drinking companions for failing to provide for his safety.

The Bottom Line:

• “The plaintiff insists that even if the defendants had no duty to act to prevent an unreasonable risk of harm, one or more of the exceptions to the ‘no duty to act’ rule apply. First, the plaintiff avers that section 324 of the [Restatement (Second) of Torts] applies to the defendants. This section provides:

One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by (a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor’s charge, or (b) the actor’s discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when the actor took charge of him.

[Restatement (Second) of Torts § 324].” 263 S.W.3d at 819.

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§ 25.6     Duty of Teachers and Schools

The Case: Mason v. Metropolitan Government of Nashville and Davidson County, 189 S.W.3d 217 (Tenn. Ct. App. Sept. 30, 2005), perm. appeal denied, (Mar. 27, 2006).

The Basic Facts: Student brought negligence action against school arising out of attack on student by another student on a school bus.

The Bottom Line:

• “Defendant contends the trial court erred by finding it negligent because Moore's attack on Plaintiff was not foreseeable. The trial court found Defendant liable, reasoning the event was foreseeable ‘in this day and time’ because ‘the students and atmosphere have changed.’ We have determined the trial court applied an erroneous ‘foreseeability’ standard that produced an erroneous conclusion of liability. 189 S.W.3d at 220.

• “Society places a significant responsibility upon school officials to provide a safe environment for our children, the students. However, such a responsibility does not make our school officials insurers of the safety of its students.  To the contrary, teachers and school districts are not expected to be insurers of the safety of students. King by King v. Kartanson, 720 S.W.2d 65, 68 (Tenn.Ct.App.1986); Roberts v. Robertson County Board of Education, 692 S.W.2d 863, 872 (Tenn.Ct.App.1985); Cadorette v. Sumner County Board of Education, No.01A01-9510-CV-00441, 1996 WL 187586, at *2 (Tenn.Ct.App. April 19, 1996). Moreover, Tennessee does not impose upon teachers the duty to anticipate or foresee the hundreds of unexpected student acts that occur in our public schools. Roberts, 692 S.W.2d at 872. This is particularly true when injury results from conduct that constitutes a radical departure from reasonable conduct. See Doe v. Linder, 845 S.W.2d 173, 179 (Tenn.1992); Roe v. Catholic Diocese, 950 S.W.2d 27, 31-32 (Tenn.Ct.App.1996). Id. at 221.

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§ 25.5     Duty of Railroad to Maintain Visibility at Crossings

The Case: Martin v. Norfolk Southern Railway Co., 271 S.W.3d 76 (Tenn. 2008).

The Basic Facts: This is a wrongful death case in which deceased plaintiff was killed when her vehicle was hit by a train at a railroad crossing. The defendants argued on appeal that “they [were] entitled to summary judgment because Tennessee courts do not allow recovery for a claim asserting that an obstruction on a railroad’s right-of-way prevented a motorist from seeing a train.” 271 S.W.3d at 82.

The Bottom Line:

• “As a preliminary matter, the defendants argue that they are entitled to summary judgment because Tennessee courts do not allow recovery for a claim asserting that an obstruction on a railroad's right-of-way prevented a motorist from seeing a train. In other words, the defendants contend that railroad companies do not have a duty to ensure that railroad crossings provide a reasonable degree of visibility to motorists. This argument is based on a case decided by our Court of Appeals in 1928. See Tenn. Cent. Ry. Co. v. Hayes, 9 Tenn.App. 116 (1928). In that case, the Court of Appeals stated, ‘Obstructions to vision are not an independent ground of recovery—certainly not, in this case when the defendant did not place them—but they must be considered upon the question of the proper degree of care and vigilance which the railroad company is bound to exercise in the running and management of its train and in giving warnings of its approach.’ Id. at 122.” Id.

• “This Court, however, has never approved of this holding. On the contrary, we have long recognized that railroads have a statutory and common-law duty to maintain adequate crossings for public highways. Tenn. Pub. Serv. Comm'n v. S. 83 Ry. Co., 554 S.W.2d 612, 613 [(Tenn. 1977)]; see also [Tenn. Code Ann. § 65-11-101(a) (2004)]. It is clear that Norfolk's operation of trains across public roadways necessarily involves a degree of risk to motorists, including Mrs. Martin. The creation of this risk necessarily entails the creation of a corresponding duty to take reasonable precautions to avoid injury to motorists. See Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 355 (Tenn. 2008). We therefore conclude that the duty to maintain an adequate crossing includes a duty to ensure that vegetation on the railroad's right-of-way does not unreasonably interfere with motorists' ability to perceive an oncoming train. ^FN2 To the extent Hayes is inconsistent with this holding, it is overruled. Accordingly, an injured party may recover for a claim based solely on a railroad's breach of its duty to ensure that vegetation on its right-of-way does not unreasonably obstruct motorists' view of approaching trains.” Id. at 82-83.

FN2 By recognizing this duty, it is not our intent to encroach upon federal authority to regulate the railroad industry. Federal regulations currently address the maintenance of vegetation "on or immediately adjacent to roadbed" and therefore preempt state efforts to regulate the maintenance of vegetation in that area. 49 C.F.R. § 213.37 (2007). Federal courts have recognized, however, that a railroad's right-of-way often extends several yards from the roadbed and that federal regulations do not preempt state regulation of vegetation that is on the railroad's right-of-way but not on or immediately adjacent to the roadbed. Mo. Pac. R.R. Co. v. R.R. Comm'n of Tex., 833 F.2d 570, 577 (5th Cir.1987); see also Shanklin v. Norfolk S. Ry. Co., 369 F.3d 978, 987-88 (6th Cir.2004). Accordingly, the duty we recognize today extends only to vegetation that is on the railroad's right-of-way but not on or immediately adjacent to the roadbed.

Other Sources of Note:     Tenn. Code Ann. § 65-11-101(a) (2004).

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§ 25.3     Duty Arising Because of Special Relationship

The Case:  Biscan v. Brown, 160 S.W.3d 462 (Tenn. 2005).

The Basic Facts: Plaintiff was injured in a car wreck after a party at defendant Worley’s house. Plaintiff was a minor and was under the influence of alcohol. She sued the driver of the car (Brown) and Worley.  

The Bottom Line: 

• “The general duty of care does not include an affirmative duty to act for the protection of another, however, ‘unless the defendant ‘stands in some special relationship to either the person who is the source of the danger, or to the person who is foreseeably at risk from the danger.’’ Turner, 957 S.W.2d at 818 (citing Bradshaw, 854 S.W.2d at 871); see also [Restatement (Second) of Torts § 315 (1965)] (hereinafter “[Restatement]”). The special relationship doctrine carves out an exception to the general rule that there is no duty to act for the protection of a third party. Bradshaw, 854 S.W.2d at 871; see also [Restatement] § 315. In other words, the doctrine recognizes that ‘‘certain socially recognized relations exist which constitute the basis for such legal duty.’’ Bradshaw, 854 S.W.2d at 871 (quoting [Fowler V. Harper & Posey M. Kime, The Duty to Control the Conduct of Another, 43 Yale L.J. 886, 887 (1934)]).^FN4

FN4 The [Restatement] envisions that such ‘socially recognized relations’ may include parent and child, employer and employee, and innkeeper and guest. See [Restatement] §§ 314-15. This list, published forty years ago, is illustrative, not exclusive.”

                160 S.W.3d at 478-79.

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§ 25.3     Duty Arising Because of Special Relationship

The Case:  Biscan v. Brown, 160 S.W.3d 462 (Tenn. 2005).

The Basic Facts: Plaintiff was injured in a car wreck after a party at defendant Worley’s house. Plaintiff was a minor and was under the influence of alcohol. She sued the driver of the car (Brown) and Worley.  

The Bottom Line: 

• “The general duty of care does not include an affirmative duty to act for the protection of another, however, ‘unless the defendant ‘stands in some special relationship to either the person who is the source of the danger, or to the person who is foreseeably at risk from the danger.’’ Turner, 957 S.W.2d at 818 (citing Bradshaw, 854 S.W.2d at 871); see also [Restatement (Second) of Torts § 315 (1965)] (hereinafter “[Restatement]”). The special relationship doctrine carves out an exception to the general rule that there is no duty to act for the protection of a third party. Bradshaw, 854 S.W.2d at 871; see also [Restatement] § 315. In other words, the doctrine recognizes that ‘‘certain socially recognized relations exist which constitute the basis for such legal duty.’’ Bradshaw, 854 S.W.2d at 871 (quoting [Fowler V. Harper & Posey M. Kime, The Duty to Control the Conduct of Another, 43 Yale L.J. 886, 887 (1934)]).^FN4

FN4 The [Restatement] envisions that such ‘socially recognized relations’ may include parent and child, employer and employee, and innkeeper and guest. See [Restatement] §§ 314-15. This list, published forty years ago, is illustrative, not exclusive.”

                160 S.W.3d at 478-79.

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§ 25.2     Designated Driver 

The Case: Downs v. Bush, 263 S.W.3d 812 (Tenn. 2008).

The Basic Facts: Minor out for a night for a night of drinking with friends. Plaintiff’s decedent became very intoxicated. After Plaintiff’s decedent died as a pedestrian as a result of being struck by two vehicles on a local interstate highway, his mother brought suit against his drinking companions for failing to provide for his safety. Included in her lawsuit was an allegation that Mr. Eller, as the designated driver, should have protected her son from harm.

The Bottom Line:

• “The plaintiff, however, posits that Mr. Eller owed Mr. Downs more than the customary duty to exercise reasonable care when driving the truck because he was a ‘designated driver.’ The plaintiff argues that ‘[t]here should be a duty for designated drivers to take affirmative actions to keep intoxicated passengers inside the passenger compartment of the vehicle and to ensure that the intoxicated passenger is not abandoned in a position of peril along the journey.’ We disagree with such a broad imposition of an affirmative duty of care because the public is better served by encouraging individuals to serve as designated drivers rather than adopting a policy that could potentially discourage the practice.” 263 S.W.3d at 824 (footnote omitted).

• “Designated drivers offer a valuable, but limited service to those who become intoxicated. Based on these public policy reasons, we hold as a matter of law that Mr. Eller owed a duty to exercise reasonable care in driving the vehicle and remaining sober while performing this service. Mr. Eller did not, however, assume an affirmative duty to aid or protect Mr. Downs merely because of his status as designated driver.” Id.

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§ 25.1     Generally

The Case: Burroughs v. Magee, 118 S.W.3d 323 (Tenn. 2003).

The Basic Facts: Plaintiff was injured and her husband was killed in an accident with a truck. Plaintiff brought an action for personal injury and wrongful death against the truck driver and against a doctor who had prescribed two medications to the truck driver. 

The Bottom Line: 

• “All persons have a duty to use reasonable care to refrain from conduct that will foreseeably cause injury to others. See Doe v. Linder Constr. Co., Inc., 845 S.W.2d 173, 178 (Tenn. 1992). Thus, it has been said that duty is the legal obligation that a defendant owes a plaintiff to conform to a reasonable person standard of care in order to protect against unreasonable risks of harm. Staples, 15 S.W.3d at 89; McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995). In assessing whether a duty is owed in a particular case, courts apply a balancing approach, based upon principles of fairness, to identify whether the risk to the plaintiff was unreasonable. Turner v. Jordan, 957 S.W.2d 815, 818 (Tenn. 1997). A ‘risk is unreasonable and gives rise to a duty to act with due care if the foreseeable probability and gravity of harm posed by defendant’s conduct outweigh the burden upon defendant to engage in alternative conduct that would have prevented the harm.’ McCall, 913 S.W.2d at 153. A number of factors are considered in making this determination, including:

the foreseeable probability of the harm or injury occurring; the possible magnitude of the potential harm or injury; the importance or social value of the activity engaged in by defendant; the usefulness of the conduct to defendant; the feasibility of alternative, safer conduct and the relative costs and burdens associated with that conduct; the relative usefulness of the safer conduct; and the relative safety of the alternative conduct.

Id.; see also Coln v. City of Savannah, 966 S.W.2d 34, 39 (Tenn. 1998).” 118 S.W.3d at 328-29.

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§ 24.9     Truth and Other Defenses

The Case:   Ali v. Moore, 984 S.W.2d 224 (Tenn. Ct. App. 1998).

The Basic Facts: Plaintiff sued defendants for defamation related to two television broadcasts.  

The Bottom Line: 

• “In order to support a claim for libel, a plaintiff carries the burden of proving that the statement was ‘false and defamatory.’ Gibbons v. Schwartz-Nobel, [928 S.W.2d 922, 927 (Tenn. Ct. App. 1996)]. In Stones River Motors, Inc. v. Mid-South Publ’g Co., [651 S.W.2d 713 (Tenn. Ct. App. 1983)], we stated:

The damaging words must be factually false. If they are true, or essentially true, they are not actionable, even though the published statement contains other   inaccuracies which are not damaging. Thus, the defense of truth applies so long as the ‘sting’ (or injurious part) of the statement is true. ... it is not necessary to prove the literal truth of the accusation in every detail, and that it is sufficient to show that the imputation is substantially true, or, as it is often put, to justify the ‘gist,’ the ‘sting,’ or the ‘substantial truth’ of the defamation....

[W. Prosser, Law of Torts, § 116, p. 798 (4th Ed. 1971)].  Stones River, 651 S.W.2d at 719-20.” 984 S.W.2d at 229.

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§ 24.8     Publication 

The Case: Sullivan v. Baptist Memorial Hosp., 995 S.W.2d 569 (Tenn. 1999).

The Basic Facts: The plaintiff, a nurse, was terminated from her position at a hospital for misappropriating property, which allegations the plaintiff disputed. Subsequently, she applied for positions at two other hospitals where she was required to reveal the reason she had been terminated from her previous position. Neither hospital hired her. 

The Bottom Line: 

• “‘Publication’ is a term of art meaning the communication of defamatory matter to a third person. Quality Auto Parts Co. v. Bluff City Buick Co., 876 S.W.2d 818, 821 (Tenn. 1994).” 995 S.W.2d at 571-72.

• “ThisCourt first considered the doctrine of self-publication in a non-employment context in Sylvis v. Miller, [33 S.W. 921 (Tenn. 1896)]. In Sylvis, the plaintiff received a defamatory letter through the mail which he opened and showed to several friends and relatives. The trial court instructed the jury that the plaintiff’s publication of defendant’s defamatory statements would not support a defamation action. On appeal, this Court reasoned that the ‘defendant is not answerable for anything the plaintiff may choose to do with the letter after it has once safely reached his hands,’ and held that ‘[i]f a person receives a letter containing libelous matter, he will not be justified in publishing it.’ Id. at 922.” Id. at 572.

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§ 24.7     Private Person vs. Public Figure

The Case: Hibdon v. Grabowski, 195 S.W.3d 48 (Tenn. Ct. App. 2005), perm. appeal denied (Mar. 27, 2006).

The Basic Facts: Plaintiff/Appellant owner of jet ski customizing business brought defamation action against defendants alleging libel, civil conspiracy and false light invasion of privacy stemming from statements defendants made about plaintiff, which were published on an Internet news group. 

The Bottom Line: 

• “Tennessee has adopted the standards in § 580A and 580B of the [Restatement (Second) of Torts (1977)], which establish the distinction between defamation as to a public official or public figure and defamation of a private person. Press, Inc. v. Verran, 569 S.W.2d 435, 442 (Tenn. 1978). As to a public figure, one can only be held liable if he or she knows that the statement is false and that it defames another person, or if he or she acts in reckless disregard of such matters. Id. at 442. As to a private person, he or she may be held liable if he or she knows that the statement is false and that it defames the person, or if he or she acts in reckless disregard of these matters, or acts negligently in failing to ascertain them. Id. at 442.” 195 S.W.3d at 58.

• “A public controversy is defined as a real dispute, the outcome of which affects the general public or some identifiable segment of the public in an appreciable way. See Waldbaum v. Fairchild Productions, Inc., 627 F.2d 1287, 1296 (D.C. Cir. 1980). The United States Supreme Court stated that courts may not question the legitimacy of the public’s concern on a particular issue because such an approach would run the danger of the turning the courts into censors of what information is relevant to self-government. Gertz, 418 U.S. at 346; Waldbaum, 627 F.2d at 1297. A vital part of free, wide-open, and robust public debate protected by the First Amendment to the United States Constitution is deciding what issues should be debated. No arm of the government, including the judiciary, should be able to set society’s agenda for public debate, consequently, the courts look to see what matters were already in dispute prior to the time when the alleged defamatory statements were made. In determining whether there is a public controversy, it is vital to ascertain whether the dispute existed as a public concern prior to the alleged defamatory comments.  Id.; Quigley v. Rosenthal, 43 F.Supp.2d 1163, 1176 (D. Col. 1999).” Id. at 59-60.

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§ 24.6     Judicial Privilege 

The Case: Myers v. Pickering Firm, Inc., 959 S.W.2d 152 (Tenn. Ct. App. 1997).

The Basic Facts: This is a defamation action related to errors in a report by an engineering and architectural firm. The plaintiffs were Myers and Klimek d/b/a MK Associates (“MK”).  

The Bottom Line: 

• “Tennessee has long recognized that statements made in the course of judicial proceedings are absolutely privileged. See, e.g., Lea v. White, 36 Tenn. (4 Sneed) 111, 114 (1856) (holding that statements made in a return to a writ of habeas corpus were absolutely privileged so as to bar a cause of action for libel). This absolute privilege also applies to statements made by witnesses in the course of judicial proceedings. See, e.g., Shadden v. McElwee, [5 S.W. 602 (Tenn. 1887)] (asserting that a witness is absolutely privileged as to all matters relevant to the issues in the case).” 959 S.W.2d at 159.

• “In Jones v. Trice, [360 S.W.2d 48 (Tenn. 1962)], the Tennessee Supreme Court discussed the absolute privilege applicable to judicial proceedings. In that case, Jones had attended a trial in which Trice was a defendant as executrix of an estate. Id. at 49. After a jury verdict against Trice, she moved for a new trial on the ground, inter alia, that Jones improperly influenced the jury in her case. Id. When Jones sued Trice for libel based on the allegations in her motion for a new trial, Trice demurred on the ground that the statements were absolutely privileged because they were made in the course of a judicial proceeding. Id. at 50.” Id.

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§ 24.5     Defamatory Statement

The Case: McWhorter v. Barre, 132 S.W.3d 354 (Tenn. Ct. App. 2003).

The Basic Facts: The plaintiff, a pilot, sued the defendant, another pilot, for defamation based on a letter written by the defendant to the Federal Aviation Administration, which alleged that the plaintiff was medically unfit to be a pilot.  

The Bottom Line: 

• “We next consider whether the Letter was defamatory. The question of whether the Letter was understood by its readers as defamatory is a question for the jury, but the preliminary determination of whether the Letter is ‘capable of being so understood is a question of law to be determined by the court.’ Memphis Publ’g Co. v. Nichols, 569 S.W.2d 412, 419 (Tenn. 1978) (emphasis in original). A trial court’s conclusions of law are subject to a de novo review with no presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).” 132 S.W.3d at 364.

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§ 24.4     Damages

The Case: Myers v. Pickering Firm, Inc., 959 S.W.2d 152 (Tenn. Ct. App. 1997). 

The Basic Facts: This is a defamation action related to errors in a report by an engineering and architectural firm. After a trial, the jury returned a verdict for the plaintiff in the amount of $600,000.00 in compensatory damages, and $100,000.00 in punitive damages.

The Bottom Line: 

• “Under Tennessee law, a plaintiff is required to prove actual damages in all defamation cases. Handley v. May, [588 S.W.2d 772, 776 (Tenn. Ct. App. 1979)]. The actual damage requirement was discussed by the United States Supreme Court in Gertz v. Robert Welch, Inc., [418 U.S. 323 (1974)]:

We need not define ‘actual injury,’ as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury.

[Id. at 349-50.]” 959 S.W.2d at 164.

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The Case: McWhorter v. Barre, 132 S.W.3d 354 (Tenn. Ct. App. 2003), perm. appeal denied (Mar. 8, 2004).

The Basic Facts: The plaintiff, a pilot, sued the defendant, another pilot, for defamation based on a letter written by the defendant to the Federal Aviation Administration, which alleged that the plaintiff was medically unfit to be a pilot. The defendant claimed he was conditionally privileged to make the statements.  

The Bottom Line: 

• “An occasion makes a publication conditionally privileged if the circumstances induce a correct or reasonable belief that

(a) there is information that affects a sufficiently important public interest, and

(b) the public interest requires the communication of the defamatory matter to a public officer or a private citizen who is authorized or privileged to take action if the defamatory matter is true.

Pate v. Service Merch. Co., Inc., 959 S.W.2d 569, 576 (Tenn. Ct. App. 1996) (quoting [Restatement (Second) of Torts § 598 (1977)].” 132 S.W.3d at 365.

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§ 24.2     Actual Malice

The Case: Tomlinson v. Kelley, 969 S.W.2d 402 (Tenn. Ct. App. 1997).

The Basic Facts: A mayor and a city manager filed a suit for defamation against two residents who publicly questioned the circumstances surrounding an interim appointment of an individual to the Board of Commissioners.  

The Bottom Line: 

• “Public figures who desire to pursue defamation actions bear a heavy burden of proof because of our society’s commitment to the principle that ‘debate on public issues should be uninhibited, robust, and wide-open.’ New York Times Co. v. Sullivan, [376 U.S. 254, 270 (1964)]. In order to recover damages, they must prove with convincing clarity^FN3 that the defendant acted with actual malice. See Press, Inc. v. Verran, 569 S.W.2d 435, 441 (Tenn. 1978); Moore v. Bailey, 628 S.W.2d 431, 433 (Tenn. Ct. App. 1981).

FN3 See McCluen v. Roane County Times, Inc., 936 S.W.2d 936, 939 (Tenn. Ct. App. 1996); Trigg v. Lakeway Publishers, Inc., 720 S.W.2d at 75.”

                969 S.W.2d at 405.

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§ 24.1     Generally              

The Case: Davis v. The Tennessean, 83 S.W.3d 125 (Tenn. Ct. App. 2001).

The Basic Facts: Plaintiff filed libel action against a newspaper alleging damage to his reputation resulting from the newspaper’s publication of a sentence in an article, which stated that he shot a man. His co-defendant had, in fact, killed the victim. 

The Bottom Line: 

• “Libel and slander are both forms of defamation; libel being written defamation and slander being spoken defamation. Quality Auto Parts Co., Inc. v. Bluff City Buick Co., Inc., 876 S.W.2d 818, 820 (Tenn. 1994).” 83 S.W.3d at 128.

• “To establish a prima facie case of defamation, the plaintiff must prove that (1) a party published a statement; (2) with knowledge that the statement was false and defaming to the other; or (3) with reckless disregard for the truth of the statement or with negligence in failing to ascertain the truth of the statement. Sullivan v. Baptist Mem’l Hosp., 995 S.W.2d 569, 571 (Tenn. 1999) (relying on Restatement (Second) of Torts § 580 B (1977)).” Id.

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§ 23.18 Recovery of Loss of Consortium Damages by Children for Injuries to Parent

The Case: Taylor v. Beard, 104 S.W.3d 507 (Tenn. 2003).

The Basic Facts: Plaintiffs, children of a woman injured in an automobile collision, brought suit, in part, to recover on a loss of parental consortium due to their mother’s injuries. 

The Bottom Line: 

• “We granted review to determine whether Tennessee should adopt a cause of action allowing a child to recover for loss of parental consortium due to an injury to the child’s parent.” 104 S.W.3d at 507.

• “After reviewing these decisions, we agree with those courts that have affirmed the value of parent-child relationships and we recognize that ‘[w]hen the vitally important parent-child relationship is impaired and the child loses the love, guidance and close companionship of a parent, the child is deprived of something that is indeed valuable and precious.’ Jordan, 984 S.W.2d at 601. The relevant question for us, however, is not the reality and magnitude of the child’s injury, but whether it is the judiciary’s role to create the proposed cause of action. In our view, the appellants do not simply request that we remove an impediment to the continual development of the common law, nor do they ask us to interpret an ambiguous statutory or constitutional provision. Rather, the appellants ask this Court to declare the public policy of this State by creating a previously unrecognized common law cause of action in an area where the legislature has taken action.” Id. at 510-11.

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§ 23.17 Punitive Damages

The Case: Hodges v. S.C. Toof and Company, 833 S.W.2d 896 (Tenn. 1992).

The Basic Facts: Plaintiff, a long-time employee of Defendant company, was fired after Plaintiff served jury duty for approximately three months. Plaintiff brought suit against Defendant, alleging a retaliatory discharge. 

The Bottom Line:

• “In Tennessee, therefore, a court may henceforth award punitive damages only if it finds a defendant has acted either (1) intentionally, (2) fraudulently, (3) maliciously, or (4) recklessly.” 833 S.W.2d at 901

• A person acts intentionally when it is the person’s conscious objective or desire to engage in the conduct or cause the result. Cf. [Tenn. Code Ann. § 39-11-302(a) (1991) (criminal definition of ‘intentional’)]. A person acts fraudulently when (1) the person intentionally misrepresents an existing, material fact or produces a false impression, in order to mislead another or to obtain an undue advantage, and (2) another is injured because of reasonable reliance on that misrepresentation. See First Nat’l Bank v. Brooks Farms, 821 S.W.2d 925, 927 (Tenn. 1991). A person acts maliciously when the person is motivated by ill will, hatred or personal spite. A person acts recklessly when the person is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances. Cf. [Tenn. Code Ann. § 39-11-302(c) (1991) (criminal definition of ‘reckless’)]. Id.

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§ 23.16 Property Damage

The Case: Merritt v. Nationwide Warehouse Co., Ltd.  605 S.W.2d 250, 252 (Tenn. Ct. App. 1980).

The Basic Facts: Plaintiff brought action against owner of a storage facility after Plaintiff’s personal property disappeared from the storage space rented by Plaintiff from Defendant. “Plaintiff locked the leased premises. Defendant was furnished no key. Plaintiff placed various items in the leased premises, but never informed defendant as to the nature or quantity of articles stored therein. Plaintiff was free to store or remove whatever he wished without consultation with, permission from, or notice to defendant.” 605 S.W.at 252.

The Bottom Line: 

• “A bailment is a delivery of personalty for a particular purpose or on mere deposit, on a contract expressed or implied, that after the purpose has been fulfilled, it shall be re-delivered to the person who delivered it or otherwise dealt with according to his direction or kept until he reclaims it. Rhodes v. Pioneer Parking Lot, Inc, [501 S.W.2d 569]; Dispeker v. New Southern Hotel Co., [373 S.W.2d 904 (Tenn. 1963)]; Breeding v. Elliott Bros., [118 S.W.2d 219 (Tenn. 1938)]; 8 C.J.S. Bailments § 1, p. 312.” Id. at 253.

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§ 23.15 Prejudgment Interest in Personal Injury Cases

The Case: Francois v. Willis, 205 S.W.3d 915 (Tenn. Ct. App. 2006).

The Basic Facts: The plaintiffs rejected the defendant’s offer of judgment in a personal injury case of $16,900.00. The case proceeded to trial and the jury returned a verdict for the plaintiffs. The court entered a judgment for the plaintiffs for $27,787.50 and denied the plaintiffs’ motion for prejudgment interest based on the $16,900.00 offer of judgment.

The Bottom Line:

• “The sole issue on this appeal is whether the trial court erred by declining to award Ms. Francois prejudgment interest on the ground that prejudgment interest is not available in personal injury cases” 205 S.W.3d at 916.

• “One of the legal principles firmly embedded in our jurisprudence is that prejudgment interest is not available in personal injury cases. The Tennessee Supreme Court first recognized this principle in Louisville & Nashville R.R. v. Wallace, [17 S.W. 882, 884 (Tenn. 1891)], and this court has recently reiterated it in no uncertain terms. Hollis v. Doerflinger, 137 S.W.3d at 630.^FN1

FN1 While other unreported decisions of this court are more equivocal about the availability of prejudgment interest in personal injury cases, [Tenn. S. Ct. R. 4(H)(2)] requires us to consider Hollis v. Doerflinger as ‘controlling authority.’ We also find it significant that the Tennessee Supreme Court directed that Hollis v. Doerflinger be published in accordance with [Tenn. S. Ct. R. 4(D)].”

                Id.

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§ 23.14 Personal Injury Damages

The Case: Overstreet v. Shoney’s Inc., 4 S.W.3d 694 (Tenn. Ct. App. 1999).

The Basic Facts: Plaintiff was a patron at Defendant restaurant when she was blinded by a glass shard after a waitress dropped a plate near her. Plaintiff subsequently brought a negligence action against Defendant restaurant and the waitress who dropped the plate. 

The Bottom Line: 

• “The purpose of tort damages in Anglo-American law is to compensate the wronged party for damage or injury caused by the defendant’s conduct. Inland Container Corp. v. March, 529 S.W.2d 43, 44 (Tenn. 1975); Louisville, Nashville & Great Southern R.R. v. Guinan, 79 Tenn. 98, 103 (1883); Vertrees v. Tennessee Auto Corp., 5 Tenn. App. 140, 151 (1927). The goal of awarding damages is to repair the wronged party’s injury or, at least, to make the wronged party whole as nearly as may be done by an award of money. See [Restatement (Second) of Torts §§ 901, cmt. a (1979)]; 4 [Fowler V. Harper, et al., The Law of Torts §§ 25.1, at 493 (2d ed. 1986)] (‘Harper’).” 4 S.W.3d at 703.

• “The party seeking damages has the burden of proving them. See Inman v. Union Planters Nat’l Bank, 634 S.W.2d 270, 272 (Tenn. Ct. App. 1982). In tort cases, the proof of damages need not be exact or mathematically precise. Provident Life & Accident Ins. Co. v. Globe Indem. Co., [3 S.W.2d 1057, 1058 (Tenn. 1928)]; Airline Constr. Inc. v. Barr, 807 S.W.2d 247, 274 (Tenn. Ct. App. 1990). Rather, the proof must be as certain as the nature of the case permits and must enable the trier of fact to make a fair and reasonable assessment of the damages. Pinson & Assocs. Ins. Agency, Inc. v. Kreal, 800 S.W.2d 486, 488 (Tenn. Ct. App. 1990); Wilson v. Farmers Chem. Ass’n, [444 S.W.2d 185, 189 (Tenn. Ct. App. 1969)]. The amount of damages is not controlled by fixed rules of law, Blalock v. Temple, 276 S.W.2d 493, 497 (Tenn. Ct. App. 1954)], or mathematical formulas. Brown v. Null, 863 S.W.2d 425, 429-30 (Tenn. Ct. App. 1993). It is instead left to the sound discretion of the trier of fact. Reeves v. Catignani, 7 S.W.2d 38, 39-40 (Tenn. 1928)]; Sholodge Franchise Sys., Inc. v. McKibbon Bros., Inc., 919 S.W.2d 36, 42 (Tenn. Ct. App. 1995).” Id.

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§ 23.13 Mitigation of Damages

The Case: Memphis Light, Gas & Water Division v. Starkey, 244 S.W.3d 344 (Tenn. Ct. App. 2007), perm. appeal denied, (Nov. 19, 2007).

The Basic Facts: This is a case involving wrongful interference with an easement. On appeal, the defendant raised the issue of whether the trial court erred in failing to consider whether the plaintiff mitigated its damages.

The Bottom Line:

• “The first issue presented in this appeal concerns the mitigation of damages. The doctrine of mitigation of damages dictates that,

one who is injured by the wrongful or negligent act of another, whether by tort or breach of contract, is bound to exercise reasonable care and diligence to avoid loss or to minimize or lessen the resulting damage, and to the extent that damages are the result of his active and unreasonable enhancement thereof, or due to his failure to exercise such care and diligence, he cannot recover.

Cook & Nichols, Inc. v. Peat, Marwick, Mitchell & Co., 480 S.W.2d 542, 545 [(Tenn. Ct. App. 1971)]. Thus, a party injured by the wrongful act of another is under a legal duty to use reasonable efforts to minimize the loss and, to the extent that the injured party fails to do so, he or she cannot recover. Id.; see also Kline v. Benefiel, No. W1999-00918-00A-R3-CV, 2001 WL 25750, at *7 [(Tenn. Ct. App. Jan.9, 2001)]. The injured party is not, however, required to mitigate damages where the duty would impose an undue burden or be impossible under the circumstances. See Kline, 2001 WL 25750, at *7 (citing Cummins v. Brodie, 667 S.W.2d 759, 766 (Tenn. Ct.App.1983)).” 244 S.W.3d at 353.

Other Sources of Note:   Smith v. Gore, 728 S.W.2d 738 (Tenn. 1987) (holding plaintiff has no duty to mitigate damages in wrongful pregnancy case by considering alternatives to child rearing, such as abortion or adoption; observing that where plaintiff does choose to terminate the pregnancy, the cost of the abortion is a proper element of damages; further observing that some cases may justify consideration of plaintiff’s struggle in deciding between the options of rearing the child, placing the child for adoption, or terminating the pregnancy in determining damages for emotional distress).

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§ 23.12 Loss of Consortium (Personal Injury Cases)

The Case: Hunley v. Silver Furniture Mfg. Co., 38 S.W.3d 555 (Tenn. 2001).

The Basic Facts: This is a declaratory judgment action in which the claimants sought a declaration that the wife’s loss of consortium claim related to injuries sustained as a result of her husband’s work-related injury is not subject to a workers’ compensation lien. 

The Bottom Line: 

• “It is derivative in the sense that Mrs. Hunley’s loss of consortium claim originates from Mr. Hunley’s claim for his personal injuries.” 38 S.W.3d at 557.

• “We have held, however, that loss of consortium is ‘‘a separate claim from that of an injured spouse.’’ Tuggle, 922 S.W.2d at 108 (Tenn. 1996) (quoting Jackson v. Miller, 776 S.W.2d 115, 117 (Tenn. Ct. App. 1989)). The Court of Appeals has also held that ‘[t]he right to recover for loss of consortium is a right independent of the spouse’s right to recover for the injuries themselves.’ Swafford v. City of Chattanooga, 743 S.W.2d 174, 178 (Tenn. Ct. App. 1987); see also Tuggle, 922 S.W.2d at 108 (citing Swafford with approval). These cases recognize that a spouse’s loss of consortium claim is a distinct cause of action vested solely in the spouse.” Id. at 557-58.

Other Sources of Note: Correll v. E.I. DuPont de Nemours & Co., 207 S.W.3d 751 (Tenn. 2006). (workers’ compensation statutes do allow for death benefits to be paid, and thus any recovery from a third-party tortfeasor for wrongful death is subject to subrogation liens by the employer); Taylor v. Beard, 104 S.W.3d 507 (Tenn. 2003), petition for reh’g denied, (May 2, 2003) (declining to create common law cause of action for loss of parental consortium in personal injury cases); Tuggle v. Allright Parking Systems, Inc., 922 S.W.2d 105 (Tenn. 1996) (adopting majority view that fault of physically injured spouse reduces or bars recovery of other spouse); Jackson v. Miller, 776 S.W.2d 115, 116-17 (Tenn. Ct. App. 1989) (defining consortium as “‘the conjugal fellowship of husband and wife, and the right of each to the company, cooperation, affection and aid of the other in every conjugal relation’” (quoting Manning v. Altec, Inc., 488 F.2d 127, 132 (6th Cir. 1973)); Swafford v. City of Chattanooga, 743 S.W.2d 174, 178 (Tenn. Ct. App. 1987) (loss of consortium claim is a separate claim for purpose of the damage cap in a GTLA action).

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§ 23.11 Loss of Consortium Claim for the Death of a Child

The Case: Hancock v. Chattanooga-Hamilton County, 54 S.W.3d 234 (Tenn. 2001).

The Basic Facts: Plaintiffs brought a wrongful death action against the hospital and doctor their child died while in Defendants’ care. Plaintiffs later moved to amend their complaint to include a loss of consortium claim. 

The Bottom Line:

• “We granted appeal to determine 1) whether filial consortium losses are recoverable in wrongful death actions; and 2) whether the medical malpractice statute of repose, Tenn. Code Ann. § 29‑26‑116, bars the plaintiffs’ amendment to the complaint to include consortium damages. We hold that (1) filial consortium damages are recoverable under Tenn. Code Ann. § 20‑5‑113 in wrongful death actions; and (2) the plaintiffs’ amendment to the complaint to include consortium damages does not state a new cause of action and is therefore not barred by Tenn. Code Ann. § 29‑26‑116.” 54 S.W.3d at 234.

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§ 23.10 Itemization on Verdict Form

The Case: Overstreet v. Shoney’s Inc., 4 S.W.3d 694 (Tenn. Ct. App. 1999).

The Basic Facts: Plaintiff was a patron at Defendant restaurant when she was blinded by a glass shard after a waitress dropped a plate near her. Plaintiff subsequently brought a negligence action against Defendant restaurant and the waitress who dropped the plate. 

The Bottom Line: 

• “Shoney’s also insists that the itemization of damages on the verdict form permitted the jury to award duplicative damages. Specifically, it asserts that the damages for pain and suffering, disfigurement, and loss of capacity to enjoy life overlap. Ms. Overstreet responds that Shoney’s should not be permitted to raise this issue on appeal because it did not take issue with the trial court’s jury instructions on damages. We will first consider whether [Tenn. R. App. P. 36(a)] prevents Shoney’s from raising this issue on appeal. It would have been better practice had Shoney’s taken issue with the trial court’s damage instructions or requested additional instructions concerning the components of each element of damage and a complete instruction patterned after T.P.I. 3 - Civil 14.01. However, we have determined that not raising these matters with the trial court does not prevent Shoney’s from challenging the verdict form. The verdict form, more so than the instructions themselves, emphasizes the jury’s prerogative to assign a separate monetary loss for each type of damages requested by Ms. Overstreet. Thus, notwithstanding the trial court’s use of the term ‘if any’ in its instructions and the verdict form, the verdict form is more conducive to duplicate, overlapping damage awards if the different measures of damages listed on the form actually overlap. We have determined, however, that the different measures of damages sought by Ms. Overstreet represent separate and distinct losses.” 4 S.W.3d at 714-715 (footnote omitted).

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§ 23.9     Impact of Death of Plaintiff After Verdict 

The Case: Duran v. Hyundai Motor America, Inc., 271 S.W.3d 178 (Tenn. App. 2008).

The Basic Facts: Plaintiff was injured in a fire in her home. The jury determined the origin of fire was a car manufactured by defendants. The jury returned a verdict in favor of plaintiff. Plaintiff died four months after trial, and defendants sought review of a damages award because it was based on evidence of plaintiff’s life expectancy at trial that was much longer than four months. 

The Bottom Line: 

• “While Ms. Cook’s death is undisputed, the Hyundai defendants’ purpose in presenting this fact for consideration is not ‘unrelated to the merits.’ To the contrary, they are essentially asking this court for a retrial on damages based on the fact, only known post-judgment, that Ms. Cook did not reach her estimated life-expectancy. This is simply not the intended purpose of Tenn. R. App. P. 14. Duncan v. Duncan, 672 S.W.2d 765, 767-68 (Tenn. 1984) (holding that Tenn. R. App. P. 14 cannot be used to relitigate an issue at the appellate level based on facts occurring after the entry of the judgment).” 271 S.W.3d at 213.

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§ 23.8     Election of Treble vs. Punitive Damages

The Case: Concrete Spaces, Inc. v. Sender, 2 S.W.3d 901 (Tenn. 1999).

The Basic Facts: Plaintiffs sought compensatory, punitive and treble damages in action for breach of contract, negligent misrepresentation, fraudulent misrepresentation and violation of the Tennessee Consumer Protection Act. Plaintiffs’ claims were based on alleged deception by defendants regarding the quality and availability of space in Cummins Station and on defendants’ alleged intentional and systematic plan of harassment and lack of cooperation carried out to force the plaintiffs to abandon their leases so that the defendants could lease the space to others on more favorable terms. Plaintiff prevailed and defendants appealed because punitive damages and treble damages may not be recovered in the same action. The Court of Appeals vacated the award of punitive damages and remanded for a determination of whether the compensatory damage award should be trebled in accordance with the Consumer Protection Act. 

The Bottom Line:

• “We granted this appeal to address the application of the election of remedies doctrine in Tennessee and to clarify the proper procedure to be implemented when a plaintiff is entitled to both punitive damages in conjunction with a common law claim and to multiple damages pursuant to a statutory remedy. We have determined that a plaintiff is entitled to a calculation of the amount of punitive damages and multiple damages that are warranted under each theory of liability. Only after these assessments are made is the plaintiff required to make an election of remedies. Because this procedure was not implemented in this case, we remand the cause to the trial court for a new trial.” 2 S.W.3d at 903.

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§ 23.7     Election of Punitive Damages and TCPA Fees

The Case: Miller v. United Automax, 166 S.W.3d 692 (Tenn. 2005).

The Basic Facts: Plaintiffs were purchasers of a used automobile who brought an action for misrepresentation and violations of the Tennessee Consumer Protection Act (TCPA) against the seller of the automobile due to damage to the automobile which Plaintiff claims existed prior to the sale and went undisclosed to her by Defendant.  

The Bottom Line: 

• “Plaintiffs argue that they are entitled to both punitive damages and attorney’s fees because the two remedies are not inconsistent with each other nor do they provide double redress for a single wrong. Plaintiffs reason that the only election that needed to be made was between the award of treble damages and punitive damages, and not between the entire elements and remedies of each theory of recovery. Defendant responds that the election was essentially between the two verdicts with their respective recovery schemes, and because Plaintiffs chose punitive damages under the common law claim, they could not also receive the attorney’s fees that would be available under the Act. We agree with Plaintiffs.” 166 S.W.3d at 696.

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§ 23.6     Damages for Lost Profits

The Case: Waggoner Motors, Inc. v. Waverly Church of Christ, 159 S.W.3d 42 (Tenn. Ct. App. 2004), perm. appeal denied (Feb. 28. 2005).

The Basic Facts: Church was being repainted. Overspray caused damage to vehicles at nearby dealership.  

The Bottom Line: 

• “The purpose of compensatory damages is to compensate a party for the loss or injury caused by a wrongdoer’s conduct. Inland Container Corp. v. March, 529 S.W.2d 43, 44 (Tenn. 1975); Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 703 (Tenn. Ct. App. 1999). The goal is to restore the injured party, as nearly as possible, to the position the party would have been in had the wrongful conduct not occurred. Beaty v. McGraw, 15 S.W.3d 819, 828-29 (Tenn. Ct. App. 1998). The injured party should be fully compensated for all losses caused by the wrongdoer’s conduct. General Constr. Contractors Ass’n, Inc. v. Greater St. Thomas Baptist Church, 107 S.W.3d 513, 526 (Tenn. Ct. App. 2002).” 159 S.W.3d at 57.

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§ 23.5     Damages In Cases Involving Death of Spouse or Parent

The Case: Jordan v. Baptist Three Rivers Hospital, 984 S.W.2d 593 (Tenn. 1999).

The Basic Facts: Daughter brought wrongful death claim against hospital and doctors. She sought to recover damages for the loss of the relationship between her and decedent. 

The Bottom Line: 

• “Tennessee’s approach to providing a remedy for death resulting from personal injury is a hybrid between survival and wrongful death statutes, resulting in a statutory scheme with a ‘split personality.’ 27 Tenn. L. Rev. at 454. The pertinent damages statute, Tenn. Code Ann. § 20-5-113, has been in existence in one form or another since 1883. It provides:

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.

                [Tenn. Code Ann. § 20-5-113] (emphasis added).” 984 S.W.2d at 598 (footnote omitted).

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§ 23.4     Damage Award In Excess of Ad Damnum

The Case: Mohr v. DaimlerChrysler Corp., 2008 WL 4613584 (Tenn. Ct. App. Oct. 14, 2008).

The Basic Facts: Plaintiffs tried products claim against manufacturer of mini-van. During trial (after the jury awarded compensatory damages but before it considered punitive damages) plaintiffs moved to increase ad damnum amount.

The Bottom Line: 

• “This Court has held that a jury may not award damages to a single plaintiff that exceeds the amount that plaintiff sued for even though the award is within the aggregate amount sought for all plaintiffs. Hansen v. Bultman, 2002 WL 31780680, *2-3 (Tenn. Ct. App. Dec.13, 2002).” 2008 WL 4613584 at *15. 

• “DCC argues that the Court lacked the authority to allow the amendment because Rule 15.02 Tenn. Rule Civ. Pro. prohibits post-verdict amendments increasing the amount sued for.

We are persuaded that allowing the amendment was within the discretion of the trial judge. Merriman v. Smith, 599 S.W.2d 548 (Tenn. Ct. App. 1979). The amendment was not allowed post-verdict. It came after the compensatory damage verdict but before the trial on the amount of punitive damages. Therefore, the motion to amend came at a time when the trial judge still had the power to allow the amendment.” Id. at 15-16.

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§ 23.3      Collateral Source Rule

The Case: Fye v. Kennedy, 991 S.W.2d 754 (Tenn. Ct. App. 1998), perm app. denied, (Dec. 21, 1998).

The Basic Facts: This is a wrongful death case arising out of a automobile accident. After a jury verdict in favor of the plaintiffs, defendants appealed. Plaintiffs also raised the issue on appeal of whether “the trial court improperly applied the collateral source rule in determining the amount of damages to which plaintiff was entitled.” 991 S.W.2d at 756.

The Bottom Line:

• “An injured party's right to recover his or her "reasonable and necessary expenses" must be viewed in connection with the collateral source rule:

Normally, of course, in an action for damages in tort, the fact that the plaintiff has received payments from a collateral source, other than the defendant, is not admissible in evidence and does not reduce or mitigate the defendant's liability.

Donnell v. Donnell, [415 S.W.2d 127, 134 (Tenn. 1967)]. See also Steele v. Ft. Sanders Anesthesia Group, P.C., 897 S.W.2d 270, 282 [(Tenn. Ct. App. 1994)].” Id. at 763.

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§ 23.2     Benefit of the Bargain Rule

The Case: Haynes v. Cumberland Builders, Inc., 546 S.W.2d 228 (Tenn. Ct. App. 1976).

The Basic Facts: Plaintiff alleged that he was injured as a result of defendant’s fraudulent misrepresentation in a land sales transaction.

The Bottom Line:

• “In an action for damages caused by a fraudulent misrepresentation, the proper measure of the plaintiffs’ general damages is the benefit of the bargain rule. Ford Motor Co. v. Lonon, [398 S.W.2d 240 (Tenn. 1966)]; Shwab v. Walters, supra; Augur v. Smith, [18 S.W. 398 (Tenn. 1891)] and Hogg v. Cardwell, 36 Tenn. 151 (1856). This measure of damages allows the plaintiff to recover the difference between the actual value of the property be received at the time of the making of the contract and the value that the property would have possessed if Appleton’s representations had been true. 37 Am.Jur.2d, Fraud and Deceit, § 353, p. 473 (1968); see Shwab v. Walters, supra; 13 A.L.R.3d, Damages--Fraudulent Representation, § 3, p. 885 (1967). The application of this measure of damages compels the defendant to make good on the false representations. The measure of damages and the fixing of the value of the property are to be determined as of the time of the transaction. 37 Am.Jur.2d, § 365, p. 495 (1968); 13 A.L.R.3d, §§ 2--3, pp. 882--902 (1967); McCormick on Damages, § 122, pp. 456--457 (1935).” 546 S.W.2d at 233.

• “The plaintiff has the burden of proving both values applied in the formula which measures his general damages, the actual value of the property at the time of the contract and the value of the property if it had been as it was represented to him. In a land sale transaction, the contract price is strong evidence of what would have been the value of the land had it been as represented. 37 Am.Jur.2d, § 353, p. 476; see 13 A.L.R.3d, § 2, pp. 882--884 (1967).” Id.  at 233-34.

Other Sources of Note: Rose v. City of Covington, 634 S.W.2d 268 (Tenn. 1982) (same rule applies in cases of negligent representation, and also includes “incidental” damages; “incidental” damages are not defined).

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§ 23.1     Aggravation of a Pre-existing Condition

The Case: Haws v. Bullock, 592 S.W.2d 588 (Tenn. Ct. App. 1979).

The Basic Facts: Plaintiff, who was hurt in an automobile accident, sought a recovery for aggravation of a pre-existing condition.

The Bottom Line: 

• “This appeal presents the issue of whether an injured person may recover from a tort feasor, as an element of damages, for determinable pre-existing disabilities where the injury has aggravated and increased the pre-existing disability.” 592 S.W.2d at 589-90.

• “Where the tortfeasor’s negligence has rendered it impossible to apportion the amount of disability caused by the pre-existing condition and that caused by the subsequent injury, it is generally held that the defendant is liable for the total damages for the injuries whether the injuries were for new ones or aggravation of a pre-existing condition. Matsumoto v. Kaku, [484 P.2d 147 (Haw. 1971)]; Newbury v. Vogel, [379 P.2d 811 (Colo. 1963)]. But the jury must, if possible, apportion the amount of disability and pain between that caused by the pre-existing condition and that caused by the accident. Stephens v. Koch, [561 P.2d 333 (Colo. 1977)].” Id. at 591.

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§ 21.1     Generally

The Case: H & M Enterprises, Inc. v. Murray, No. M1999-02073-COA-R3-CV, 2002 WL 598556 (Tenn. Ct. App. 2002).

The Basic Facts: Plaintiff filed suit to recover damages from former employee’s embezzlement. The embezzler’s spouse appealed, asserting that he should not be deemed jointly and severally liable for his wife’s conversion.

The Bottom Line: 

• “Conversion is the appropriation of tangible property to a party’s own use in exclusion or defiance of the owner’s rights. Barger v. Webb, [391 S.W.2d 664, 665 (Tenn. 1965)]; Lance Prods., Inc. v. Commerce Union Bank, 764 S.W.2d 207, 211 (Tenn. Ct. App. 1988). Conversion is an intentional tort, and a party seeking to make out a prima facie case of conversion must prove (1) the appropriation of another’s property to one’s own use and benefit, (2) by the intentional exercise of dominion over it, (3) in defiance of the true owner’s rights. Kinnard v. Shoney’s, Inc., 100 F. Supp. 2d 781, 797 (M.D. Tenn. 2000); Mammoth Cave Prod. Credit Ass’n v. Oldham, 569 S.W.2d 833, 836 (Tenn. Ct. App. 1977).” 2002 WL 598556 at *3.

• “Property may be converted in three ways. First, a person may personally dispossess^FN1 another of tangible personalty. [Restatement (Second) of Torts] § 223(a) (1965).

FN1 ^‘Dispossess’ means to intentionally take tangible personal property without the owner’s consent and includes obtaining possession by fraud. [Restatement (Second) of Torts] § 221.”

              Id.

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§ 19.2     Conspiracy Is Not A Cause of Action  

The Case: Foster Business Park, LLC. v. Winfree, 2009 WL 113242 (Tenn. Ct. App. Jan. 15, 2009).

The Basic Facts: Surti, an owner of the Plaintiff Foster Business Park, LLC, alleged two defendants conspired with another to gain access to confidential information.

The Bottom Line: 

• “‘An actionable civil conspiracy is a combination of two or more persons who, each having the intent and knowledge of the other’s intent, accomplish by concert an unlawful purpose, or accomplish a lawful purpose by unlawful means, which results in damage to the plaintiff.’ Trau-Med of America, Inc., 71 S.W.3d at 703; see Brown v. Birman Managed Care, Inc., 42 S.W.3d 62, 67 (Tenn. 2001) (citing Dale v. Thomas H. Temple Co., 208 S.W.2d 344, 353 (Tenn. 1948)). The elements for civil conspiracy under Tennessee common law, therefore, are: (1) a common design between two or more persons; (2) to accomplish by concerted action an unlawful purpose, or a lawful purpose by unlawful means; (3) an overt act in furtherance of the conspiracy; and (4) injury to person or property resulting in attendant damage. Braswell v. Carothers, 863 S.W.2d 722, 727 (Tenn. Ct. App. 1993). In addition, civil conspiracy requires an underlying predicate tort allegedly committed pursuant to the conspiracy. Morgan v. Brush Wellman, Inc., 165 F.Supp.2d 704, 721 (E.D. Tenn. 2001) (citing Tenn. Publ’g Co. v. Fitzhugh, 52 S.W.2d 157, 158 (Tenn. 1932)).” 2009 WL 113242at *16.

• “Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. Freeman Mgmt. Corp. v. Shurgard Storage Centers, LLC., 461 F.Supp.2d 629, 642-643 (M.D. Tenn. 2006). By participating in a civil conspiracy, a coconspirator effectively adopts as his or her own the torts of other coconspirators within the ambit of the conspiracy. In this way, a coconspirator incurs tort liability co-equal with the immediate tortfeasors. Id.; see also Applied Equipment Corp. v. Litton Saudi Arabia Ltd., 869 P.2d 454, 457 (Cal. 1994); Accord. Beck v. Prupis, 529 U.S. 494, 503 (2000) (noting it was “sometimes said that a conspiracy claim was not an independent cause of action, but was only the mechanism for subjecting co-conspirators to liability when one of their members committed a tortious act”).” Id.

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§ 19.3     Intracorporate Conspiracy Doctrine

The Case:  Trau-Med of America, Inc. v. Allstate Insurance Co., 71 S.W.3d 691 (Tenn. 2002).

The Basic Facts: Plaintiff sued Allstate saying that it was engaged in various practices designed to hurt its business operations. Among the claims alleged was civil conspiracy.

The Bottom Line:

• “Finally, Trau-Med also alleges that Allstate Insurance Company, through its employees, representatives, agents, and attorneys, engaged in a civil conspiracy ‘for the purpose of destroying [Trau-Med’s] reputation, business and clinic.’ Specifically, Allstate’s agents purportedly conspired to deter attorneys representing indigent claimants from referring their clients to Trau-Med. First, Trau-Med asserts that a ‘hit list’ was circulated among Allstate’s agents and employees, indicating those clinics, including Trau-Med, being targeted for destruction. Relying on this list, the insurance company’s agents and employees conveyed to plaintiffs’ attorneys that Allstate ‘will get [Trau-Med],’ or that Trau-Med is ‘next,’ with the design to deter these attorneys from referring their clients to Trau-Med. The result has been the destruction of Trau-Med’s business. In response to these allegations, Allstate argues that the claim fails because it does not allege the requisite plurality of legal actors necessary for a finding of conspiracy.” 71 S.W.3d at 702.

• “An actionable civil conspiracy is a combination of two or more persons who, each having the intent and knowledge of the other’s intent, accomplish by concert an unlawful purpose, or accomplish a lawful purpose by unlawful means, which results in damage to the plaintiff. See Brown v. Birman Managed Care, Inc., 42 S.W.3d 62, 67 (Tenn. 2001) (citing Dale v. Thomas H. Temple Co., 208 S.W.2d 344, 353 (Tenn. 1948)]). Upon a finding of conspiracy, each conspirator is liable for the damages resulting from the wrongful acts of all co-conspirators in carrying out the common scheme. Id.” Id. at 703.

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§ 19.1     Generally

The Case: Brown v. Birman Managed Care, 42 S.W.3d 62 (Tenn. 2001).

The Basic Facts: Brown alleged that the defendant, her ex-husband’s employer engaged in a conspiracy with her ex-husband to help him avoid his proper child support obligation. 

The Bottom Line:

• “We have very recently discussed the common law action of conspiracy to defraud. Chenault v. Walker, 36 S.W.3d 45 (Tenn. 2001) (upholding the validity of the conspiracy theory of personal jurisdiction). This tort is defined as a ‘combination between two or more persons to accomplish by concert an unlawful purpose, or to accomplish a purpose not in itself unlawful by unlawful means.’ Id. (quoting Dale v. Thomas H. Temple Co., [208 S.W.2d 344, 353 (Tenn. 1948)]); Huckeby v. Spangler, 521 S.W.2d 568, 573 (Tenn. 1975); Braswell v. Carothers, 863 S.W.2d 722, 727 (Tenn. Ct. App. 1993); Kirksey v. Overton Pub, Inc., 739 S.W.2d 230, 236 (Tenn. Ct. App. 1987). Each conspirator must have the intent to accomplish this common purpose, and each must know of the other’s intent. Dale, [208 S.W.2d at 353-54]. The agreement ‘need not be formal, the understanding may be a tacit one, and it is not essential that each conspirator have knowledge of the details of the conspiracy.’ Id. Finally, ‘it is [a] basic principle that each conspirator is responsible for everything done by his confederate which the execution of the common design makes probable as a consequence’; in other words, each conspirator is liable for the damage caused by the other. [Id.; 208 S.W.2d at 354]; accord Huckeby, 521 S.W.2d at 573-74.” 42 S.W.3d at 67.

Other Sources of Note: Trau-Med of America, Inc. v. Allstate Insurance Co., 71 S.W.3d 691 (Tenn. 2002) (finding the intracorporate conspiracy doctrine barred recovery for civil conspiracy given facts as alleged); Levy v. Franks, 159 S.W.3d 66, 82 (Tenn. Ct. App. 2004) (dismissal of malicious harassment claim required dismissal of civil conspiracy claim based on conspiracy to violate the malicious harassment statute because “[i]t cannot be that a conspiracy to do a thing is actionable when the thing itself would not be.” (citations omitted)); Morgan v. Brush Wellman, Inc., 165 F.Supp.2d 704, 721 (E.D. Tenn. 2001) (civil conspiracy requires an underlying predicate tort allegedly committed pursuant to the conspiracy) (citing Tenn. Publ’g Co. v. Fitzhugh, 52 S.W.2d 157, 158 (Tenn. 1932); Forrester v. Stockstill, 869 S.W.2d 328, 330 (Tenn. 1994) (one cannot conspire to induce breach of its own contract).

Recent Cases: Morris v. Grusin, No. W2009-00033-COA-R3-CV, 2009 WL 4931324 (Tenn. Ct. App. Dec. 22, 2009) (upholding dismissal of conspiracy claim where appellant did not challenge on appeal that defendants’ underlying actions were lawful); Sanford v. Waugh, No. M2007-02528-COA-R3-CV, 2009 WL 1910957 (Tenn. Ct. App. June 30, 2009) (reversing trial court’s dismissal of civil conspiracy claim finding underlying tort was sufficiently pled); Amodeo v. Conservcare, LLC, No. W2007-02610-COA-R3-CV, 2009 WL 736656 (Tenn. Ct. App. Mar. 20, 2009) (upholding summary judgment on civil conspiracy claim finding no conspiracy occurred); Runions v. Tennessee State University, No. M2008-01574-COA-R3-CV, 2009 WL 1939816 (Tenn. Ct. App. Feb. 17, 2009) (upholding dismissal of civil conspiracy to commit battery claim where court found there was no underlying battery); Foster Business Park, LLC v. Winfree, No. M2006-2340-COA-R3-CV, 2009 WL 113242 (Tenn. Ct. App. Jan. 15, 2009) (affirming summary judgment on civil conspiracy claims where underlying torts were dismissed); O’Dell v. O’Dell, No. E2007-02619-COA-R3-CV, No. 2008 WL 3875434 (Tenn. Ct. App. Aug. 21, 2008) (upholding dismissal of claim for conspiracy finding none of acts complained of constitute either an unlawful purpose or unlawful means); Watson’s Carpet and Floor Coverings, Inc. v. McCormick, 247 S.W.3d 169 (Tenn. Ct. App. 2007) (holding there could be no liability for conspiracy on part of competing supplier to interfere with supplier’s relationship with customer where manufacturer’s refusal to sell a specific brand of carpet to supplier was privileged and therefore not tortious; there can be no conspiracy to do what the manufacturer was legally entitled to do).

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§ 18.2     Actions Against the State of Tennessee

The Case: Northland Ins. Co. v. State, 33 S.W.3d 727 (Tenn. 2000).

The Basic Facts:  Northland’s insured negligently caused the death of one man and injuries to two others. Northland made payments to the family of the decedent and to the two injured persons and then sought indemnity and contribution from the State of Tennessee, alleging that its negligence caused or contributed to cause the death and injuries.

The Bottom Line:

• “Article I, section 17 of the Tennessee Constitution provides that ‘[s]uits may be brought against the State in such manner and in such courts as the Legislature may by law direct.’ This constitutional provision reflects sovereign immunity, the notion that a sovereign governmental entity cannot be sued in its own courts without its consent. See State v. Cook, [106 S.W.2d 858, 860 (Tenn. 1937)]; Tenn. Code Ann. § 20-13-102 (‘No court in the state shall have any power, jurisdiction, or authority to entertain any suit against the state...with a view to reach the state, its treasury, funds, or property...’). As a general interpretive matter, this Court has held that the principle of sovereign immunity requires that legislation authorizing suits against the state must provide for the state’s consent in ‘plain, clear, and unmistakable’ terms. Cook, [106 S.W.2d at 861]; see also Beare Company v. Olsen, 711 S.W.2d 603, 605 (Tenn. 1986). We must therefore carefully analyze the statute granting jurisdiction to the Tennessee Claims Commission, which this Court has previously held creates a ‘sweeping procedure for filing monetary claims against the state.’ Hembree v. State, 925 S.W.2d 513, 516 (Tenn. 1996).” 33 S.W.3d at 729.

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§ 18.1     Generally

The Case: General Electric Co. v. Process Control Co., 969 S.W.2d 914 (Tenn. 1998).

The Basic Facts: Huskey, a Wisconsin resident, was hurt in Tennessee by a product. He brought a products liability against GE, the manufacturer of the product, in Wisconsin. GE argued at trial that Process Controls negligently modified the subject product. Huskey won the case. The jury was not permitted to assess fault against Process Controls. GE then sued Process Controls in Tennessee seeking contribution.

The Bottom Line:

• “McIntyre v. Balentine, [833 S.W.2d 52 (Tenn. 1992)], did not ‘completely abolish the remedy of contribution.’ Bervoets v. Harde Ralls Pontiac-Olds, Inc., [891 S.W.2d 905, 907 (Tenn. 1994)]. Contribution may still be viable in the following limited circumstances:

1. cases in which prior to McIntyre the cause of action arose, the suit was filed and the parties had made irrevocable litigation decisions based on pre-McIntyre law, Owens v. Truckstops of America, [915 S.W.2d 420 (Tenn. 1996)]; Bervoets v. Harde Ralls Pontiac-Olds, Inc., [891 S.W.2d 905 (Tenn. 1994)];

2. cases in which joint and several liability continues to apply under doctrines such as the family purpose doctrine, cases in which tortfeasors act in concert or collectively with one another, cases in which the doctrine of respondeat superior permits vicarious liability due to an agency-type relationship, or in the “appropriate” products liability case, Resolution Trust Corp. v. Block, [924 S.W.2d 354 (Tenn. 1996)]; Camper v. Minor, [915 S.W.2d 437 (Tenn. 1996)]; Owens v. Truckstops of Amer., [915 S.W.2d 420 (Tenn. 1996)], or

3. in the ‘appropriate case’ in which ‘fairness demands,’ see Owens, 915 S.W.2d at 430 (allowing contribution when ‘fairness demands’); Bervoets, 891 S.W.2d at 907 (recognizing contribution in the ‘appropriate case’).”

969 S.W.2d at 916.

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§ 17.1     Generally

 The Case: Hataway v. McKinley, 830 S.W.2d 53 (Tenn. 1992).

The Basic Facts: The decedent, Grady Hataway, died as a result of complications from a scuba dive in an Arkansas rock quarry. The dive took place as part of a scuba class taught at Memphis State University by the defendant, Robert McKinley. Although both the decedent and the defendant were life-long residents of Tennessee, the trial court (consistent with existing law) held that Arkansas law governed the plaintiffs’ wrongful death action under the lex loci delicti doctrine. The Court of Appeals affirmed.

The Bottom Line: 

• “Our review of the background and modern development of conflicts of law rules convinces us that the lex loci delicti doctrine should be abandoned. Today we announce a new rule — the ‘most significant relationship’ approach of the [Restatement (Second) of Conflictof Laws](1971). Applying the ‘most significant relationship’ approach to the facts of this case, we find that the State of Tennessee has a more significant relationship to the occurrence and the parties, and that Tennessee law should govern the action accordingly, we reverse the Court of Appeals’ decision applying Arkansas law to this case.” 830 S.W.2dat 54.

•  “The first issue we address on this appeal is whether there is a conflict between Arkansas and Tennessee law. Recovery by the plaintiffs under either Arkansas or Tennessee law is predicated on negligence, which is the failure to use reasonable and ordinary care under the circumstances which proximately causes the plaintiff’s injuries.” Id. at 55. 

Author's Note:  The Court found a difference between the law of the two states, both in terms of liability and damages available for wrongful death. The discussion of the differences between the law of the two states is omitted given the material change in Tennessee law in both areas since April 27, 1992.

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§ 16.2     The Difference Between Fiduciary Relationships and Confidential Relationships 

The Case: Foster Business Park, LLC. v. Winfree, No. M2006-02340-COA-R3-CV, 2009 WL 113242 (Tenn. Ct. App. Jan. 15, 2009). 

The Basic Facts: Surti, an owner of the Plaintiff Foster Business Park, LLC, alleged that defendant bank officer Winfree breached fiduciary and other duties to Surti, Foster Business Park and others. 

The Bottom Line: 

• “Under Tennessee common law, there are two principal types of fiduciary status.^FN16 The first category of common law fiduciary status consists of relationships that are fiduciary per se, sometimes referred to as legal fiduciary, such as between a guardian and ward, an attorney and client, or conservator and incompetent. See Kelly v. Allen, 558 S.W.2d 845, 848 (Tenn. 1977); Mitchell v. Smith, 779 S.W.2d 384, 389 (Tenn. Ct. App. 1989); Parham v. Walker, 568 S.W.2d 622, 625 (Tenn. Ct. App. 1978). The second category consists of relationships that are not per se fiduciary in nature, but arise in situations where one party exercised ‘dominion and control over another.’ Kelley v.. Johns, 96 S.W.3d 189, 197 (Tenn. Ct. App. 2002); Matlock v. Simpson, 902 S.W.2d 384, 385-86 (Tenn. 1995); Kelly v. Allen, 558 S.W.2d at 848. This relationship, often called a ‘confidential relationship,’ ‘is not merely a relationship of mutual trust and confidence, but rather it is one ‘‘where confidence is placed by one in the other and the recipient of that confidence is the dominant personality, with ability, because of that confidence, to influence and exercise dominion and control over the weaker or dominated party.’’ Kelley v. Johns, 96 S.W.3d at 197 (citing Iacometti v. Frassinelli, 494 S.W.2d 496, 499 (Tenn. Ct. App. 1973)). The person upon whom the trust and confidence is imposed is under a duty to act for and to give advice for the benefit of the other person on matters within the scope of the relationship. McRedmond v. Estate of Marianelli, 46 S.W.3d 730, 738 (Tenn. Ct. App. 2000); [Restatement (Second) of Torts] § 874 cmt. a (1979).

FN16 All fiduciary relationships are confidential relationships, but not all confidential relationships are fiduciary relationships. A fiduciary relationship connotes a legal relationship, a confidential relationship includes not only fiduciary relationships but also every other relationship in which confidence is rightly reposed and exercised. Steven W. Feldman, Tennessee Practice: Contract Law and Practice § 6.13, at 504 (2006) (“Tennessee Practice: Contract Law and Practice”).”

2009 WL 113242 at *12.

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§ 16.1     Abuse or Breach of Confidential Relationship

The Case: Givens v. Mullikin, 75 S.W.3d 383 (Tenn. 2002).

The Basic Facts: Plaintiff initially brought suit against Defendant after she was injured in an automobile accident. The Defendant’s insurance company then hired an attorney to defend the Defendant. This attorney engaged in substantial discovery, but was eventually fired and replaced by a new law firm. The new firm then engaged in extensive discovery of its own. Plaintiff then brought a separate action on a theory of vicarious liability for the defense attorneys’ alleged abuse of process, inducement to breach express and implied contracts of confidentiality, inducement to breach a confidential relationship, and invasion of privacy during discovery. 

The Bottom Line:

• “[P]rior cases make it clear that a confidential relationship is not one merely exhibiting mutual trust and confidence. Rather, the relationship is more accurately described as one in which ‘‘confidence is placed by one in the other and the recipient of that confidence is the dominant personality, with ability, because of that confidence, to influence and exercise dominion and control over the weaker or dominated party.’’ Mitchell v. Smith, 779 S.W.2d 384, 389 (Tenn. Ct. App. 1989) (quoting Iacometti v. Frassinelli, 494 S.W.2d 496, 499 (Tenn. Ct. App. 1973)).” 75 S.W.3d at 410.

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§ 15.29 Vicarious Liability After Comparative Fault

The Case:   Browder v. Morris, 975 S.W.2d 308 (Tenn. 1998). 

The Basic Facts: Browder was in a car accident with Morris and sought to impose vicarious liability on Morris’ employer. 

The Bottom Line:

• “We agree with the plaintiffs that vicarious liability, ^FN4 or imputed negligence, ^FN5 continues to be viable after the adoption of comparative fault. One who is vicariously liable is held to be financially responsible for the tortious actions of another, even though the vicariously liable party was not negligent. See [Prosser and Keeton on Torts], § 69 (5th ed.1984). The adoption of comparative fault did not change this principle. Vicarious liability still applies, for example, where liability attaches under the family purpose doctrine, respondeat superior, or similar circumstance where liability is vicarious due to an agency-type relationship between the active, or actual, wrongdoer and the one who is vicariously responsible. Camper v. Minor, 915 S.W.2d 437, 447-48 (Tenn.1996).

FN4 Vicarious liability is defined as the ‘imposition of liability on one person for the actionable conduct of another, based solely on a relationship between the two persons. Indirect or imputed legal responsibility for acts of another; for example, the liability of an employer for the acts of an employee, or a principal for torts and contracts of an agent.’ ]Black’s Law Dictionary 1566 (6th ed. 1990)].

FN5 Imputed negligence refers to the same concept as vicarious liability. ‘The negligence of one person may be chargeable to another depending upon the relationship of the parties, as for example, the negligence of an agent acting within the scope of his employment is chargeable to the principal. Negligence which is not directly attributable to the person himself, but which is the negligence of a person who is in privity with him, and with whose fault he is chargeable.’ [Black’s Law Dictionary 758 (6th ed. 1990)]. See also [Prosser and Keeton on Torts], § 69, 499 (5th ed. 1984) (‘Imputed negligence means that, by reason of some relation existing between A and B, the negligence of A is to be charged against B, although B played no part in it, has done nothing whatever to aid or encourage it, or indeed has done all that he possibly can to prevent it.’).”

                975 S.W.2d at 311-12.

Other Sources of Note: Ali v. Fisher, 145 S.W.3d 557, 564 (Tenn. 2005) (negligent entrustment of a vehicle does not give rise to vicarious liability against the entrustor for the acts of the entrustee).

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§ 15.28 Tortfeasors in a Single Event May be Tried Separately

The Case: McNabb v. Highways, Inc., 98 S.W.3d 649 (Tenn. 2003).

The Basic Facts: Plaintiffs were the driver and passenger in a car involved in a collision with another car in a construction zone. Plaintiffs each brought actions against the other driver and the company that placed a concrete barrier in the zone where the collision occurred. Plaintiffs eventually settled with the other driver. 

The Bottom Line: 

• “Turning to the merits of the appeal, Highways argues that where the separate, independent negligent acts of more than one tortfeasor combine to cause a single, indivisible injury, a plaintiff is limited to one cause of action and must join all of the tortfeasors in that action and that this Court’s decision Samuelson v. McMurtry, 962 S.W.2d 473 (Tenn.1998), requires that result. Moreover, Highways argues that joinder of Morrison was required as an indispensable party. See Tenn. R. Civ. P. 19. McNabb and Harrison respond that Samuelson is not controlling since Highways may raise comparative fault as an affirmative defense and ask the jury to allocate fault to Morrison. They also contend that Ronald Morrison was not an indispensable party in this action.” 98 S.W.3dat 652.

• “We begin our analysis with the landmark case of McIntyre v. Balentine, 833 S.W.2d 52 (Tenn.1992), in which we adopted a system of modified comparative fault. Under this system, a plaintiff may recover damages where the plaintiff’s fault is less than the defendant’s fault. The plaintiff’s recovery of damages, however, is reduced to reflect his or her degree of fault. Id. at 57. In cases of multiple tortfeasors, a ‘plaintiff will be entitled to recover so long as plaintiff’s fault is less than the combined fault of all tortfeasors.’ Id. at 58.” Id.

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§ 15.27 Strict Liability Cases 

The Case: Whitehead v. Toyota Motor Corp., 897 S.W.2d 684 (Tenn. 1995).

The Basic Facts: Plaintiff was injured when a pickup truck that he was driving collided head-on with a vehicle that was traveling in the opposite direction from Mr. Whitehead’s pickup truck. The plaintiffs sued the defendants, the manufacturer and seller of the truck, on a crashworthiness theory (defective seat belt system). The defendants denied any defect and asserted the affirmative defense of comparative fault.  

The Bottom Line: 

• “[The first question we consider is] [w]hether the affirmative defense of comparative fault can be raised in a products liability action based on strict liability in tort?” 897 S.W.2d at 684.

• “[O]ur answer to the first question certified to us is that comparative fault principles do apply in products liability actions based on strict liability in tort.” Id. at 693.

• “The conduct that leads to strict products liability involves fault, as the word ‘fault’ is commonly understood. See generally William C. Powers, The Persistence of Fault in Products Liability, [61 Tex. L. Rev. 777 (1983)]. In keeping with the principle of linking liability with fault, a plaintiff’s ability to recover in a strict products liability case should not be unaffected by the extent to which his injuries result from his own fault.” Id.

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§ 15.26 Several Liability as a General Rule

The Case: McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992).

The Basic Facts: “In the early morning darkness of November 2, 1986, Plaintiff Harry Douglas McIntyre and Defendant Clifford Balentine were involved in a motor vehicle accident resulting in severe injuries to Plaintiff … Both men had consumed alcohol the evening of the accident.” 833 S.W.2d at 53. 

The Bottom Line: 

• “Third, today’s holding renders the doctrine of joint and several liability obsolete. Our adoption of comparative fault is due largely to considerations of fairness: the contributory negligence doctrine unjustly allowed the entire loss to be borne by a negligent plaintiff, notwithstanding that the plaintiff’s fault was minor in comparison to the defendant’s. Having thus adopted a rule more closely linking liability and fault, it would be inconsistent to simultaneously retain a rule, joint and several liability, which may fortuitously impose a degree of liability that is out of all proportion to fault.^FN7 

FN7 Numerous other comparative fault jurisdictions have eliminated joint and several liability. See, e.g., Alaska Stat. § 09.17.080(d) (Supp. 1991); Colo. Rev. Stat. § 13-21-111.5(1) (1987); Kan. Stat. Ann § 60-258a(d) (Supp. 1991); N.M. Stat. Ann. § 41-3A-a (1989); N.D. Cent. Code § 32-03.2-02 (Supp. 1991); Utah Code Ann. §78-27-38, -40 (1992); Wyo. Stat. Ann. § 1-1-109(d) (1988).”

             833 S.W.2d at 58. 

Other Sources of Note: When a defendant is found to have a duty to prevent another from committing an intentional wrong, Limbaugh v. Coffee Medical Center, 59 S.W.3d 73 (Tenn. 2001), and joint and several liability survives in cases involving conspiracy, Resolution Trust Corp. v. Block, 924 S.W.2d 354 (Tenn. 1996). A finding of strict liability in a products liability case has the effect of joint and several liability insofar as the liability of the person who manufactured the product is concerned, see Owens v. Truckstops of America, 915 S.W.2d 420 (Tenn. 1996).

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§ 15.25 Negligent Entrustment

The Case: Ali v. Fisher, 145 S.W.3d 557 (Tenn. 2004).

The Basic Facts: Plaintiff Ali was injured when her car was struck by a car owned by Defendant Scheve but driven by Defendant Fisher. Fisher was severely intoxicated and under the influence of marijuana and Benadryl at the time of the accident. Plaintiff brought suit against Fisher and against Scheve, alleging negligent entrustment. 

The Bottom Line: 

• “We granted this appeal to determine whether an owner who negligently entrusted his car to another may be held vicariously liable for the driver’s negligence in the operation of the car. The trial court submitted the case to the jury for allocation of fault on comparative fault principles, and the jury found the owner twenty percent (20%) at fault and the driver eighty percent (80%) at fault. The trial court later amended the judgment by holding that the owner-entrustor was vicariously liable for the negligence of the driver-entrustee and thus liable for all of the compensatory and punitive damages. The Court of Appeals held that the trial court erred in concluding that the owner‑entrustor was vicariously liable for the driver-entrustee’s actions and reinstated the initial judgment. After reviewing the record and applicable authority, we conclude that an owner‑entrustor’s liability for negligent entrustment does not result in vicarious liability for the negligence of the driver-entrustee and that the trial court erred in holding the owner‑entrustor liable for all the damages.” 145 S.W.3d at 559.

• “[T]he argument that a negligent entrustment claim does not arise until the entrustee’s negligence causes harm does not alone make negligent entrustment derivative of the entrustee’s negligence.^FN7 

FN7 We disagree with the plaintiff’s reliance on the trial court’s view that vicarious liability was required under Tennessee Pattern Jury Instruction (“TPI”) (Civil) 12.50, which states that ‘[a]n owner of a motor vehicle is legally responsible for the fault of another if’ the three listed elements are present. This pattern instruction does not expressly create vicarious liability or replace the extensive instructions on comparative fault; moreover, although the TPI serve as guides for instructing the jury, they do not have the force of law. See State v. Saylor, 117 S.W.3d 239, 249 n.8 (Tenn. 2003).”

             Id. at 564. 

Other Sources of Note: West v. East Tennessee Pioneer Oil Co., 172 S.W.3d 545, 555 (Tenn. 2005) (noting “liability for negligent entrustment is founded upon the supplier’s direct negligence in entrusting the chattel to an incompetent user. Vicarious liability, on the other hand, relies upon the supplier’s right to control the chattel at the time the entrustee misuses it.”).

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§ 15.24 Modification by Trial Judge of Fault Percentages Assigned by Jury

The Case: Turner v. Jordan, 957 S.W.2d 815 (Tenn. 1997).

The Basic Facts: Plaintiff, a nurse at a hospital, was attacked by a mentally ill patient. Plaintiff brought a medical malpractice suit against the mentally ill patient’s physician, alleging the doctor failed to use reasonable care in treating the patient. After a post-trial motion, the trial judge adjusted the fault percentages determined by the jury. 

The Bottom Line:

• “The plaintiffs argued that the trial court had the authority to reallocate the percentage of fault instead of granting a new trial, in the same manner as it can suggest an additur or remittitur. The defendant maintains that a new trial was the only appropriate remedy because allocation of fault lies within the exclusive province of the jury.” 957 S.W.2d at 823.

• “In Tennessee, our cases have specifically limited the statutory procedures of remittitur and additur to correction of damages and not liability. See, e.g., Burlison v. Rose, 701 S.W.2d 609 (Tenn. 1985) (remittitur is not proper, and a new trial must be granted, when the trial judge disagrees with the jury on questions of fact other than the amount of damages); Spence v. Allstate Ins. Co., 883 S.W.2d 586, 594 (Tenn. 1994) (suggestion for additur applies to damages). Thus, the trial court correctly determined that it lacked the authority to reapportion the comparative fault in its role as thirteenth juror.^FN10

FN10 Our holding does not preclude the trial court from reallocating comparative fault pursuant to an appropriate motion to alter or amend following a bench trial. Tenn. R. Civ. P. 59.02.”

              Id. at 824.

Other Sources of Note: Jones v. Idles, 114 S.W.3d 911, 914-15 (Tenn. 2003) (applying Turner and holding that “where a trial court acting as the thirteenth juror finds that the jury’s allocation of fault is unsupported by the weight of the evidence, the only remedy is the granting of a new trial. The trial court may not reallocate the percentages of fault between the parties either in whole or in part.”).

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§ 15.23 Indemnity

The Case: Owens v. Truckstops of America v. B. Michael Design. Inc, 915 S.W.2d 420 (Tenn. 1996).

The Basic Facts: Plaintiff brought a negligence claim against a restaurant after a stool he was sitting in broke, causing him to fall. The restaurant then brought a third-party complaint against the manufacturer and seller of the stool for contribution and indemnity based on negligence, strict liability and implied warranty of merchantability. 

The Bottom Line: 

• “Whereas contribution shifts only part of the loss from one party to another, traditional implied indemnity shifts the entire loss from the party found liable to a party who should bear the entire loss. 4 [American Law of Products Liability] at § 52.1. The law of indemnity may be applied where one party is held liable solely by imputation of law because of a relation to a wrongdoer. W. Page Keeton et al., [Prosser and Keeton on the Law of Torts], § 51, at 341-42 (5th ed. 1984). ‘Contracts of indemnification may be expressed, or an obligation to indemnify may arise by implication from the relationship of the parties . . . .’ Houseboating Corp. of Am. v. Marshall, 553 S.W.2d 588, 589 (Tenn. 1977).” 915 S.W.2d at 433.

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§ 15.22 Financial Impact of Settlement With One of Multiple Tortfeasors

The Case: Williams Holding Co. v. Willis, 166 S.W.3d 707 (Tenn. 2005).

The Basic Facts: Plaintiff was owner and landlord of an apartment who brought negligence action against a tenant, tenant’s son and son’s friend after the friend accidentally lit a fire which caused extensive damage to Plaintiff’s property. The parties agreed to submit the litigation to arbitration. Before the arbitration hearing, the tenant and her son reached an agreement with Plaintiff to pay 50% of the damages cause by the fire. 

The Bottom Line:

• “[W]e hold that the arbitrator did not exceed his scope of authority by finding that defendant Leavy was 100% at fault and thus liable for the full amount of the plaintiff’s damages.” 166 S.W.3d at 711.

• “In reaching this conclusion, we disagree with defendant Leavy’s position, and the Court of Appeals’ conclusion, that the arbitrator exceeded his scope of authority or that the trial court ‘clearly erred’ by refusing to grant defendant Leavy a credit based on the amount the plaintiff received in the settlement with defendants Willis and Brown.” Id.

• “Our conclusion is based on the fact that there is no authority in Tennessee that supports defendant Leavy’s argument that a non-settling defendant who is found 100% at fault is entitled to a credit or set-off for the amounts paid to the plaintiff by other settling defendants. To the contrary, under principles of comparative fault, a non-settling defendant is not entitled to a credit for amounts paid by a settling defendant because the non-settling defendant is required to pay damages based on his or her percentage of fault. Varner v. Perryman, 969 S.W.2d 410, 413 (Tenn. Ct. App. 1997); see also McIntyre v. Balentine, 833 S.W.2d 52, 58 (Tenn. 1992) (emphasizing that the goal of comparative fault is to link one’s liability to one’s degree of fault).” Id. at 712.

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§ 15.21 Fifty Percent Rule

The Case: McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992)

The Basic Facts: “In the early morning darkness of November 2, 1986, Plaintiff Harry Douglas McIntyre and Defendant Clifford Balentine were involved in a motor vehicle accident resulting in severe injuries to Plaintiff … Both men had consumed alcohol the evening of the accident.” 833 S.W.2d at 53. 

The Bottom Line: 

• “Two basic forms of comparative fault are utilized by 45 of our sister jurisdictions, these variants being commonly referred to as either ‘pure’ or ‘modified.’ In the ‘pure’ form^FN5, a plaintiff’s damages are reduced in proportion to the percentage negligence attributed to him; for example, a plaintiff responsible for 90 percent of the negligence that caused his injuries nevertheless may recover 10 percent of his damages. In the ‘modified’ form^FN6, plaintiffs recover as in pure jurisdictions, but only if the plaintiff’s negligence either (1) does not exceed (‘50 percent’ jurisdictions) or (2) is less than (‘49 percent jurisdictions’) the defendant’s negligence. See generally [V. Schwartz, supra, at §§ 3.2, 3.5].

FN5 The 13 states utilizing pure comparative fault are Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, Michigan, New Mexico, New York, Rhode Island, and Washington. See [V. Schwartz, supra, at § 2.1].

FN6 The 21 states using the ‘50 percent’ modified form: Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Texas, Vermont, Wisconsin, and Wyoming. The 9 states using the ‘49 percent’ form: Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, North Dakota, Utah and West Virginia. Two states, Nebraska and South Dakota, use a slight-gross system of comparative fault. See [V. Schwartz, supra, at § 2.1].”

                833 S.W.2d at 57.

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§ 15.20 Fault of Plaintiff’s Employer or Co-Employee

The Case: Snyder v. LTG Lufttechnische Gmbh, 955 S.W.2d 252 (Tenn. 1997).

The Basic Facts: Plaintiff brought a products liability action in federal court against the manufacturer and seller of a cotton baler for personal injuries based on negligence and strict liability. Defendants argued that plaintiff’s employer’s conduct rendered the baler defective or unreasonably dangerous.

The Bottom Line:

• “[T]his Court has accepted two questions certified to us by the United States District Court for the Eastern District of Tennessee. The questions are as follows:

1. Whether products liability defendants in a suit for personal injuries based on allegations of negligence and strict liability in tort may introduce evidence at trial that the plaintiff’s employer’s alteration, change, improper maintenance, or abnormal use of the defendants’ product proximately caused or contributed to the plaintiff’s injuries.”

2. If “no,” of what effect is Tenn. Code Ann. § 29-28-108?”

                955 S.W.2d at 253.

• “The defendants in Ridings, like the defendants here, wanted the jury to assess fault against the employer by arguing that the employer’s actions were the proximate, or legal, cause of the plaintiff’s injuries. Of course, the employer cannot be found to be the proximate, or legal, cause of the plaintiff’s injuries because the employer is immune from tort liability under Tenn. Code Ann. § 50-6-108(a). By enacting Tenn. Code Ann. § 50-6-108(a), the legislature has already determined that for policy reasons the employer may not be the legal cause of the plaintiff’s injuries.” Id. at 256.

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§ 15.19 Factors Considered in Fault Allocations

The Case: Eaton v. McLain, 891 S.W.2d 587 (Tenn. 1995).

The Basic Facts: Plaintiff brought this premises liability action against her daughter and son in law after she fell down a flight of basement stairs while a guest at Defendants home.  

The Bottom Line: 

• “This case presents two issues for our determination: (1) whether the Court of Appeals was correct in holding that the trial court should have granted the defendants’ motion for judgment notwithstanding the verdict because the ‘evidence was overwhelming that the plaintiff’s degree of fault was greater than or equal to that of the defendants’; and (2) whether the Court of Appeals was correct in its alternative holding – that the plaintiff failed to present legally sufficient evidence as to the duty element in her claims of negligence.” 891 S.W.2d at 588.

• “This Court’s adoption of the doctrine of comparative fault in McIntyre does not change these standards governing the trial court’s assessment of the evidence; nor does it change the established standard governing the trial court’s ultimate decision of whether to grant the motion. The trial court still must take the strongest legitimate view of the evidence in favor of the non-movant; and it must grant the motion only if reasonable minds could not differ as to the legal conclusions to be drawn from that evidence.” Id. at 590.

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§ 15.18 Effect on Tenn. Code Ann. § 56-7-1201 (Uninsured Motorist Claim)

The Case: Poper v. Rollins, 90 S.W.3d 682 (Tenn. 2002).

The Basic Facts: Plaintiff was the husband of a deceased motorist who was killed in a multi-vehicle accident. Plaintiff brought wrongful death actions against the drivers of the other vehicles and a products liability action against the manufacturer of his wife’s vehicle.  

The Bottom Line: 

• “We Granted this appeal to determine whether the doctrine of comparative fault affects the application of Tenn. Code Ann. § 56-7-1201(d). The statute establishes that the limit of liability for an insurer providing uninsured motorist coverage is the amount of the insurance policy coverage less the sum of the limits collectible under all other liability and primary uninsured motorist insurance policies, bonds, and securities. The trial court found that the statute operates as a liability ‘cap’ for uninsured motorist insurance coverage by offsetting the amounts of all other liability insurance limits collected with respect to the injury or death and that the doctrine of comparative fault does not affect the application of the statute. The Court of Appeals affirmed this finding, holding that the statute clearly limits the liability for uninsured motorist coverage by allowing the offsets described by the trial court. After reviewing the record and applicable authority, we hold that Tenn. Code. Ann. § 56-7-1201(d) unambiguously allows an uninsured motorist insurance carrier to limit its liability by offsetting all other insurance payments, bonds, and securities applicable to the injury or death in question and that Tennessee’s comparative fault doctrine does not affect the application of the statute. We therefore affirm the Court of Appeals’ judgment.” 90 S.W.3d at 682.

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§ 15.17 Effect of Injured Plaintiff’s Fault on Recoverability in Loss of Consortium Claimant’s Action

The Case: Tuggle v. Allright Parking Systems, Inc., 922 S.W.2d 105 (Tenn. 1996).

The Basic Facts: Plaintiff’s husband asserted claim for loss of consortium in slip in fall case. 

The Bottom Line: 

• “We deem it necessary to resolve a question of first impression - whether, under comparative fault principles, the recovery of a spouse claiming loss of consortium should be reduced or barred by the fault of the physically injured spouse.” 922 S.W.2d at 108.

• “We begin our analysis with a brief review of the law in this State as it relates to loss of consortium. In Tennessee, ‘despite being a separate claim from that of an injured spouse for other damages, loss of consortium is also a derivative claim in that the physical injuries or incapacities of one’s spouse give rise to and establish the claim.’ Jackson v. Miller, 776 S.W.2d 115, 117 (Tenn. App. 1989); see also Swafford v. City of Chattanooga, 743 S.W.2d 174, 178 (Tenn. App. 1987).”Id.

• “The clear majority of jurisdictions, however, hold that a loss of consortium award must be reduced, and may be barred, by the comparative fault of the physically injured spouse.” Id. at 108-09 (footnote omitted).

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§ 15.16 Effect of Co-Tortfeasor Committing Intentional Wrong

The Case: Limbaugh v. Coffee Medical Center, 59 S.W.3d 73 (Tenn. 2001).

The Basic Facts: Plaintiff, originally acting as the conservator for his mother, filed suit against Defendant medical center and its employee, a nursing assistant, to recover damages for his mother’s injuries when she was assaulted by the nursing assistant.

The Bottom Line:

• “The final issue presented for our review is whether the trial court erred in apportioning fault between the negligent and intentional defendants where the intentional conduct was the foreseeable risk created by the negligent nursing home.^FN9 This question is one of first impression and requires us to review our holding in Turner v. Jordan, 957 S.W.2d 815 (Tenn. 1997).

FN9 Interestingly, the issue of Ms. Ray’s immunity from suit for her tortious actions committed as a governmental employee has not been raised in the trial court, the Court of Appeals, or in this Court. Therefore, any claims for Ms. Ray’s immunity made pursuant to Tennessee Code Annotated § 29-20-310(b) (“No claim may be brought against an employee or judgment entered against an employee for damages for which the immunity of the governmental entity is removed by this chapter unless the claim is one for medical malpractice brought against a health care practitioner. . . .”) have been waived.”

59 S.W.3d at 86.

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§ 15.15 Effect of Concerted Action

The Case: Resolution Trust Corp. v. Block, 924 S.W.2d 354 (Tenn. 1996).

The Basic Facts: Plaintiff, conservator and then receiver for a savings and loan association, brought suit against former officers of the savings and loan association for breach of fiduciary duty, negligence per se and breach of contract after Defendants approved several loans made by the corporation. 

The Bottom Line:

•  “In an action for damages on behalf of a corporation against its officers and directors who are found to be liable for their collective breach of fiduciary duty and contract and for negligence, the liability of the officers and directors to the corporation is joint and several, not proportional to fault.” 924 S.W.2d at 355.

• “Even those commentators who have advocated the abolition of joint and several liability as a corollary to the adoption of comparative fault have acknowledged the need for retaining its application to collective or concerted actions. See C. Mutter, [Moving to Comparative Negligence in an Era of Tort Reform: Decisions for Tennessee, 57 Tenn. L. Rev., 199, 305 (1990)] (hereafter 57 Tenn. L. Rev. at § ____); [Prosser and Keeton on Torts], § 52 (W. Page Keeton ed.) (5th ed. 1984); 19 C.J.S. “Corporations,” § 484 (1990). For example, in an article published before our decision in McIntyre, Professor Mutter advocated the adoption of a comparative fault system in Tennessee. While noting that ‘comparative negligence and joint and several liability do not mesh,’ 57 Tenn. L. Rev. at 318-19, she added the following:

In order to understand joint and several liability it is necessary to advert to some of the general principles applicable to joint tortfeasors. Initially at common law, a ‘joint tort’ was limited to actual concerted action. Thus, all individuals, who with a common purpose, committed a tort against the plaintiff were liable for the entire damage done, ‘although one might have battered, while another imprisoned the plaintiff, and a third stole the plaintiff’s silver buttons.’ Only a tacit understanding, not an express agreement was necessary. Liability for concerted action continues to be joint and several today, and in general opponents of the rule have no quarrel with its application in this context.

Id. at 305 (emphasis added) (citations omitted).” Id. at 357.

• “Under either the historic or modern approach, the result is the same. In an action for damages by or on behalf of a corporation against the officers and directors of the corporation in which the officers and directors are found to be liable as the result of their collective breach of fiduciary duty, negligence, or breach of contract, the liability of the defendants to the corporation is joint and several.” Id.

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§ 15.14 Duty of Defendant to Allege Causative Acts or Omissions of Another

The Case: George v. Alexander, 931 S.W.2d 517 (Tenn. 1996).

The Basic Facts: Plaintiff’s leg was injured after undergoing surgery which required administering spinal anesthesia beforehand. Plaintiff subsequently brought a malpractice action against two anesthesiologists who treated Plaintiff before surgery.

The Bottom Line: 

• “This case presents the following issue for our determination: whether a defendant in a negligence case must, pursuant to Rule 8.03 of the Tennessee Rules of Civil Procedure, plead comparative fault as an affirmative defense if the defendant wishes to introduce evidence that a person other than itself caused the plaintiff’s injury. We conclude that the defendant is required to affirmatively plead comparative fault in such a situation; and because that was not done in this case, we reverse the judgment of the Court of Appeals.” 931 S.W.2d at 517.

• “[T]he defendants argue that Rule 8.03 is triggered only when the defendant seeks to show that another person was legally at fault for the plaintiff's injuries. Because negligence, the type of legal fault at issue here, requires proof of the elements of duty, breach of duty, causation in fact, proximate causation and injury, McClenahan v. Cooley, 806 S.W.2d 767, 774 (Tenn.1991), the defendants contend that Rule 8.03 does not apply unless they attempted to prove that Dr. Daniell’s conduct satisfied all these elements.” Id. at 520.

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§ 15.13 Bifurcated Fault Allocations

The Case: Grandstaff v. Hawks, 36 S.W.3d 482 (Tenn. 2000).

The Basic Facts: Multi-car wreck resulted in multiple claims, including both drivers suing each other. 

The Bottom Line:

• “McIntyre v. Balentine was a typical two-party motor vehicle collision case. One driver sued the other driver for negligence, and the other driver denied that he was negligent and asserted that the plaintiff driver was contributorially negligent. The jury returned a verdict for the defendant after hearing evidence that both drivers had been drinking and that the plaintiff driver had been speeding. The Tennessee Supreme Court vacated the judgment and remanded the case for another trial based on its newly minted comparative fault principles. To assist the parties, the Court provided suggested jury instructions and a suggested verdict form suitable for two-party litigation only. See McIntyre v. Balentine, 833 S.W.2d at 59-60. The Court also invited the Committee on Civil Pattern Jury Instructions to promulgate new standard jury instructions and pointed out that modifications to its two-party instructions would be required for ‘more complex litigation.’ See McIntyre v. Balentine, 833 S.W.2d at 58, 59.” 36 S.W.3dat 490.

• “The Committee on Civil Pattern Jury Instructions responded to the Tennessee Supreme Court’s invitation by issuing proposed instructions and verdict forms intended to replace the suggested instructions and forms appended to McIntyre v. Balentine. See 8 Committee on Civil Pattern Jury Instructions, Tennessee Pattern Jury Instructions T.P.I. 3-Civil 3.01 - 3.63 (3d ed. 1997) (“T.P.I. 3-Civil”). In addition to a two-party verdict form, see T.P.I. 3-Civil 3.59, the Committee also prepared a verdict form applicable to two-vehicle collision cases involving two drivers and two passengers. See T.P.I. 3-Civil 3.61. We have determined that this instruction is not satisfactory because it fails to differentiate between a passenger’s fault that was a cause of the collision and a passenger’s fault that only contributed to the passenger’s injuries.” Id. at 491.

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§ 15.12 Applicability to Nuisance

The Case: Manis v. Gibson, No. E2005-00007-COA-R3-CV,2006 WL 521466 (Tenn. Ct. App. Mar. 3, 2006).

The Basic Facts: Plaintiff brought a nuisance claim alleging that a road built by defendant affected the water drainage across Plaintiff’s land. Defendant asked the Court to apply comparative fault. 

The Bottom Line: 

• “In this regard, we have observed: ‘[O]ne who interferes with the natural current of a stream is responsible absolutely, and without any question of negligence, for damages thereby caused to one who is entitled to have the water flowing in its natural state.’ Tenn. Elec. Power Co. V. Robinson, [1928 WL 2125, at *2 (Tenn. Ct. App. July 13, 1928)]. It is well settled that ‘a wrongful interference with the natural drainage of surface water causing injury to an adjoining landowner constitutes an actionable nuisance.’” Zollinger v. Carter, 837 S.W.2d 613, 615 (Tenn. Ct. App. 1992) (quoting Butts v. City of South Fulton, 565 S.W.2d 879, 881 (Tenn. Ct. App. 1977)). Prior to Tennessee’s adoption of comparative fault, ordinary contributory negligence was not a defense to a nuisance action based upon absolute liability, but the plaintiff’s gross negligence could act as a defense based upon ‘the principle of acceptance of the risk of a known danger.’ Llewellyn v. City of Knoxville, 232 S.W.2d 568, 576 (Tenn. Ct. App. 1950).” 2006 WL 521466 at *4.

• “In the seminal case abandoning the common-law doctrine of contributory negligence, and adopting comparative fault, the Supreme Court McIntyre v. Balentine, 833 S.W.2d 52, 56 (Tenn. 1992), said: ‘so long as a plaintiff’s negligence remains less than the defendant’s negligence the plaintiff may recover; in such a case, plaintiff’s damages are to be reduced in proportion to the percentage of the total negligence attributable to the plaintiff.’ Id. at 57. However, the Court went on to emphasize the concept of fault over the concept of negligence by making clear that Tennessee’s tort system is ‘fault-based’ and the ‘49 percent rule’ is ‘compatible with a fault-based tort system.’ Id. The Court described this rule as ‘more closely linking liability and fault.’ Id. at 58.” Id.

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§ 15.11 Applicability to Fraud

The Case: Edwards v. Bruce, C.A. No. 01A01-9510-CH-00458, 1996 WL 383294 (Tenn. App. July 10, 1996).

The Basic Facts:  Plaintiff brought various claims arising from a real estate transaction. The claims included fraud.

The Bottom Line: 

• “The defendants next assert that the trial court erred in failing to apply comparative negligence to this case. They argue that the fault of the Bruces in making the representations should have been reduced by the fault of the Edwardses in negligently relying upon the representations. The defendants are essentially arguing that the fault attributable to an intentional tortfeasor should be reduced by the fault attributable to a negligent tortfeasor. We do not agree.” 1996 WL 383294 at *16.

• “In Turner v. Jordan, [No. 01-A-01-9411-CV-00544, 1995 WL 512957 (Tenn. Ct. App. Aug. 30, 1995)] this Court allowed a negligent tortfeasor to reduce his liability by the percentage of fault attributable to an intentional tortfeasor. However, this Court stated that an intentional tortfeasor should not be allowed to reduce his or her liability by the percentage of fault attributable to a negligent tortfeasor. This Court stated: 

Plaintiffs interpret the comparison rule to allow intentional tortfeasors to use the conduct of negligent tortfeasors to reduce their liability. Such an interpretation does not seem well founded. The present case concerns an injured party attempting to transfer an intentional tortfeasor’s responsibility to a negligent tortfeasor, not an intentional tortfeasor attempting to transfer some of his own responsibility to a negligent tortfeasor … As noted by plaintiffs, intentional tortfeasors in Tennessee have always been held fully responsible for the injuries they cause. The contributory negligence of a plaintiff has never been a defense to an intentional assault in Tennessee.  See State v. Dunn, [282 S.W.2d 203, 213 (Tenn. Ct. App. 1943)]. Consequently, the comparison approach stands for the proposition that a negligent tortfeasor may reduce his liability by comparing his fault to that of an intentional tortfeasor, not that an intentional tortfeasor may reduce his liability by comparing his fault to that of a negligent tortfeasor. Id. at *9.” Id. at *16-17. 

•  “Since we have determined that the Bruces are guilty of fraudulent misrepresentation rather than negligent misrepresentation, the Bruces may not reduce their liability for the Edwardses damages by the percentage of fault attributable to the Edwardses in relying upon the representations. This issue is without merit.” Id. at *17.

Other Sources of Note: McRae v. Hagaman, No. E2004-00852-COA-R3-CV, 2004 WL 2378109 (Tenn. Ct. App. Oct. 25, 2004) (re-affirming holding in Edwards that comparative fault not applicable to fraud).  

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§ 15.10 Applicability to Breach of Implied Warranty Cases

The Case: Owens v. Truckstops of America v. B. Michael Design. Inc, 915 S.W.2d 420 (Tenn. 1996).

The Basic Facts: Plaintiff brought a negligence claim against a restaurant after a stool he was sitting in broke, causing him to fall. The restaurant then brought a third-party complaint against the manufacturer and seller of the stool for contribution and indemnity based on negligence, strict liability and implied warranty of merchantability.

The Bottom Line: 

• “The conclusion is that, on the charge of breach of implied warranty of merchantability, a plaintiff’s claim for damages and the apportionment of those damages among tortfeasors in a comparative fault case, and among the first-party and third-party defendants in this case, will be determined according to the principles of comparative fault hereinabove discussed.” 915 S.W.2d at 434.

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§ 15.9     Allocation of Fault to an Unknown Party in a Motor Vehicle Case

The Case: Breeding v. Edwards, 62 S.W.3d 170 (Tenn. Ct. App. 2001).

The Basic Facts: Defendant in automobile accident case blamed a “John Doe.” Plaintiff sued “John Doe” and served Plaintiff’s uninsured motorist carrier. The uninsured motorist carrier sought dismissal of the complaint, relying on Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn. 2000).  

The Bottom Line: 

• “In the instant case, Farmers argues that because the driver whose alleged negligence is the predicate for the plaintiff’s UM claim cannot be identified sufficiently to allow Breeding to plead and serve process upon that driver, no fault may be attributed to the unknown driver, and hence the UM carrier has no liability under the holding in Brown.”62 S.W.3d at 173-74.

• “We disagree for two basic reasons. First, we find nothing in the language of Brown to suggest the Supreme Court intended that its holding there would apply to a negligence case involving an unknown motorist where the UM coverage is otherwise implicated, even if the existence of the unknown motorist and the latter’s fault are first asserted in a response filed by an already-sued defendant.^FN3 In general terms, Brown prevents a defendant from ‘putting off’ fault on an unknown tortfeasor, in those situations where it is the defendant who first raises the fault of the unknown tortfeasor. Brown does not expressly address whether a plaintiff can attempt to assign fault to an unknown tortfeasor under the facts of the instant case.  Brown’s focus is on what a defendant cannot do; it does not concern itself with what a willing plaintiff can do. Put another way, we do not construe Brown as holding that fault can never, under any circumstances, be assigned to a phantom defendant; rather, as we read that case, it simply prevents a defendant from asserting the fault of an unknown individual or entity for the purpose of avoiding the imposition of fault on itself in a situation where the unknown tortfeasor’s fault cannot lead to the entry of a judgment.

FN3 We do not need to decide in this case if the holding in Brown is applicable to a factual scenario involving an unknown motor vehicle driver where the uninsured motorist statutory scheme is not involved.”

           Id. at 174.

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§ 15.8     Allocation of Fault to an Unknown Party Generally

The Case: Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn. 2000).

The Basic Facts: Plaintiff was injured after slipping on ice and water spilled on floor in defendant’s store. The defendant contended that the jury should be permitted to consider the fault of the unidentified tortfeasor who was responsible for spilling the ice and water.  

The Bottom Line:

• “We granted the application for permission to appeal in this slip and fall case to decide the issue of whether the defendant can attribute fault to an unidentified, or ‘phantom,’ tortfeasor.” 12 S.W.3d at 785.

• “Accordingly, in providing that a plaintiff should either amend the complaint or institute a separate suit against the ‘person’ alleged as a comparative tortfeasor in defendant’s answer, Tenn. Code Ann. § 20-1-119 contemplates that the plaintiff will actually know the identity of the alleged individual or entity. See Ridings, 914 S.W.2d at 82 (stating that this section ‘contemplates that those persons to whom fault may be attributed are limited to those against whom liability for the plaintiff’s damages may be asserted.’). Contrary to the conclusion of the Court of Appeals, clear and convincing evidence of the existence of a phantom tortfeasor is not sufficient identification for purposes of pleading and serving process. In our view, unless the nonparty is identified sufficiently to allow the plaintiff to plead and serve process on such person pursuant to Tenn. Code Ann. § 20-1-119, the trial court should not permit the attribution of fault to the nonparty.” Id. at 788.

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§ 15.7     Allocation of Fault to a Product

The Case: Owens v. Truckstops of America v. B. Michael Design. Inc, 915 S.W.2d 420 (Tenn. 1996).

The Basic Facts: Plaintiff brought a negligence claim against a restaurant after a stool he was sitting in broke, causing him to fall. The restaurant then brought a third-party complaint against the manufacturer and seller of the stool for contribution and indemnity based on negligence, strict liability and implied warranty of merchantability.

The Bottom Line:  

• “This conclusion is supported by portions of the Uniform Contribution Among Tort-Feasors Act not addressed in McIntyre, which provide, ‘[i]f equity requires, the collective liability of some as a group shall constitute a single share’ and ‘[p]rinciples of equity applicable to contribution generally shall apply.’ Tenn. Code Ann. § 29-11-103(2) and (3).” Id.  

• “Consequently, joint and several liability against parties in the chain of distribution of a product is essential to the theory of strict products liability. Since strict liability does not require proof of negligence, but only that the product was defective or unreasonably dangerous, parties in the chain of distribution must be treated as a single unit for the purpose of determining and allocating fault.^FN14

FN14 The dissent’s insistence that each defendant in an action for strict liability be liable to the plaintiff according to its separate “fault” would impose upon the plaintiff the burden of proving each defendant was negligent, thus abolishing strict liability.”

           915 S.W.2d at 432.

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§ 15.6     Allocation of Fault to One Whose Conduct Cannot be the Legal Cause of an Injury

The Case: Biscan v. Brown, 160 S.W.3d 462 (Tenn. 2005).

The Basic Facts: Plaintiff was injured in a car wreck after a party at defendant Worley’s house.   Plaintiff was a minor and was under the influence of alcohol. She sued the driver of the car (Brown) and Worley. Plaintiff’s sister Dana provided alcohol to Plaintiff. 

The Bottom Line: 

• “We next address the defendants’ argument that the trial court erred in directing a verdict for the plaintiffs as to the fault of Dana Biscan. Prior to trial, the plaintiffs filed for partial summary judgment seeking to preclude apportionment of fault to Dana for illegally purchasing and providing the beer to minors, arguing that pursuant to Tennessee Code Annotated sections 57-10-101 and -102, one who merely furnishes alcohol to another cannot be at fault. The trial court denied the plaintiffs’ motion, but at the close of proof, the trial court reconsidered the issue and granted a directed verdict. The jury was instructed that it could not apportion fault to Dana Biscan.” 160 S.W.3d at 470.

• “On appeal, the defendants argue that the statute applies only in commercial settings and thus cannot shield Dana Biscan, an individual, for illegally providing alcohol to minor Hughes Brown. They argue that Dana was negligent in providing alcohol to Brown and that she was negligent per se in providing alcohol to a minor. The plaintiffs argue that the defendants have waived appellate review of this issue. In the alternative, they argue that the statute shields Dana as a person who ‘furnished’ alcohol to another.” Id.

• “In sum, we hold that Dana’s conduct in furnishing beer to the defendant Brown did not proximately cause Jennifer Biscan’s injuries under the explicit terms of section 101. Dana did not sell alcohol to Brown within the meaning of section 102, so the exceptions contained in that part do not apply. Because the statute mandates the conclusion that Dana was not a proximate cause of Jennifer’s injuries, the trial court was correct in directing a verdict. Since Dana cannot, as a matter of law, be at fault for Jennifer’s injuries, it would have been error to allow the jury to apportion fault to her.” Id. at 474.

• “We note that this result would be different if Dana were protected by a statute making her immune from suit. Under our system of comparative fault, a jury may apportion fault to an immune party notwithstanding the party’s immunity from liability. Carroll v. Whitney, 29 S.W.3d 14, 19 (Tenn. 2000). We have also held that a jury may apportion fault to persons who are “effectively immune,” such as those protected by a statute of repose. Dotson v. Blake, 29 S.W.3d 26, 29 (Tenn. 2000). However, in enacting Tennessee Code Annotated section 101, the legislature did not make persons or entities who furnish alcohol immune from suit; rather, the legislature determined that furnishing alcohol is not a proximate cause of injuries inflicted by an intoxicated person. Thus, the effect of the provision is not merely to restrict the remedy for a cause of action, but to remove that cause of action entirely, making a person or entity who furnishes alcohol immune from fault as well as immune from liability. Although we held in Carroll that the attribution of fault was not limited ‘to persons against whom the plaintiff has a cause of action in tort,’ 29 S.W.3d at 18, that holding referred to a plaintiff’s ability to prosecute a suit, not to the very existence of a cause of action based on the underlying conduct.” Id. at 474.

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§ 15.5     Allocation of Fault to One Protected by Statute of Repose

The Case: Dotson v. Blake, 29 S.W.3d 26 (Tenn. 2000).

The Basic Facts: Two defendants in a negligence action were dismissed under a statute of repose, Tenn. Code Ann. § 28-3-202. 29 S.W.3d at 26. The court considered whether fault could be allocated to the dismissed defendants.

The Bottom Line: 

• “Relying on this Court’s decisions in Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79 (Tenn. 1996) and Snyder v. Ltg. Lufttechnische GmbH, 955 S.W.2d 252 (Tenn. 1997), the Court of Appeals held that fault could not be attributed to tortfeasors who cannot be held liable due to a statute of repose.^FN2 Thus, the intermediate court affirmed the trial court’s decision refusing to allow the jury to assess fault against the Architect and Contractor. We then granted review to decide whether a trier of fact should be permitted to consider the fault of tortfeasors who cannot be held liable because of a statute of repose.

FN2 In Ridings and Snyder we held that fault could not be assessed against an immune employer in cases where an injured worker sought damages from a third party arising from a work-related injury.”

          29 S.W.3d at 28.

• “After the Court of Appeals released its decision, this Court decided Carroll v. Whitney, 29 S.W.3d 14 (Tenn. 2000). Carroll was a medical malpractice case in which a defendant physician sought to have the jury assess fault against physicians who were immune from suit because they were employees of the State. As in the present case, the Court of Appeals in Carroll relied on Ridings and Snyder and concluded that the jury should not have been permitted to apportion fault to the immune physicians. We reversed, and joined the majority of jurisdictions that permit the allocation of fault to all tortfeasors, even immune ones, who cause or contribute to the plaintiff’s injuries. Specifically, we concluded that ‘when a defendant raises the nonparty defense in a negligence action, a trier of fact may allocate fault to immune nonparties.’ Id. at 17.” Id.

• “Clearly, the rule adopted in Carroll controls the present case where the question is whether fault may be assessed against tortfeasors who are effectively immune from liability because of a statute of repose.^FN5   In order to achieve the fairest result possible by linking liability with fault, Martin Manor should have been permitted to argue that some or all of the fault should have been assessed against the Architect and Contractor. Otherwise, liability might be imposed disproportionately to fault, a result plainly inconsistent with our comparative fault scheme.

FN5 The running of a statute of repose nullifies both the remedy and the right and has the effect of barring a plaintiff’s claim as a matter of law. Wyatt v. A-Best Prod. Co., Inc., 924 S.W.2d 98, 102 (Tenn. Ct. App. 1995). In fact, a statute of repose can bar a claim even before it accrues. Id. For this reason, the Court of Appeals in the present case found that the protection afforded by a statute of repose is functionally indistinguishable from the protection afforded by an immunity defense like that asserted in Ridings and Snyder.”

                Id. at 29.

• “Accordingly, we hold that the trier of fact should be allowed to consider the fault of a tortfeasor who is protected from liability due to a statute of repose.” Id.

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§ 15.4     Allocation of Fault to One Protected by Governmental Immunity

The Case: Carroll v. Whitney, 29 S.W.3d 14 (Tenn. 2000).

The Basic Facts: Parents brought medical malpractice claim against hospital, pediatrician and pediatrician’s employer for the death of their 14-month-old child who died of sepsis and pneumonia. Parents filed separate claim against the state in the claims commission for the actions of two resident physicians, who as state employees were immune from suit. 29 S.W.3d at 14. The Court was asked to determine whether fault could be assigned to the immune state employees.

 The Bottom Line:

• “[W]e hold that when a defendant raises the nonparty defense in a negligence action, a jury may generally apportion fault to immune nonparties.” 29 S.W.3d at 19.

• “Although our decision today achieves a result different from Ridings and Snyder, those cases are not overruled. Rather, they remain uniquely applicable with regard to the allocation of fault to employers in workers’ compensation cases. In such cases, an employer’s liability is governed exclusively by the Workers’ Compensation Law. See Tenn. Code Ann. § 50-6-108(a) (1999). While an employee cannot proceed with a tort action against the employer, the employee may seek damages from some person other than the employer. See § 50-6-112(a). If the employee succeeds in an action against a third party, the employer that has fully or partially paid its maximum liability for workers’ compensation is entitled to a subrogation lien against the employee’s recovery. See § 50-6-112(a).” Id. at 19.

• “While our decision to depart from Ridings and Snyder is prompted primarily by the effect harmless error analysis has on our system of fault allocation, our decision is also grounded in the rationale that led to the adoption of comparative fault in the first place: fairness to the parties by linking fault with liability. In McIntyre, we rejected contributory negligence and joint and several liability in favor of comparative negligence to achieve a fairer and tighter fit between fault and liability. This ‘fair and tight fit’ is lost, however, when some participants to an act of negligence are excluded from the apportionment of fault.” Id. at 20.

• “In summary, we hold that when a defendant raises the nonparty defense in a negligence action, a trier of fact may allocate fault to immune nonparties. Moreover, we limit the application of our decisions in Snyder v. LTG Lufttechnische GmbH, 955 S.W.2d 252 (Tenn. 1997), and Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79 (Tenn. 1996), to workers’ compensation cases.” Id. at 22.

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§ 15.3     Allocation of Fault to Defendant Dismissed Before Trial

The Case: Lindgren v. City of Johnson City, 88 S.W.3d 581 (Tenn. Ct. App. 2002).

The Basic Facts: Trial court failed to consider fault of defendant dismissed without prejudice prior to trial in apportioning fault.

The Bottom Line:

• “A trial court has considerable latitude in allocating fault between or among culpable parties, and the appellate court reviews same with a presumption of correctness. Coln v. City of Savannah, 966 S.W.2d 34, 44 (Tenn.1998). In this case, the Trial Judge allocated no fault to the plaintiff, and the evidence does not preponderate against that finding. However, the Trial Judge allocated 100% fault to defendant City and pretermitted the issue of whether any fault should be apportioned to Frizzell. The action as to Frizzell had been dismissed without prejudice, apparently upon some settlement being made between the plaintiff and Frizzell.” 88 S.W.3d at 585.

• “The Trial Court has the responsibility to apportion fault to anyone having a degree of culpability. See Carroll v. Whitney, 29 S.W.3d 14, 22 (Tenn.2000); Dotson v. Blake, 29 S.W.3d 26 (Tenn.2000); Bervoets v. Harde Ralls Pontiac-Olds, Inc., 891 S.W.2d 905 (Tenn.1994). The trier of fact in a comparative fault case, such as this, should first determine the total amount of the plaintiff's damages without regard to fault, and then apportion damages on the percentage of fault attributable to each tortfeasor. Grandstaff v. Hawks, 36 S.W.3d 482 (Tenn.Ct.App.2000). In this case, the Trial Court did not follow this procedure, although defendant Johnson City had raised the comparative fault of Frizzell as an affirmative defense. In a post-trial Motion, the plaintiff's attorney sought to correct this error. However, at defendant's urging, the Court ruled that it had lost jurisdiction of the case to the appellate process. We vacate the award of damages and remand with directions to the Trial Court on this record, without hearing further proof, to determine the total amount of damages to which plaintiff would be entitled, and then determine the percentage of fault, if any, attributable to Frizzell, and then enter Judgment against defendant, based upon the percentage of fault attributed to the City in accordance within the constraints of the Governmental Tort Liability Act, Tenn. Code Ann. § 29-20-101 et seq. Defendant also raised as an issue the admission of Frank Knisley's testimony, which we find to be without merit.” Id.

Recent Cases: Russell v. Anderson County, No. E2008-00925-COA-R3-CV, 2009 WL 2877415 (Tenn. Ct. App. Sept. 8, 2009) (holding trial court committed error in failing to consider fault of defendant dismissed after pre-trial settlement).

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§ 15.2     Addition of Defendants After Expiration of Statute of Limitations (Tenn. Code Ann. § 20-1-119)

The Case: Townes v. Sunbeam Oster Co., Inc., 50 S.W.3d 446 (Tenn. Ct. App. 2001).

The Basic Facts: Plaintiffs purchased a propane-fueled grill and noticed it was malfunctioning when they attempted to use it. Plaintiffs attempted to empty the propane tank and return it to the store where it was purchased, but were injured when the gas ignited in their car en route. Plaintiffs brought a product liability action against the manufacturer of propane grill, the grill, the manufacturer of the tank, and others.

The Bottom Line: 

• “We turn first to the Townes’ claim that they should be permitted to rely on the relation-back provisions in Tenn. R. Civ. P. 15.03 to save their new claims against Sunbeam from the fatal operation of the statute of limitations.” 50 S.W.3d at 450.

• “The courts should construe Tenn. R. Civ. P. 15.03 liberally to promote the consideration of claims on their merits. Floyd v. Rentrop, 675 S.W.2d 165, 168 (Tenn. 1984); McCracken v. Brentwood United Methodist Church, 958 S.W.2d 792, 794 (Tenn. Ct. App. 1997). However, Tenn. R. Civ. P. 15.03 should not be used to breathe life into claims that are plainly time-barred. Turner v. Aldor Co. of Nashville, Inc., 827 S.W.2d 318, 321-22 (Tenn. Ct. App. 1991).” Id. at 450-451.

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§ 15.1     Abolition of Joint and Several Liability As General Rule

The Case: McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992).

The Basic Facts: A car accident case – both drivers had consumed alcohol the evening of the accident. 

The Bottom Line: 

• “Third, today’s holding [adopting modified comparative fault] renders the doctrine of joint and several liability obsolete. Our adoption of comparative fault is due largely to considerations of fairness: the contributory negligence doctrine unjustly allowed the entire loss to be borne by a negligent plaintiff, notwithstanding that the plaintiff’s fault was minor in comparison to the defendant’s. Having thus adopted a rule more closely linking liability and fault, it would be inconsistent to simultaneously retain a rule, joint and several liability, which may fortuitously impose a degree of liability that is out of all proportion to fault.”

             833 S.W.2d at 57-58 (footnote omitted).

 Other Sources of Note: When a defendant is found to have a duty to prevent another from committing an intentional wrong, Limbaugh v. Coffee Medical Center, 59 S.W.3d 73 (Tenn. 2001), and joint and several liability survives in cases involving conspiracy, Resolution Trust Corp. v. Block, 924 S.W.2d 354 (Tenn. 1996). A finding of strict liability in a products liability case has the effect of joint and several liability insofar as the liability of the person who manufactured the product is concerned. See Owens v. Truckstops of America, 915 S.W.2d 420 (Tenn. 1996).

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§ 13.6     Suicide Cases

The Case: White v. Lawrence, 975 S.W.2d 525 (Tenn. 1998).

The Basic Facts: Plaintiff, administratrix of a patient’s estate, filed suit against the doctor for medical malpractice. Plaintiff alleges that the doctor covertly gave the drug commonly known as “Antabuse”-a drug which creates an “unpleasant” reaction to alcohol, typically used to discourage the consumption of alcohol- to the deceased’s wife, who then administered the drug to the deceased, unbeknownst to him (the deceased). The patient later committed suicide. 

The Bottom Line:

• “The issues to be decided are whether the decedent’s suicide was a superseding, intervening cause, thereby precluding recovery against the defendant as a matter of law, and whether the decedent’s suicide may be considered in determining the fault of the defendant under McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992). The conclusions are that the decedent’s act of suicide was not a superseding, intervening cause of death as a matter of law, but a question of fact to be resolved at trial, and the decedent’s intentional act of committing suicide may not be considered in assessing fault against the defendant.” 975 S.W.2d at 527.

• “As the expert testimony in this case demonstrates, the foreseeability or likelihood of a suicide does not necessarily depend upon the mental capacity of the deceased at the time the suicide was committed. The fact that the deceased was not insane or bereft of reason does not necessarily lead to the conclusion that the suicide, which is the purported intervening cause, is unforeseeable. As our cases dealing with proximate or legal causation have indicated, the crucial inquiry is whether the defendant’s negligent conduct led to or made it reasonably foreseeable that the deceased would commit suicide. If so, the suicide is not an independent intervening cause breaking the chain of legal causation. Those decisions holding to the contrary are overruled.” Id. at 530.

• “The second issue to be considered is whether the decedent’s intentional act of committing suicide may be considered in determining the fault of the defendant.” Id.

• “The same principles that were found to preclude comparison of fault in Turner apply with equal force to the instant case. The defendant’s liability may not be reduced by comparing his negligent conduct with the decedent’s intentional act of committing suicide since the intentional act was a foreseeable risk created by the defendant’s negligence.^FN3

FN3 Judge Drowota’s dissent would hold that where the intentional wrongdoing of a patient is the foreseeable risk created by the negligent physician, comparison of fault is appropriate if the patient is a party to the suit. The rationale for the Turner decision, that “fairness dictates that [a negligent defendant] should not be permitted to rely upon the foreseeable harm it had a duty to prevent so as to reduce its liability” is sound, and the holding of Turner is applicable whether the patient is or is not a party.”

                Id. at 531.

Recent Cases: Linkous v. Lane, No. E2007-01054-COA-R3-CV, 2008 WL 2052617 (Tenn. Ct. App. May 14, 2008) (upholding summary judgment finding suicide was not foreseeable); Drake v. Williams, No. M2007-00979-COA-R3-CV, 2008 WL 1850872 (Tenn. Ct. App. Apr. 25, 2008) (reversing summary judgment finding jury question as to whether suicide was a foreseeable result of doctor’s alleged negligence, and therefore finding it was improper for the trial court to find suicide to be a superseding, intervening cause of death as a matter of law).

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§ 13.5    Loss of Chance

The Case: Kilpatrick v. Bryant, 868 S.W.2d 594 (Tenn. 1993) (Reid, C.J., concurring) (Daughtrey, J. concurring in part and dissenting in part) (Anderson, J. concurring and dissenting).

The Basic Facts: This is a medical malpractice case in which the Tennessee Supreme Court addressed whether a cause of action for “loss of chance” is cognizable in Tennessee.

The Bottom Line:

• “As stated earlier, the Plaintiffs in the present case have established that there is a ‘likelihood’ that the delay in proper diagnosis and treatment caused ‘irreparable damage.’ The term ‘likelihood’ can arguably be equated with a ‘probability.’ See Webster's Third New International Dictionary, Unabridged (Merriam Co. 1971); Black's Law Dictionary (6th ed.) (West 1990); contra White v. Methodist Hosp. South, supra (medical malpractice case equating likelihood with a possibility and therefore insufficient). Nonetheless, we are persuaded that the loss of chance theory of recovery is fundamentally at odds with the requisite degree of medical certitude necessary to establish a causal link between the injury of a patient and the tortious conduct of a physician. As stated earlier, a plaintiff in Tennessee must prove that the physician's act or omission more likely than not was the cause in fact of the harm. Lindsey, 689 S.W.2d at 861. This requirement necessarily implies that the plaintiff must have had a better than even chance of surviving or recovering from the underlying condition absent the physician's negligence. T.C.A. § 29-26-115(a)(3) plainly requires that the plaintiff suffer injury ‘which would not otherwise have occurred.’ This statutory language is simply another way of expressing the requirement that the injury would not have occurred but for the defendant's negligence, our traditional test for cause in fact. Although a plaintiff can recover for harm stemming from the aggravation of an existing illness, the plaintiff may not recover damages for the loss of a less than even chance of obtaining a more favorable medical result. The traditional test for cause in fact prevents recovery because the patient's condition would more likely than not be the same even if the defendant had not been negligent.” 868 S.W.2d at 602-03.

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§ 13.4     Level of Proof Necessary (More Probable Than Not)

The Case: Bara v. Clarksville Memorial Health Systems, Inc., 104 S.W.3d 1 (Tenn. Ct. App. 2003).

The Basic Facts: Parents sued hospital and doctor for death of their child alleging defendants mis-diagnosed injuries following an automobile accident and subsequent incorrect and negligent treatment. 

 The Bottom Line:

•  “Over the objections of Plaintiffs, the trial court charged the jury in accordance with the defendant’s special request number nine which asserted ‘in order for you to find that the injuries and/or death of Ms. Bara were proximately caused by the negligence of any defendant, the plaintiffs must have proven causation to a reasonable degree of medical certainty.’” 104 S.W.3dat 7.  

• “The actual charge embodying this special request provides: ‘Proof of causation in a medical malpractice case cannot rest on conjecture. The mere possibility of such causation is not enough to sustain the plaintiff’s burden of proof. In order for you to find that the injuries and/or death of Ms. Bara were proximately caused by the negligence of any defendant, the plaintiffs must have proven that causation to a reasonable degree of medical certainty.’” Id.

• “Assuming that such a charge to the jury was proper, the same glaring deficiency confronts the jury as has confronted the bench and bar for seventy years. Nobody undertakes to define the meaning of the term. Prior to incorporating this special request number nine into the charge, the judge has just finished charging the jury that Plaintiffs have the burden of proving, by a preponderance of the evidence, all facts necessary to prove fault on the part of Defendants. Then the court specifically defines preponderance of the evidence to mean ‘more likely true than not.’ Then it has charged that if the negligence of a party was ‘a legal cause of the injury or damage’ that party is at fault. Thus, the two time honored elements lack of ordinary care and legal (proximate) cause have been correctly charged under a ‘preponderance of the evidence’ requirement. Then on the heels of these imminently correct instructions the jury is told that ‘proof of causation’ (cause in fact and proximate cause?) must be proven, not by a preponderance of the evidence, but ‘to a reasonable degree of medical certainty.’” Id.

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§ 13.3     Intervening and Superseding Causes

The Case: Potter v. Ford Motor Co., 213 S.W.3d 264 (Tenn. Ct. App. 2006).

The Basic Facts: Plaintiff brought products liability action against the manufacturer of her vehicle. 

The Bottom Line:

• “The intervening cause doctrine operates to relieve a negligent actor from liability ‘when a new, independent and unforeseen cause intervenes to produce a result that the negligent actor could not have reasonably foreseen.’ Rains v.Bend of the River, 124 S.W.3d 580, 593 (Tenn. Ct. App. 2003); White v. Lawrence, 975 S.W.2d 525, 529 (Tenn. 1998). ‘The doctrine applies only when the intervening act (1) was sufficient by itself to cause the injury, (2) was not reasonably foreseeable to the negligent actor, and (3) was not a normal response to the negligent actor’s conduct.’ Rains, 124 S.W.3d at 593; Waste Mgmt., Inc. of Tenn. v. South Central Bell Tel. Co., 15 S.W.3d 425, 432 (Tenn. Ct. App. 1997); Elosiebo v. State, No. E2003-02941-COA-R3-CV, 2004 WL 2709206 at *2 [(Tenn. Ct. App. Nov. 29, 2004)]. When the above elements are met, the intervening act is said to be a superseding cause, which ‘breaks the chain of proximate causation.’ White, 975 S.W.2d at 529; Haynes v. Hamilton Co., 883 S.W.2d 606, 612 (Tenn. 1994); McClenahan v. Cooley, [806 S.W.2d 767, 775 (Tenn. 1991)]. The conduct of the third party or other force supplants the defendant’s conduct as the legal cause of the plaintiff’s injuries. Thus, the intervening, superseding cause relieves the defendant of liability to the plaintiff.” 213 S.W.3d at 273. 

• “The following comment from the Supreme Court illustrates the interconnection between the concepts of intervening cause and proximate or legal cause, and the significance of foreseeability to both concepts:

With respect to superseding intervening causes that might break the chain of proximate causation, the rule is established that it is not necessary that tortfeasors or concurrent forces act in concert, or that there be a joint operation or a union of act or intent, in order for the negligence of each to be regarded as the proximate cause of the injuries, thereby rendering all tortfeasors liable. See Cartwright v. Graves, 184 S.W.2d 373, 381 (Tenn. 1944)]; Whitehurst v. Howell, [98 S.W.2d 1071, 1081 (Tenn. Ct. App. 1936)]; Morris v. Bolling, [218 S.W.2d 754, 758 (Tenn. Ct. App. 1949)]. There is no requirement that a cause, to be regarded as the proximate cause of an injury, be the sole cause, the last act, or the one nearest to the injury, provided it is a substantial factor in producing the end result. Lancaster, 390 S.W.2d at 221; Kroger Co., 387 S.W.2d at 626; Roberts at 871. An intervening act, which is a normal response created by negligence, is not a superseding, intervening cause so as to relieve the original wrongdoer of liability, provided the intervening act could have reasonably been foreseen and the conduct was a substantial factor in bringing about the harm. Solomon v. Hall, [767 S.W.2d 158, 161 (Tenn. Ct. App. 1988)]. ‘An intervening act will not exculpate the original wrongdoer unless it appears that the negligent intervening act could not have been reasonably anticipated.’ Evridge v. AmericanHonda Motor Co., [685 S.W.2d 632, 635 (Tenn. 1985)]; Ford Motor Co. v. Wagoner, 192 S.W.2d 840, 843 (Tenn. 1946)]. See also [Restatement (Second) of Torts], Section 447 (1965). ‘It is only where misconduct was to be anticipated, and taking the risk of it was unreasonable, that liability will be imposed for consequences to which such intervening acts contributed.’ Prosser, supra. Just as in the case of proximate causation, the question of superseding intervening cause is a matter peculiarly for the jury because of foreseeability considerations. See Brookins at 550; Evridge at 635; Young v. Reliance Electric Co., [584 S.W.2d 663, 669 (Tenn. Ct. App. 1979)]. McClenahan, 806 S.W.2d at 775-76.”

Id. at 273-74.

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§ 13.2     Cause in Fact vs. Proximate Cause

The Case: Hale v. Ostrow, 166 S.W.3d 713 (Tenn. 2005).

The Basic Facts: Plaintiff was injured when she walked off a bush-obstructed sidewalk into street and tripped over piece of concrete. Plaintiff sued landowner who did not maintain passable sidewalk. 

The Bottom Line:

• “As we often recite, a negligence claim requires proof of two types of causation: causation in fact and proximate cause. ‘Causation [in fact] and proximate cause are distinct elements of negligence, and both must be proven by the plaintiff by a preponderance of the evidence.’ Kilpatrick v. Bryant, [868 S.W.2d 594, 598 (Tenn. 1993)]. Cause in fact and proximate cause are ‘ordinarily jury questions, unless the uncontroverted facts and inferences to be drawn from them make it so clear that all reasonable persons must agree on the proper outcome.’ Haynes v. Hamilton County, [883 S.W.2d 606, 612 (Tenn. 1994)] (citing McClenahan v. Cooley, [806 S.W.2d 767, 775 (Tenn. 1991)]).” Id. at 718.

• “The defendant’s conduct is the cause in fact of the plaintiff’s injury if, as a factual matter, it directly contributed to the plaintiff’s injury. In a case such as this one, we must ask whether the plaintiff’s injury would have happened ‘but for’ the defendants’ act. See Wood v. Newman, Hayes & Dixon Ins. Agency, [905 S.W.2d 559, 562 (Tenn. 1995)]. If not, then the defendants’ conduct is a cause in fact of the plaintiff’s injury. It is not necessary that the defendants’ act be the sole cause of the plaintiff’s injury, only that it be a cause.” Id.

• “Viewing the facts in the light most favorable to Ms. Hale, there is a genuine issue of material fact as to whether the overgrown bushes on the Ostrows’ property were a cause in fact of her injury. Ms. Hale stated in her deposition that the bushes had completely overgrown the sidewalk, that she determined that she could not bypass the bushes on the sidewalk, and that she therefore decided to leave the sidewalk and step into the street. As she did so, she looked up to check for traffic and tripped over the broken sidewalk. But for the bushes overgrowing the sidewalk, Ms. Hale would not have looked up to check for traffic, as she would not have needed to step into the street. Might she nevertheless have tripped over the concrete and suffered the same injury? Indeed she might have. Given that the evidence on summary judgment must be viewed in the light most favorable to the plaintiff, however, the issue of causation, as well as the allocation of comparative fault, are determinations of fact to be made by the jury.” Id.

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§ 13.1     Generally

The Case: McClenahan v. Cooley, 806 S.W.2d 767 (Tenn. 1991).

The Basic Facts: Plaintiff brought a wrongful death action against Defendant after Defendant’s car was stolen and a high-speed chase with police ensued, and ended when the thief collided with a vehicle driven by Plaintiff’s wife, killing her and Plaintiff’s children. The Defendant had left his keys in his car’s ignition and entered a bank before the car was stolen. 

The Bottom Line:

• “This Court thereafter granted the Plaintiff’s Rule 11 application for permission to appeal to decide the issue of whether a jury should be allowed to determine the issues of proximate cause and intervening cause in cases such as this where the keys are left in the ignition of an automobile that is stolen and ultimately involved in an accident a short time later.” 806 S.W.2d at 770.

• “This Court is of the opinion that the approach taken by the substantial (and growing) number of jurisdictions representing the minority view is the approach that should be taken in Tennessee, in part, because principles of common law negligence long established in this state provide a sufficient analytical framework to dispose of cases with fact patterns similar to the one presented in this appeal. First, it is axiomatic that in order for there to be a cause of action for common law negligence, the following elements must be established: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct falling below the applicable standard of care amounting to a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate, or legal, cause. See Lindsey v. Miami Dev. Corp., 689 S.W.2d 856, 858 (Tenn. 1985); Shouse v. Otis, [448 S.W.2d 673 (Tenn. 1969)]; Ruth v. Ruth, [372 S.W.2d 285 (Tenn. 1963)]. Our opinions have recognized that proximate causation is the ‘ultimate issue’ in negligence cases. Lancaster v. Montesi, [390 S.W.2d 217, 220 (Tenn. 1965)]; Roberts v. Robertson CountyBd. of Ed., 692 S.W.2d 863, 871.” Id. at 774.

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§ 12.1     Generally

The Case: Rivkin v. Postal, No. M1999-01947-COA-R3-CV, 2001 WL 1077952 (Tenn. Ct. App. Sept. 14, 2001).

The Basic Facts: An unmarried couple had a child together, lived together, and eventually ended the relationship. Mr. Rivkin filed suit seeking a partition of the parties’ jointly owned property. Ms. Postal counterclaimed for breach of promise to marry. The trial court divided the property and awarded Ms. Postal $150,000.00 for breach of promise to marry.

The Bottom Line:

• “In 1949, the Tennessee General Assembly passed an act which, according to its caption, was designed ‘to prevent certain injustices in suits for damages for the breach of promise or contract of marriage.’^FN7 This act circumscribes breach of promise claims in four significant ways. First, Tenn. Code Ann. § 36-3-405 provides that these claims could not be joined with other damage claims. Second, Tenn. Code Ann. § 36-3-401 requires that promises or contracts of marriage could only be established using either signed, written evidence of the promise or contract or the testimony of at least two disinterested witnesses. Third, Tenn. Code Ann. § 36-3-403 requires juries to consider the parties’ age and experience in calculating damages.^FN8 Finally, Tenn. Code Ann. § 36-3-404 prohibits awarding punitive damages in cases where the alleged breaching party was over sixty years old. These statutes survive to the present day, and thus this case is governed by their strictures.

FN7Act of April 8, 1949, ch. 161, 1949 Tenn. Pub. Acts 486, now codified at Tenn. Code Ann. §§ 36-3-401-405 (1996).

FN8 In fact, Tenn. Code Ann. § 36-3-403 specifically provided that ‘[a]ny previous marriage on the part of such plaintiff shall be considered by the court and jury in mitigation of the damages that might otherwise be allowed.’”

          2001 WL 1077952 at *4.

• “A suit for breach of promise or contract to marry follows the procedures generally associated with other actions for breach of contract. Kaufman v. Fye, [42 S.W. 25, 30 (Tenn. 1897)]. Thus, the plaintiff has the burden of proving the existence of a contract, that is an offer of marriage and an acceptance, along with consideration (which need only be a return promise to marry). Weeks v. Mays, [10 S.W. 771, 771-72 (Tenn. 1889)]; Conn v. Wilson, 2 Tenn. (2 Overt.) 234, 234 (1814); Clark § 1.2, at 6. The plaintiff must also prove the other party’s refusal to marry or the disavowal of intent to perform. Crossett v. Brackett, 105 A. 5, 6 (N.H. 1918).” Id.

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§ 11.1     Generally

The Case: Johnson v. Tennessee Farms Mut. Ins. Co., 205 S.W.3d 365 (Tenn. 2006).

The Basic Facts: Plaintiff was involved in an automobile collision with another motorist and was named as a defendant in a personal injury suit. Plaintiff brought a bad faith action against his insurance carrier after the insurer refused to settle for the policy limits with the other driver and the other driver won a judgment against Plaintiff for an amount substantially over the policy limit.

The Bottom Line:

• “‘It is well established that an insurer having exclusive control over the investigation and settlement of a claim may be held liable to its insured for an amount in excess of its policy limits if as a result of bad faith it fails to effect a settlement within the policy limits.’ State Auto. Ins. Co. of Columbus, Ohio v. Rowland, 427 S.W.2d 30, 33 (Tenn. 1968). Bad faith refusal to settle is defined, in part, as an insurer’s disregard or demonstrable indifference toward the interests of its insured. See S. Fire & Cas. Co. v. Norris, 250 S.W.2d 785, 790-91 (Tenn. Ct. App. 1952). This indifference may be proved circumstantially. Id. at 91. Bad faith on the part of the insurer can be proved by facts that tend to show ‘a willingness on the part of the insurer to gamble with the insured’s money in an attempt to save its own money or any intentional disregard of the financial interests of the plaintiff in the hope of escaping full liability imposed upon it by its policy.’ Goings v. Aetna Cas. & Sur. Co., 491 S.W.2d 847, 849 (Tenn. Ct. App. 1972). If the claim exceeds the policy limits, then the insurer’s conduct is subject to close scrutiny because there is a potential conflict of interest between the insurer and the insured. Tenn. Farmers Mut. Ins. Co. v. Wood, 277 F.2d 21, 35 (6th Cir. 1960).” 205 S.W.3d at 370.

• “To discharge its duty to act in good faith, an insurer must exercise ordinary care and diligence in investigating the claim and the extent of damage for which the insured may be held liable. S. Fire & Cas. Co., 250 S.W.2d at 790‑91. The manner in which the insurer investigates the case ‘has an important bearing upon the question of bad faith in refusing or failing to settle the claim.’ Id. at 791. Ordinary care and diligence in investigation require the insurer to investigate the claim to such an extent that it can exercise an honest judgment regarding whether the claim should be settled. Perry v. U.S. Fid. & Guar. Co., 359 S.W.2d 1, 6‑7 (Tenn. Ct. App. 1962). Courts must review the facts that were known to the insurer and its agents and that should have been considered in deciding whether to settle. Id. at 7.” Id. at 370-71.

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§ 10.3     Necessity of Giving Notice of Intention to Seek Penalty

The Case: PacTech, Inc. v. Auto-Owners Insurance Co., 292 S.W.3d 1 (Tenn. Ct. App. Sept. 22, 2008), perm. appeal denied, (Apr. 27, 2009).

The Basic Facts: Plaintiff insured sued insurer for failure to pay claim in a timely manner.

The Bottom Line:

• “Auto-Owners contends that PacTech’s claim under this statute should have been dismissed by the trial court upon Auto-Owners’ motion for directed verdict. We agree.” Id. at 9.

• “In Ginn v. American Heritage Life Insurance Co., 173 S.W.3d 433 (Tenn. Ct. App. 1977), we noted that a formal demand for payment by the insured is a prerequisite to recovery under the statute:

In order to recover bad faith penalties under [Tenn. Code Ann. § 56-7-105], a plaintiff must prove (1) the policy of insurance must, by its terms, have become due and payable, (2) a formal demand for payment must have been made, (3) the insured must wait 60 days after making his demand before filing suit unless there is a refusal to pay prior to the expiration of the 60 days, (4) the refusal to pay must not have been in good faith.

Id. at 443 (citation omitted) (emphasis added). In an earlier opinion, Walker v. Tenn. Farmers Mut. Ins. Co., 568 S.W.2d 103,106 (Tenn. Ct. App. 1977), observing the penal nature of the statue and the necessity that it be strictly construed, we further noted that, even though an insured has completed all forms required by the insurer, this is insufficient to meet the requirement of the statute that formal demand be made, and we concluded that such requirement shows that the insurer is ‘entitled to notice of the claim for bad faith and a period in which to reflect upon the consequences of its failure to pay.’ Id. at 106. There being no evidence that PacTech at any time made formal demand for payment such as would have apprised Auto-Owners of PacTech’s bad faith claim, we believe Auto-Owners’ motion for directed verdict at the close of proof was well taken and should have been granted.” 292 S.W.3d 1.

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§ 10.2     Effect of Misrepresentation by Insured in Proof of Loss

The Case: McConkey v. Continental Ins. Co., 713 S.W.2d 901 (Tenn. Ct. App. May 22, 1984).

The Basic Facts: Plaintiff insured sued insurer for failure to pay claim in a timely matter. Insurer claimed that insured made material misrepresentations in the proof of loss.

The Bottom Line:

• “The court was obviously convinced that all the contents claimed to be in the house were not there, but failed to elaborate further on the issue.

Policies of fire and property indemnity insurance usually provide that any fraud or false swearing on the part of the insured, whether before or after loss, shall relieve the insurer from liability. Under such a provision, false statements as to material matters wilfully made by the insured in proofs of loss with the intention of thereby deceiving the insurer will preclude any recovery on the policy by the insured; ... . This rule is applicable, for example, to the following: an overvaluation of the property insured; ... the inclusion in the proofs of property not destroyed; ... .

‘If a false statement is knowingly made by the insured with regard to a material matter, the intent to defraud will be inferred... . . Furthermore, the insured’s knowledge of the falsity of the statements made by him need not be absolute in order to work a forfeiture of his rights under the policy. It is sufficient if he swears with disregard to the truth or swears to matters as true within his knowledge when in fact he knows little or nothing about them.’ 44 Am. Jur. 2d Insurance § 1371, p. 299-300.” 

                713 S.W.2d at 906.

Other Sources of Note: In PacTech, Inc. v. Auto-Owners Insurance Co., 292 S.W.3d 1 (Tenn. Ct. App. Sept. 22, 2008), perm. appeal denied, (Apr. 27, 2009) the holding in McConkey was cited with approval.

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§ 10.1     Generally

The Case: Ginn v. American Heritage Life Ins. Co., 173 S.W.3d 433 (Tenn. Ct. App. 2004), perm. appeal denied (Dec. 29, 2004).

The Basic Facts: Plaintiff bought a life insurance policy from a salesman who came to her work place, asking her only a few questions about Plaintiff’s and Plaintiff’s husband’s health before selling coverage. Plaintiff’s husband – who had a history of health problems – died shortly thereafter, and the insurance company refused to pay on the policy. Plaintiff then brought an action for breach of contract, bad faith refusal to pay, and Consumer Protection Act against insurer. 

The Bottom Line:

• “The statute upon which Plaintiff was awarded a 25% bad faith penalty is Tenn. Code Ann. § 56-7-105(a), which provides as follows:

The insurance companies of this state ¼ in all cases when a loss occurs and they refuse to pay the loss within sixty (60) days after a demand has been made by the holder of the policy or fidelity bond on which the loss occurred, shall be liable to pay the holder of the policy or fidelity bond, in addition to the loss and interest thereon, a sum not exceeding twenty‑five percent (25%) on the liability for the loss; provided, that it is made to appear to the court or jury trying the case that the refusal to pay the loss was not in good faith, and that such failure to pay inflicted additional expense, loss, or injury including attorney fees upon the holder of the policy or fidelity bond; and provided further, that such additional liability, within the limit prescribed, shall, in the discretion of the court or jury trying the case, be measured by the additional expense, loss, and injury including attorney fees thus entailed.”

173 S.W.3d at 442-43.

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§ 9.1       Generally

The Case: Schmitt v. Smith, 118 S.W.3d 348 (Tenn. 2003).

The Basic Facts: McCrary was hired by Plaintiff in a divorce action. When Plaintiff and Defendant reached a partial settlement, the attorney filed a Notice of an Attorney’s Lien against the marital residence for her fees through that point. The attorney then filed a petition to enforce the lien. 

The Bottom Line:

• “The Tennessee General Assembly created a statutory attorney’s lien which provides that ‘[a]ttorneys and solicitors of record who begin a suit shall have a lien upon the plaintiff’s or complainant’s right of action from the date of the filing of the suit.’ Tenn. Code Ann. § 23-2-102 (1994). This lien ‘attaches to any proceeds flowing from a judgment, as long as the lawyer worked to secure that judgment for the client.’ Starks v. Browning, 20 S.W.3d 645, 651 (Tenn. Ct. App. 1999). Tennessee Code Annotated section 23-2-103 (1994) provides a lien to an attorney who is substituted as plaintiff’s counsel after an action has begun. It provides:

Any attorney or solicitor who is employed to prosecute a suit that has already been brought in any court of record shall have a lien upon the plaintiff’s right of action from the date of the attorney’s or solicitor’s employment in the case; provided, that the record of the case shall first be made to show such employment by notice upon the rule docket of such court, or a written memorandum filed with the papers in the case, or by notice served upon the defendant in the case.”

                118 S.W.3d at 351.

• “From the record, it appears that McCrary asserts her claim of an attorney’s lien pursuant to Tennessee Code Annotated section 23-2-102 instead of section 23-2-103. These sections are mutually exclusive, as one applies to attorneys who begin a suit, and the other applies to attorneys hired after a suit has already been brought. In re Pass, 258 B.R. 170, 172 (Bankr. E.D. Tenn. 2001). Because McCrary began her representation of Schmitt after the divorce action had already commenced, her claim of an attorney’s lien is pursuant to Tennessee Code Annotated section 23-2-103. However, the analysis under both of the statutes is the same. In re Pass, 258 B.R. at 172.” Id. at 351-52.

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§ 8.3       Fees Charged to Minors

The Case: Wright v. Wright, No. M2007-00378-COA-R3-CV, 2007 WL 4340871 (Tenn. Ct. App. Dec. 12, 2007).

The Basic Facts: Case involving personal injuries to minor settled and attorney sought approval of contingency fee. The child’s guardian ad litem objected to the fee request, which was one-third of the monetary recovery for the child.

The Bottom Line: 

• “By caselaw and by statute the settlement of a case brought by a minor for personal injuries must be approved by the court, and the court must ensure that the settlement itself is in the best interests of the minor. See Busby v. Massey, 686 S.W.2d 60 (Tenn. 1984); Rafferty v. Rainey, 292 F.Supp. 152 (E.D. Tenn. 1968); see also T.C.A. § 29-34-105; T.C.A. § 34-1-121(b). Obviously, part of settling a minor’s personal injury claim is authorization to pay attorney’s fees, and a determination of the proper amount of attorney’s fees for handling a minor’s claim must be made by the court. See Roberts v. Vaughn, [219 S.W. 1034, 1036 (Tenn. 1920)] (holding that attorney’s fees for representing a minor are subject to the ‘action of the Court in fixing his compensation’ only ‘after an investigation of their value’); see generally 42 Am. Jur. 2d Infants § 200 (2000).” Id. at *1.

• “Although not specifically raised on appeal, counsel for the plaintiff has at one time contended that the issue of attorney’s fees was beyond the duties of the guardian ad litem. This Court wishes to make clear that a challenge to attorney’s fees is well within the duties of a guardian ad litem. The role of a guardian ad litem is to protect a minor’s interests. Toms v. Toms, 209 S.W.3d 76, 81 (Tenn. Ct. App. 2005); Keisling v. Keisling, 196 S.W.3d 703, 729-30 (Tenn. Ct. App. 2005) see also Tenn. R. Civ. P. 17.03. Specifically, the role of a minor’s guardian ad litem in the context of settling of a serious tort claim is illustrated by Thomas v. R.W. Harmon, Inc., 760 S.W.2d 212 (Tenn. Ct. App. 1988). Thomas involved a collateral challenge to a minor’s settlement entered into by the child’s parent without the aid of counsel. See id. at 213. The minor was seriously injured, but the parent settled for a small amount. Id. This Court held that the trial court’s failure to appoint a guardian ad litem, investigate into the facts of the incident, or determine whether the settlement was in the minor’s best interests supported setting aside the judgment. Id. at 217.” Id. at *3.

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§ 8.2       Contingency Fees

 The Case: White v. McBride, 937 S.W.2d 796 (Tenn. 1996).

The Basic Facts: This case concerns issues of whether the contingency fee agreement between lawyer and client is clearly excessive and if so, whether the attorney may recover fees on a quantum meriut basis.

The Bottom Line: 

• “The first issue for our consideration is whether the contingency fee contract itself and the subsequent attempt to enforce that contract contravened DR 2-106. That rule provides:

(A) A lawyer shall not enter into an agreement for, charge, or attempt to collect an illegal or clearly excessive fee.

(B) A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following:

(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.

(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.

(3) The fee customarily charged in the locality for similar legal services.

(4) The amount involved and the results obtained.

(5) The time limitations imposed by the client or by the circumstances.

(6) The nature and length of the professional relationship with the client.

(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.

(8) Whether the fee is fixed or contingent.

(C) A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee for representing a defendant in a criminal case."

937 S.W.2d at 800.

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§ 8.1       Apportionment of Fees in Cases with Workers’ Compensation Subrogation Interest

The Case: Rushing v. Crockett, No. M2004-00324-COA-R3-CV, 2005 WL 415177 (Tenn. Ct. App. 2005).

The Basic Facts: Plaintiff suffered compensable work injury and injury by negligence of third party. The third party claim was resolved and the parties could not agree on a proportional allocation of fees. 

The Bottom Line:

• “The tort action was settled for $100,000.00. Without objection Montgomery County had been allowed to intervene to protect its subrogated interest which was stipulated to be $43,487.40. Thereafter, the attorney for the plaintiff, Mr. Rassas, filed a motion to apportion his fee pursuant to Tenn. Code Ann. § 50-6-112, which provides:

[T]he attorney representing such injured worker . . . and effecting the recovery, shall be entitled to a reasonable fee for the attorney's services, and the attorney shall have a first lien therefor against the recovery; provided, that if the employer has engaged other counsel to represent the employer in effecting recovery against such other person, then a court of competent jurisdiction shall, upon application, apportion the reasonable fee between the attorney for the worker and the attorney for the employer, in proportion to the services rendered.”

                2005 WL 415177 at *1.

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§ 7.2       Contractual Waiver of Liability

The Case:  Olson v. Molzen, 558 S.W.2d 429 (Tenn. 1977).

The Basic Facts: Doctor sought to avoid liability to patient because of an exculpatory clause he had her execute at the time she engaged his services. 

The Bottom Line:

• “The courts of Tennessee have long recognized that, subject to certain exceptions, parties may contract that one shall not be liable for his negligence to another. Moss v. Fortune, [340 S.W.2d 902 (Tenn. 1960)].” 558 S.W.2d at 430.

• “While these cases are relevant and make it clear that as a general rule a party may contract against his or her own negligence, they do not afford a satisfactory solution in a case involving a professional person operating in an area of public interest and pursuing a profession subject to licensure by the state.” Id.

• “Moss points us in the direction of a controlling consideration, i. e. whether the exculpatory provision affects the public interest by recognizing the exceptions made for the benefit of the public. Generally our cases uphold exculpatory contracts between private contracting parties but, aside from those involving common carriers, no case has been decided wherein the public interest consideration has been discussed.” Id. at 431.

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§ 7.1       Generally

The Case: Perez v. McConkey, 872 S.W.2d 897 (Tenn. 1994).

The Basic Facts: Woman was injured in an on-the-job accident. Her employer, the defendant, was not covered by the Worker’s Compensation Act and raised assumption of risk as a defense. 

The Bottom Line:

• “According to that analysis [by Professor Mutter], there are two basic types of assumption of risk, express and implied. Express assumption of risk refers to an express release, waiver, or exculpatory clause, by which one party agrees to assume the risk of harm arising from another party’s negligence. Such agreements are of a contractual nature and will generally be enforced by a court unless it is contrary to a sound public policy. Id. at 285. Implied assumption of risk refers to at least two different concepts, primary implied assumption of risk and secondary implied assumption of risk. Implied assumption of risk, it its primary sense, applies to bar recovery when a plaintiff has assumed known risks inherent in a particular activity, such as observing a baseball game from an unscreened seat. Id. at 286. In this situation, an assumption of risk defense is simply an alternative manner of stating that the plaintiff has failed to establish a cause of action, because the defendant has no duty to protect the plaintiff from the inherent risk. Id. Secondary implied assumption of risk applies when the plaintiff, either reasonably or unreasonably, decides to encounter a known risk. When the plaintiff’s decision to take the risk is unreasonable, secondary assumption of risk is indistinguishable from contributory negligence, and should only reduce, not preclude, recovery under a comparative fault analysis. Id. When the plaintiff’s decision to encounter the risk is reasonable, the plaintiff is not negligence, but because the decision is voluntary, commentators are split as to whether a plaintiff’s recovery, under comparative fault, should be precluded, reduced or unaffected.” 872 S.W.2d at 900 (footnotes omitted).

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§ 6.6       Defense – Self-Defense

The Case:  Poliak v. Adcock, No. M2000-02325-COA-R3-CV, 2002 WL 31109737 (Tenn. Ct. App. Sept. 24, 2002).

The Basic Facts: Defendant got into a fight with his daughter’s live in boyfriend. He raised several defenses, including self-defense. 

The Bottom Line: 

• “Self-defense is a complete defense to a civil action for battery. Dent v. Holt, No. 01A01-9302-CV-00072, 1994 WL 503891, at *1 (Tenn. Ct. App. Sept. 16, 1994) (No Tenn. R. App. P. 11 application filed). Thus, persons who can prove that they were acting in self-defense when they assaulted another person will be absolved from liability for the injuries they may have caused.” 2002 WL 31109737 at *3.

• “The elements of the defense are essentially the same in civil and criminal cases. Shelby Ins. Co. v. Mathes, No. E2000-00186-COA-R3-CV, 2000 WL 1035949, at *2 (Tenn. Ct. App. July 27, 2000) (No Tenn. R. App. P. 11 application filed); [Restatement (Second) of Torts § 63 (1965)]. The defense reflects the principle that persons are entitled to defend themselves when they reasonably believe they are about to be seriously injured. [Restatement (Second) of Torts §§ 63, 65 (1965)]; Tenn. Code Ann. § 39-11-611(a) (1997). However, persons are entitled to use force to defend themselves only as long as the threat of injury continues, Sneed v. Englert, Hamilton Law, 1984 Tenn. App. LEXIS 2657, at *3-4 (Tenn. Ct. App. Feb. 7, 1984) (No Tenn. R. App. P. 11 application filed), and may use only as much force as is necessary to defend themselves. McLemore v. Moore, 2 Tenn. Cas. (Shannon) 142, 143 (1876); McCain v. Vaughn, No. 02A01-9707-CV-00154, 1999 WL 95974, at *2 (Tenn. Ct. App. Feb, 26, 1999) (No Tenn. R. App. P. 11 application filed); Dent v. Holt, 1994 WL 503891, at *2.” Id.

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§ 6.5       Defense – Provocation

The Case: Poliak v. Adcock, No. M2000-02325-COA-R3-CV, 2002 WL 31109737 (Tenn. Ct. App. Sept. 24, 2002).

The Basic Facts: Defendant got into a fight with his daughter’s live in boyfriend. He raised several defenses, including provocation.

The Bottom Line: 

• “In Tennessee, provocation is a theory used to mitigate damages rather than an affirmative defense. Dent v. Holt, 1994 WL 503891, at *2. It does not completely absolve a defendant from liability like the defense of self-defense does. Instead, it enables defendants to reduce the amount of damages a plaintiff receives by demonstrating that the plaintiff provoked the defendant into the injury-causing conduct. Daniel v. Giles, [66 S.W. 1128, 1128 (Tenn. 1901)]; Jacaway v. Dula, 15 Tenn. (7 Yer.) 82, 83 (1834).” 2002 WL 31109737 at *4.

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§ 6.4       Defense – Defense of Property

The Case:  Poliak v. Adcock, No. M2000-02325-COA-R3-CV, 2002 WL 31109737 (Tenn. Ct. App. Sept. 24, 2002).

The Basic Facts: Defendant got into a fight with his daughter’s live in boyfriend. He raised several defenses, including defense of property.

The Bottom Line: 

• “Property owners may use as much force as is reasonably necessary to prevent another from unlawfully coming onto their property or to remove another who is trespassing on their property. Tenn. Code Ann. § 39-11-614(a) (1997); Brookside-Pratt Mining Co. v. Booth, 100 So. 240, 242 (Ala. 1924); Hamilton v. Howard, 28 S.W.2d 7, 10 (Ky. 1930); Bailey v. Ferguson, 183 S.E. 275, 275 (N.C. 1936).” 2002 WL 31109737 at *5.

• “To raise the defense of property defense, a property owner must prove (1) that the plaintiff was trespassing on his or her property, (2) that he or she reasonably believed that the force used on the trespasser was necessary to get the trespasser off or to keep the trespasser off his or her property, and (3) that he or she first asked the trespasser to leave and that the trespasser refused or that he or she reasonably believed that any such attempt would have been useless or would have caused substantial harm. [Restatement (Second) of Torts § 77 (1965)]. Property owners can never use force that endangers human life or inflicts serious bodily harm. State v. McCombs, 253 S.E.2d 906, 911 (N.C. 1979); see also State v. Buell, No. 01C01-9607-CC-00292, 1997 WL 677947, at *3 n.7 (Tenn. Crim. App. Nov. 3, 1997) (No Tenn. R. App. P. 11 application filed).” Id.

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§ 6.3       Defense – Consent

The Case: Kline by Kline v. Jordan, 685 S.W.2d 295 (Tenn. Ct. App. 1984).

The Basic Facts: Parents alleged the doctor’s examination of minor child was assault and battery. 

The Bottom Line:

• “For a cause of action for assault and battery to arise, there must be an absence of consent. Ray v. Scheibert, [484 S.W.2d 63 (Tenn. Ct. App. 1972)]. Consent may appear from the circumstances, so that if there was some manifestation of consent upon which the defendant could reasonably rely, he would not be liable. As Prosser has stated, ‘[c]onsent to an act is simply willingness that it shall occur. Actual willingness, established by competent evidence, will prevent liability; and, if it can ever be proved, will no doubt do so even though the plaintiff has done nothing to manifest it to the defendant. But the converse is also true, that a manifestation of consent, upon which the defendant may reasonably rely, will be equally effective even though there is no willingness in fact. In our society we must perforce rely upon the overt words and acts of others, rather than upon their undisclosed minds. Consent may therefore be manifested by words. The defendant is entitled to rely upon what any reasonable man would understand from the plaintiff’s conduct. [W. Prosser, The Law of Torts, § 18 (4th ed. 1971)].” 685 S.W.2d at 295.

Other Sources of Note: Doe v. Mama Taori’s Premium Pizza, LLC, No. M1998-00992-COA-R9-CV, 2001 WL 327906 (Tenn. Ct. App. Apr. 5, 2001) (holding the consent is not effective to void liability if, “(1) the person giving consent lacked the necessary capacity, (2) the consent was coerced, (3) the person giving the consent was mistaken about the nature and quality of the act, or (4) the nature of the act was such that no person could consent to it … Incapacity to give consent may arise from age, intoxication, or mental incompetence.”).

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§ 6.2       Battery – Generally

The Case: Doe v. Mama Taori’s Premium Pizza, LLC, No. M1998-00992-COA-R9-CV, 2001 WL 327906 (Tenn. Ct. App. Apr. 5, 2001).

The Basic Facts: Adult employee of pizza parlor engaged in homosexual conduct with minor, part-time employee of parlor. Minor, through his parents, brought numerous causes of action, including battery. 

The Bottom Line:

• “A battery is an intentional act that causes an unpermitted, harmful or offensive bodily contact. Cary v. Arrowsmith, 777 S.W.2d 8, 21 (Tenn. Ct. App. 1989); [Restatement (Second) of Torts] § 18(1) (1965); 7 Stuart M. Speiser, et al., [The American Law of Torts] § 26:12 (1990) (“Speiser”). Offensive contact is contact that infringes on a reasonable sense of personal dignity ordinarily respected in a civilized society. [Restatement (Second) of Torts] § 19 (1965); [1 Fowler W. Harper, et al., The Law of Torts] § 3.2 (3d ed. 1996) (“Harper”); [1 Dan B. Dobbs, The Law of Torts] § 28, at 52-53 (2001) (“Dobbs”).” 2001 WL 327906 at *4.

Recent Cases: Runions v. Tennessee State University, No. M2008-01574-COA-R3-CV, 2009 WL 1939816 (Tenn. Ct. App. Feb. 17, 2009) (holding alleged physical contact was not so offensive as to rise to the level of civil battery where professor physically escorted student out of classroom).

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§ 6.1       Assault – Generally

The Case: Johnson v. Cantrell, No. 01A01-9712-CV-00690, 1999 WL 5083 (Tenn. Ct. App. Jan. 7, 1999).

The Basic Facts: Defendant obtained a restraining order against the plaintiff’s employer. Defendant and his wife aggressively questioned the conduct of plaintiff at her place of employment. Plaintiff hyper-ventilated and was told that she had a mini-stroke. 

The Bottom Line:

• “In Tennessee, the tort of assault is defined as ‘any act tending to do corporal injury to another, accompanied with such circumstances as denote at the time an intention, coupled with the present ability, of using actual violence against the person.’ Thompson v. Williamson County, 965 F. Supp. 1026, 1037 (M.D. Tenn. 1997); Vafaie v. Owens, No. 92C-1642, 1996 WL 502133, at *3 [(Tenn. Ct. App. Sept. 6, 1996)]; Huffman v. State, 292 S.W.2d 738, 742 (Tenn. 1956), overruled in part on other grounds by State v. Irvin, 603 S.W.2d 121, 123 (Tenn. 1980). Under this definition, a defendant is not subject to liability for assault unless he or she commits an intentional act creating a reasonable apprehension of imminent physical harm on the part of the plaintiff. See Baker v. Moreland, No. 89-62-II, 1989 WL 89758, at *6 [(Tenn. Ct. App. Aug. 9, 1989)] (citing 6A C.J.S. Assault & Battery § 65 (1975)).” 1999 WL 5083 at *3.

• “It is well established that an assault cannot be committed by words alone, no matter how insulting, offensive, or abusive those words might be. See Baker, 1989 WL 89758, at *6 (citing 6A C.J.S. Assault & Battery § 66 (1975)). Rather, the words must be accompanied by an overt act or physical movement causing the plaintiff to reasonably believe that he or she is in imminent physical danger.” Id. at *5.

 Other Sources of Note: Raines v. Shoney’s, Inc., 909 F.Supp. 1070, 1083 (E.D. Tenn. 1995) (threat of future violence was not suggestive of an immediate harm and therefore plaintiff did not allege facts sufficient to maintain an action for assault).

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§ 5.2       Harboring Wild Animals

The Case: Concklin v. Holland, 138 S.W.3d 215 (Tenn. Ct. App. 2003)

The Basic Facts: The Concklin’s minor daughter was furnished alcohol and illicit drugs at a house owed by defendants. They brought a wrongful death suit under several theories, including ultra-hazardous activity. The decision is dicta on the liability of one who harbors wild animals, but nevertheless is included for the convenience of the reader. There is no case in Tennessee that is directly on point.

The Bottom Line:

•  “Mr. and Mrs. Conklin next argue that it was error for the trial court to dismiss a strict liability claim against Lewis based on the ultra-hazardous activity present at the Fenwick property. Mr. and Mrs. Concklin cite to the [Restatement (Second) of Torts] as support for their assertion of liability against Lewis. Section 519 provides that ‘[o]ne who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.’ [Restatement (Second) of Torts] § 519 (1977) (emphasis added). In reviewing the Concklin’s complaint, it is alleged that Lewis knew or should have known of Will’s use of illicit drugs at the Fenwick property. In construing that allegation most favorably towards the plaintiff, this Court cannot infer that his knowledge of drug use is paramount to conducting or ‘carrying on’ the alleged dangerous activity. Further, ‘[c]ourts in this state have traditionally classified ultra-hazardous activities as those presenting an abnormally dangerous risk of injury to persons or their property, including the carrying out of blasting operations, the storage of explosives or harmful chemicals, and the harboring of wild animals.’ Leatherwood v. Wadley, 121 S.W.3d 682, 699 (Tenn. Ct. App.2003), perm. app. denied (Tenn. Sept. 2, 2003). Although this is not an exclusive list, this Court is not prepared to infer that the use of drugs and alcohol is to be included as an ultra hazardous activity. Accordingly, we affirm the trial court’s grant of the 12.02(6) motion as to the ultra hazardous claim against Lewis.” 138 S.W.3d at 222-23.

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§ 5.1       Generally

The Case: Stinson v. Carpenter, No. 01A01-9601-CV00036, 1997 WL 24877 (Tenn. Ct. App. Jan. 24, 1997).

The Basic Facts: Plaintiff struck and killed a bison that had wondered onto the highway on which he was driving. Plaintiff’s truck incurred significant damage. Plaintiff brought suit against the owner of a small herd of buffalos that had recently escaped in the area, although the buffalo hit by Plaintiff was without an ear tag that the all of the Defendant’s buffalos were allegedly marked with.

The Bottom Line: 

• “The owner of a domesticated animal may be held liable for the harm the animal causes if he or she negligently failed to prevent the harm. [Restatement (Second) of Torts] § 518(b) (1977). Thus, the owner of a domesticated animal must exercise such reasonable care to prevent the animal from injuring another as an ordinarily careful and prudent person would exercise under the same circumstances. Groce Provision Co. v. Dortch, [350 S.W.2d 409, 413 (Tenn. Ct. App. 1961)]. The owner cannot permit the animal to run at large, Tenn. Code Ann. § 44-8-401(a) (1993); Overby v. Poteat, [332 S.W.2d 197, 200 (Tenn. 1960)]; Wilson v. White, [102 S.W.2d 531, 533-34 (Tenn. 1936)], and cannot knowingly or negligently permit the animal to escape and fail to make reasonable efforts to capture it. See Way v. Bohannon, 688 S.W.2d 89, 91 (Tenn. Ct. App. 1985); Troutt v. Branham, 660 S.W.2d 502, 505 (Tenn. Ct. App. 1983); Groce Provision Co. v. Dortch, 49 Tenn. App. at 67, 350 S.W.2d at 413.” 1997 WL 24877 at *4.

Other Sources of Note: The 2007 General Assembly adopted new legislation that addresses the liability of dog owners for injuries caused by their dogs. See Tenn. Code Ann. § 44-17-201, et seq. There are several other statutes that establish a duty to keep animals from roaming at large. See, e.g., Tenn. Code Ann. § 44-8-109 (requiring that owners of “notoriously mischievous stock, known to be in the habit of throwing down or jumping fences” keep such livestock confined on their premises or suffer liability for damage to enclosure or crops of another); Tenn. Code Ann. § 44-8-401 (making it unlawful for owners of livestock to willfully allow the same to run at large); Tenn. Code Ann. § 44-8-403 (providing that no person shall suffer any stallion or jackass over fifteen months old to run at large); and Tenn. Code Ann. § 44-8-408 (making it generally unlawful for a person owning or having control of a dog to allow the dog “to go upon the premises of another, or upon a highway, or upon a public street”). McElroy v. Carter, 2006 WL 2805141 (Tenn. Ct. App. Sept. 29, 2006) holds that a cat owner did not have a duty to prevent her cat from entering on the plaintiff’s land and causing damages to plaintiff’s vehicle.

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This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Tennessee Tort Cases.  The book will be available about May 1, 2010.  To order the book go here.

§ 4.1       Generally

The Case: Jamison v. Ulrich, 206 S.W.3d 419 (Tenn. Ct. App. 2006).

The Basic Facts: Plaintiff was an animal control officer with Animal Services Division of the City of Chattanooga Police Department. Plaintiff went to Defendant’s home to take possession of their Doberman pinscher. Upon doing so, the dog bit the officer, causing injuries.

The Bottom Line: 

• “The issue presented in this case is whether the policemen and firemen’s rule applies to an animal control officer who was bitten by a Doberman pinscher while performing the duties of his employment.” 206 S.W.3d at 419.

• “The policemen and firemen’s rule precludes firefighters and police officers from recovering damages for injuries arising out of risks peculiar to their employment. This rule was first adopted in Tennessee in the 1915 decision of Burroughs Adding Machine Co. v. Fryar, 179 S.W. 127 (Tenn. 1915) (a police officer injured as a result of a business owner’s negligence could not recover damages). The rule was most recently reaffirmed by the Tennessee Supreme Court in Carson v. Headrick, 900 S.W.2d 685 (Tenn. 1995), wherein the Court ruled that sound public policy considerations supported the continuation of the rule based on the nature of the duty of police officers and the relationship between the officers and the public they protect.” Id. at 422.

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This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Tennessee Tort Cases.  The book will be available about May 1, 2010.  To order the book go here.

§ 3.2       Liability for Punitive Damages

The Case: Loope v. Goodings Million Dollar Midways, Inc., 553 S.W. 2d 573 (Tenn. 1977).

The Basic Facts: Female Plaintiff received an electrical shock while attempting to board a midway ride at the Knox County Fair. Defendant appealed a jury verdict in favor of Plaintiff and her husband. 

The Bottom Line: 

• “[C]onduct by one charged only with ordinary care might amount to simple negligence, but when done by a person charged with a higher degree of care, such as a common carrier or a supplier of electricity, that same conduct could amount to gross negligence or to willful and wanton conduct justifying an award of punitive damages.” 553 S.W. 2d at 575.

Other Sources of Note: The law of punitive damages is discussed in Chapter 64 of Day on Torts: Leading Cases in Tennessee Tort Law.

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This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Tennessee Tort Cases.  The book will be available about May 1, 2010.  To order the book go here.

Amusement Parks

 § 3.1    Liability of Operator

 The Case: Loope v. Goodings Million Dollar Midways, Inc., 553 S.W. 2d 573 (Tenn. 1977).

The Basic Facts: Female Plaintiff received an electrical shock while attempting to board a midway ride at the Knox County Fair. Defendant appealed a jury verdict in favor of Plaintiff and her husband. 

The Bottom Line:

·         “[Ride operator] owed the highest degree of care to its patrons, or that degree of care which the most prudent person would be expected to exercise in the maintenance, inspection and repair of such equipment.” 553 S.W. 2d at 574.

·         “[C]onduct by one charged only with ordinary care might amount to simple negligence, but when done by a person charged with a higher degree of care, such as a common carrier or a supplier of electricity, that same conduct could amount to gross negligence or to willful and wanton conduct justifying an award of punitive damages.” Id. at 575.

Other Sources of Note: The Loope Court cited with approval the decision in Lyons v. Wagers, 404 S.W.2d 770 (Tenn. Ct. .App. 1966). The Lyons Court stated “that the operator of an amusement ride owes his patrons the same degree of care owed by a common carrier to its passengers, which is ‘the highest degree of care — that care which the most prudent man would be expected to exercise under circumstances similar to those shown in evidence, in the design, construction, maintenance, inspection, and repair of his vehicle and its approaches and exits.’” Id. at 274.

There is an extensive discussion of the liability of the property owner (as distinguished from the ride operator) in Lyons. Readers who are researching the liability of a property owner may wish to review the discussion of this issue in the Lyons opinion. There is not a separate section addressing the liability of the property owner because of the substantial changes in premises liability law in Tennessee since 1966 and because there are no decisions that discuss the issue since the law has changed.

There are numerous statutes that address the business of amusement rides. They are codified at Tenn. Code Ann.§ 68-121-101, et seq.

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This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Tennessee Tort Cases.  The book will be available about May 1, 2010.  To order the book go here.

Abuse of Process

The Case: Givens v. Mullikin, 75 S.W.3d 383 (Tenn. 2002).

The Basic Facts: Plaintiff initially brought suit against Defendant after she was injured in an automobile accident. The Defendant’s insurance company then hired an attorney to defend the Defendant. This attorney engaged in substantial discovery, but was eventually fired and replaced by a new law firm. The new firm then engaged in extensive discovery of its own. Plaintiff then brought a separate action on a theory of vicarious liability for the defense attorneys’ alleged abuse of process, inducement to breach express and implied contracts of confidentiality, inducement to breach a confidential relationship, and invasion of privacy during discovery. 

· “The plaintiff first asserts that the allegedly abusive actions of the Richardson Firm in conducting discovery constituted an abuse of process, a tort for which we have long recognized a remedy. See Priest v. Union Agency, [125 S.W.2d 142 (Tenn. 1939)]. As this Court has acknowledged, ‘the gist of the tort is not commencing an action or causing process to issue without justification, but misusing, or misapplying process justified in itself for an end other than that which it was designed to accomplish.’ Bell ex rel. Snyder, 986 S.W.2d at 555 (quoting W. Page Keeton et al., [Prosser and Keeton on the Law of Torts] § 121, at 897 (5th ed. 1984)). To this end, a plaintiff must establish by evidence two elements to recover for abuse of process: ‘(1) the existence of an ulterior motive; and (2) an act in the use of process other than such as would be proper in the regular prosecution of the charge.’ Id. (quoting Priest, [125 S.W.2d at 143]); see also Donaldson, 557 S.W.2d at 62.” 75 S.W.3d at 400-01.

The Bottom Line:

§ 1.1       Generally

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