Articles Posted in General Negligence Action

In a somewhat rare move, the Tennessee Court of Appeals recently overturned a trial court’s ruling for plaintiff in a negligence case. In Tenn. Farmers Mut. Ins. Co. a/s/o Couch v. Jackson Madison School System Bd. of Educ., No. W2014-02218-COA-R3-CV (Tenn. Ct. App. June 15, 2015), plaintiff was driving a crop sprayer on a narrow, rural, unlined road. Plaintiff saw a school bus turn onto the road traveling towards the crop sprayer, and both parties agreed that there was not room for both vehicles on the road. According to the trial testimony, the sprayer would have had time to stop but chose not to do so. Plaintiff testified that had he stopped, the accident probably would have been avoided. Instead, plaintiff moved the right tires of the sprayer off the road and, after clearing the bus, the shoulder gave way and the sprayer fell into a ditch, causing fairly significant property damage. Plaintiff sued the bus driver for negligence, alleging that there was more unpaved shoulder on the bus’s side of the road and that the bus driver did not take reasonable care to move his vehicle as far right as possible to avoid the accident.

The trial court ruled that defendant bus driver “was negligent in failing to take reasonable action to avoid an accident under the circumstances that existed at the time of the accident and that the [bus driver] could have foreseen an accident happening through the use of reasonable care.” The Court of Appeals, however, overturned this ruling.

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In Hayes v. Coopertown’s Mastersweep, Inc., No. W2014-00783-COA-R3-CV (Tenn. Ct. App. April 17, 2015), plaintiffs brought a negligence claim based on the alleged negligent inspection of their fireplace. Two issues were addressed on appeal—whether defendant owed a duty of care to plaintiffs and whether this case fell under the four-year statute of repose applicable to injuries to real property related to deficient design and construction.

In 2000, plaintiffs purchased a house built in 1964 that had a fireplace, which plaintiffs had remodeled by a third party. Part of this remodel included lowering the firebox to be flush with the floor. The remodeled fireplace did not work well, allowing smoke to escape into the den, the upper floors and the attic. Plaintiffs thus hired defendant to inspect the fireplace and determine what was causing the smoke issues. Plaintiffs did not tell defendant about the previous fireplace renovations or that the firebox had been lowered. Defendant performed the inspection requested, and part of the defendant’s work “went beyond the inspection that [plaintiffs] contracted for,” including inspecting beneath the fireplace from the crawlspace and drilling into the fireplace to determine whether any combustible material was coming into contact with the fireplace. Because of the design and construction of the fireplace, however, “there were areas underneath the fireplace that could not be seen or inspected” by defendant. Defendant made certain redesign recommendations based on his inspection, and plaintiffs hired defendant to perform the recommended work. Defendant completed this work on October 8, 2003. Subsequently, on January 17, 2005, plaintiffs’ home was damaged by fire when “wooden floor joists that had been in contact with the firebox ignited from exposure to heat generated by the fireplace,” a problem related to the first remodel done by the unnamed third party.

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Under what circumstances can a franchisor be held vicariously liable for torts that occur on the premises of a franchisee?

A relatively recent court opinion has an excellent discussion of the law in this area, addressing not only the law of the state where the cause of action arose (New Mexico) but also the law from around the nation.  In Estate of Anderson v. Denny’s, 2013 WL 6506319 (D.N.M. Nov. 13, 2013) the court held that a genuine issue of material fact existed on the issue of whether the franchisor was vicariously liable for the franchisee’s alleged negligence, turning on the issue of right of control.


The plaintiff in Akers v. McLemore Auction Co., LLC, No. M2012-02398-COA-R3-CV (Tenn. Ct. App. May 27, 2014) chose to hire an auction company to sell his real and personal property that the plaintiff valued at more than $350,000, but chose to go pro se in suing the auction company. That might explain why the appellate opinion needed ten pages to summarize – and affirm – the trial court’s Tenn. R. Civ. P. 12.02(6) dismissals on the plaintiff’s four claims against more than twenty defendants.

One potentially helpful nugget for other cases is the appellate court’s discussion of the dismissal of claims against an individual defendant affiliated with the auction company. The plaintiff alleged, in pertinent part, that the individual defendant was a “person” who called himself the auction company’s President, but who was really the sole member of the auction company’s LLC. The trial court dismissed the claims against the individual defendant under Rule 12.02(6), finding there were no facts to support the plaintiff’s allegation that the defendant “was acting outside his capacity as agent for [the auction company] at any time.”

The Court of Appeals concluded that the trial court erred on this point. A trial court is bound to review only the complaint for purposes of Rule 12.02(6), and nothing in the complaint alleged that the individual defendant was ever acting on behalf of the auction company. For this reason, he should not have been dismissed.

At trial, however, the same claims that the plaintiff made against the individual defendant – negligent and professional misrepresentation – were tried against the auction company, and resulted in a defense verdict. Since the trial court had concluded that any conduct by the individual defendant must be imputed to the auction company as his principal, that meant the plaintiff effectively lost on the proof anyway. Accordingly, the Court of Appeals affirmed the trial court in all respects.

I am not sure why the trial court would dismiss the individual defendant even if the individual was alleged to be acting in the course and scope of his agency relationship with the company. For tort claims like misrepresentation, a plaintiff may sue the principal, the agent, or both. An agent cannot evade personal financial responsibility for torts like misrepresentation merely because it was committed partly or fully for the benefit of the principal. The result in this case, though, is still the same – the misrepresentation claims were tried by the plaintiff and lost on the facts, and there’s no reason for a do-over.

A recent opinion of the Tennessee Court of Appeals in case reminds us that a company’s internal policies, while not dispositive, are relevant to the standard of care for its employees.

After a bench trial, the trial court found Defendant was not negligent, and the Court of Appeals reversed based on the testimony of Defendant’s employees.  Defendant provides door-to-door transportation services, with many of the passengers elderly or disabled. Defendant’s driver testified that he was aware of Defendant’s policies and procedures, particularly those requiring the driver to be aware of any walking surfaces that the passenger must travel upon, and those requiring the driver to keep a passenger within the driver’s line of vision in case the driver needs assistance. The driver also admitted that Defendant had a written policy requiring the driver to stay close to the passenger while walking in case the passenger needed assistance.

In this case, the driver testified that he noticed before picking up the passenger that there was frost on the ramp the passenger would use to exit her home. While the passenger was on the ramp, the driver turned back into the passenger’s home to get a bag for her. When he turned back, he saw that she was falling but she was six to eight feet away from him, which the driver admitted was not close enough to provide assistance. The Court of Appeals found this evidence preponderated against the trial court’s finding that the driver was not negligent.

The Court quoted its prior holding regarding the relevance of company policies to determining the duty owed by company employees:

Courts customarily define the scope of a duty or a particular standard of care by looking to the statutes, regulations, principles, and other precedents that make up the law. Dill v. Gamble Asphalt Materials, 594 S.W.2d 719, 721 (Tenn. Ct. App. 1979); Restatement (Second) of Torts § 285 (1964). However, they may also consider evidence that tends to establish a custom representing the common judgment concerning the risks of a particular situation and the precautions required to meet them. Restatement (Second) of Torts § 295A cmt. b (1964). Thus, company work rules, while not controlling, are admissible to demonstrate what the company’s employees should have done in a particular situation. 3 Fowler V. Harper, et al., The Law of Torts § 17.3 at 587 (2d ed. 1986); Fleming James, Jr. & David K. Sigerson, Particularizing Standards of Conduct in Negligence Trials, 5 Vand. L. Rev. 697, 712-13 (1952);  , 215 Conn. 377, 576 A.2d 474, 479 (1990).

White v. Metro. Gov’t of Nashville & Davidson Cty., 860 S.W.2d 49, 52 (Tenn. Ct. App. 1993).

The case is Wilson v. East Tennessee Human Resource Agency, Inc.,  No. E2010-0172-COA-R3-CV (Tenn. Ct. App. April 29, 2011).  Use this decision as a weapon not only to introduce those policies and procedures into evidence but also to be permitted to discover their existence.

The Tennessee Administrative Office of the Courts has released the 2009-2010 Annual Report of the Tennessee Judiciary.   Over the next few days I will share some data from the Report.

We begin with medical malpractice cases.  In the fiscal year ending June 30, 2010, 429 medical malpractice cases were resolved by judgment, settlement or dismissal.  Only 324 new cases were filed.  

There were only 30 medical malpractice cases actually tried in state court in Tennessee during the fiscal year.  The total awards for the patient in those cases were $7,128,800.  Unfortunately, the Report does not indicate the number of cases won by the patient or by the health care provider.  Historically, that number is about 20% of all trials.

Here are the medical malpractice filings and dispositions for the larger counties"

County                              Filings                                 Dispositions

Davidson                            67                                           107

Shelby                                100                                          117

Knox                                     33                                           45

Hamilton                             14                                           25

Sullivan                                11                                           16

Madison                                 6                                            8

Washington                           9                                           10

Green                                      0                                             2

These numbers are exactly what we would expect given prior data after the adoption of the pre-suit notice and certificate of good faith statutes.  For example, in the fiscal year ending June 30, 2008, the last fiscal year before the reform act went into effect October 1, 2008, there were 537 cases filed.  The data once again demonstrates that there are an extremely few number of medical malpractices cases filed in Tennessee state courts and that the number is dropping.

If you had the feeling that the defense is pushing more cases to trial you are correct.  For example, in 2007-08 only 20 medical malpractice cases were tried in state court.

The data also confirms the complaints of the medical malpractice defense bar.  The number of cases being filed is down significantly and the number of pending cases is also declining (because dispositions exceed new filings).   This is one reason why we see defense lawyers working existing cases harder – they simply have less to do.  

Tomorrow I will file a post on tort cases in general.

What does tort law tell us about liability for injuries arising during sporting events and, in particular, contact sports?  The recent case of Feld v. Borkowski gives us the answer, at least from the standpoint of the Iowa Supreme Court.

Plaintiff and defendant were playing intramural softball .  Defendant hit the ball and let go of the bat at the same time.  The bat flew through the area, striking and injuring plaintiff (who was playing first base).  Plaintiff filed a negligence suit, and defendant sought dismissal of the suit arguing that softball was a contact sport and thus he could only be sued if his conduct was reckless.

The Iowa Supreme Court agreed, saying that 

[w]hile the duty to exercise reasonable care accompanies each individual in most all activities of life, some activities or circumstances have been excepted from the reasonable-care duty in favor of the imposition of a less stringent duty of care for participants in the activity to protect others from injury.  . . . One such activity that has been identified as an exception is contact sports. Prior to our decision in Thompson to follow the analytical framework of the Restatement (Third) of Torts for claims of negligence involving physical harm, we followed other states in excepting participants in contact sports from constraining their actions under the conventional duty to act as a reasonable person. See Leonard ex rel. Meyer v. Behrens, 601 N.W.2d 76, 81 (Iowa 1999).  In finding the game of paintball to be a contact sport in Leonard, we imposed a duty for participants in the sport to merely refrain from reckless or intentional conduct. Id. at 81 …  This standard recognizes that known risks associated with a contact sport are assumed by participants in the sport, and it is inapposite to the competitiveness of contact sports to impose a duty on participants to protect coparticipants from such known and accepted risks through the exercise of reasonable care.  See Leonard, 601 N.W.2d at 79 & n.3 (noting assumption of the risk in its primary sense is a defense to negligence). The standard also recognizes that athletes who step onto the playing field to compete are not completely free from legal responsibility for their conduct that creates a risk of injury, but are restrained under a substantially lower duty of care. See Nabozny v. Barnhill, 334 N.E.2d 258, 260-61 (Ill. App. Ct. 1975).   (Footnotes omitted).

A majority of the Iowa Court went on to conclude that   "softball for purposes of tort liability is a contact sport, and this conclusion is sufficient to transform liability for an injury sustained by a participant while engaged in the sport from a standard of negligence to a standard of recklessness. Clearly, batting is normal activity in the sport of softball and creates a risk of harm to participants in a number of ways, including a risk that the bat will be released during the swing in some way and will become an instrument of harm to participants in some way."   Thus, the Court held that the plaintiff had to demonstrate that defendant was reckless before liability could be imposed for the injuries.

Finally, the Court concluded that reasonable minds could differ on whether as to whether defendant’s swing and release of the bat was reckless, and thus reversed the earlier dismissal of the case.

The case is Feld v. Borkowski,  No. 07-133 (Iowa Oct. 22, 2010).

The Iowa Supreme Court has released an opinion in Thompson v. Kaczinski, 2009 WL 3786632 (Iowa 2009) and adopted the Restatement (Third) of Torts approach to both duty and causation. The case arose after  "a motorist lost control of his car on a rural gravel road and crashed upon encountering a trampoline that had been displaced by the wind from an adjoining yard to the surface of the road. He and his spouse sued the owners of the trampoline."  The lower court dismissed the case, holding that the defendants did not owe a duty to the plaintiffs and that causation did not exist as a matter of law.

“An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.” Restatement (Third) of Torts: Liab. for Physical Harm § 7(a), at 90 (Proposed Final Draft No. 1, 2005).  As the Court explained, "

[I]n most cases involving physical harm, courts “need not concern themselves with the existence or content of this ordinary duty,” but instead may proceed directly to the elements of liability set forth in section 6. Id. § 6 cmt. f, at 81. The general duty of reasonable care will apply in most cases, and thus courts “can rely directly on § 6 and need not refer to duty on a case-by-case basis.” Id. § 7 cmt. a, at 90.

The Court went on to explain that 

The drafters [of the Restatement] acknowledge that courts have frequently used foreseeability in no-duty determinations, but have now explicitly disapproved the practice in the Restatement (Third) and limited no-duty rulings to “articulated policy or principle in order to facilitate more transparent explanations of the reasons for a no-duty ruling and to protect the traditional function of the jury as factfinder.” Id. at 98–99. We find the drafters’ clarification of the duty analysis in the Restatement (Third) compelling, and we now, therefore, adopt it.

The Iowa Court then had to confront the issue of causation and once again turned to the Restatement (Third) to clarify its law on the issue.   In the Restatement, 

the drafters have opted to address factual cause and scope of liability (proximate cause) separately. Restatement (Third) ch. 6 Special Note on Proximate Cause, at 575. The assessment of scope of liability under the Restatement (Third) no longer includes a determination of whether the actor’s conduct was a substantial factor in causing the harm at issue, a question properly addressed under the factual cause rubric. See id. § 27 cmt. j, at 427–29. 

Most importantly, the drafters of the Restatement (Third) have clarified the essential role of policy considerations in the determination of the scope of liability. “An actor’s liability is limited to those physical harms that result from the risks that made the actor’s conduct tortious.” Id. § 29, at 575. This principle, referred to as the “risk standard,” is intended to prevent the unjustified imposition of liability by “confining liability’s scope to the reasons for holding the actor liable in the first place.” Id. § 29 cmt. d, at 579–80.

So the facts, did the landowners have a duty to the motorist?  Yes, under the Restatement test they had a duty to protect others from a risk of foreseeable harm.  Should the case have dismissed on the causation issue?

We conclude the question of whether a serious injury to a motorist was within the range of harms risked by disassembling the trampoline and leaving it untethered for a few weeks on the yard less than forty feet from the road is not so clear in this case as to justify the district court’s resolution of the issue as a matter of law at the summary judgment stage. A reasonable fact finder could determine [defendants] should have known high winds occasionally occur in Iowa in September and a strong gust of wind could displace the unsecured trampoline parts the short distance from the yard to the roadway and endanger motorists. Although they were in their home for several hours after the storm passed and approximately two-and-a-half hours after daybreak, Kaczinski and Lockwood did not discover their property on the nearby roadway, remove it, or warn approaching motorists of it. On this record, viewed in the light most favorable to the Thompsons, we conclude a reasonable fact finder could find the harm suffered by the Thompsons resulted from the risks that made the defendants’ conduct negligent.

I would urge my fellow tort law lovers to read this opinion.  Many of you who are also Tennesseans would note that the approach to duty adopted by the Iowa Supreme Court is one that Chief Justice Janice Holder has (unsuccessfully) urged on her colleagues at the Tennessee Supreme Court for many, many years. For but one example, read then-Justice Holder’s dissent  in Hale v. Ostrow, 166 S.W. 3rd 713 (Tenn. 2005).

Thanks to Torts Prof for bringing this opinion to my attention.


I grew up in Spencer, Wisconsin, a village of about 1000 (less in the 1960 census, more in the 1970 census) in North Central Wisconsin.  The closest city was Marshfield, at eight miles to the south on Highway 13,  which at the time had about 15,000 people, a J.C. Penny store,  a mail order-only Sears store and, by the time I was a senior in high school in 1973-74, a McDonald’s.   My home county had more dairy cows than people.  When I tease my wife about her hometown (Karns, Tennessee), she quickly reminds me that at least her birthplace had a red light and a Hardee’s.  We had neither, although from time to time in some summers we had a local family run a root beer stand that we referred to as the "ringworm stand" because of a physical affliction suffered by several employees.

You get the picture.

Every June we had a three-day festival called "Spencerama," which provided not only a parade, a Spencerama Queen, and a carnival but, most importantly, a three-day excuse to drink beer to excess in an outdoor public place (as opposed to a indoor public place offered by one of the six bars in town).  This extravaganza was held in the Spencer Village Park, just across the parking lot from the fire station.  The carnival surrounded a wooden pavilion built to house (you guessed it) the beer garden.

To say that Spencerama was the highlight of the year in this little town would be a gross understatement.  The Lions Club and the Jaycees worked like dogs to plan for this event.  Who would work the beer garden when?  Who would cook the brats and burgers when?  Who would run the tractor pull?  Who would run the mini-tractor pull?  Who would supply the pigs for the greased pig contest? 

The town was abuzz  with questions for months preceding Spencerama Days.  Would Mike Engle be willing to take on the wrestling bear again this year?  You know he’s over 70!  (That’s no BS, Mike was as agile and tough as hell and used to wrestle a bear when he ((not the bear)) was over 70.)   Would the Spencer Volunteer Fire Department beat the jerks from Loyal in the water barrel fight?  Would the Woodkey boys beat the hell out of someone else or each other this year at bar time?  Would the greasers from Colby start a big fight on Saturday night just like they did last year?

Of course, for most of the kids the carnival was the big deal.  We had a Ferris wheel, an octopus ride, a mixer ride, and an assortment of kiddy rides.  We had the obligatory games – floating ducks, knock-over-the-cats-with-a-baseball, pitch-the-penny-into-the-glass-dish, etc.  And, we had the dunking machine, occupied by local dignitaries who were willing to take a cold bath in public if a citizen could hit the bull’s-eye.

But for me it was all about the carnies.  You see, we had poor people back home – you don’t make a lot of money milking 35 cows on an 80-acre farm.  And we had a fair number of losers, most of whom were plagued by an greater-than-usual addiction to alcohol and were completely harmless, drunk or sober. 

But when the carnies came to town a whole new world was opened to the honest souls of Spencer.  Carnies were different.   They had all dropped out of high school, a rarity in my hometown.  They had unshaven faces and greasy long hair.  They were really, really skinny but had muscular arms.  They had tattoos.  (In the old days, the only men who had tattoos were guys who either had been in the Navy or were carnies.)  Even the female carnies had tattoos.  (No women had tattoos in Northern Wisconsin in the 60s and 70s.)   Carnies had fingers stained yellow from chain-smoking Lucky Strikes.  They had bad teeth.  To the kids in Spencer the carnies were like the gypsies that roamed Wisconsin in the 1930s and 40s, the horrible people who would steal food and property and even children.  At least that what our parents told us, and we believed it.

The carnies moved into town on Tuesday night or Wednesday morning, a parade of old cars and trucks pulling ancient, small travel trailers in decrepit condition.  They smoked and they drank and they did drugs and they ogled the local girls and one of them stole my brother’s bicycle.  (He really did – one of those damn carnies stole my brother Tom’s  bicycle.)  And they put up rides, old rides comprised of rusty metal, rides that made an awful racket when they were working and an eerie silence when they did not.  Rides that shook and shimmered and  broke down, leaving teenage girls screaming at the top of their lungs at the top of the Ferris wheel.  These screams could be heard over the  rock ‘n roll music blaring from carney 8-track tape players amplified through huge speakers, bass turned to "10," which competed with  the accordion player and the tuba player and the rest of the polka band  playing at the Beer Barrel Polka at the beer garden.

I observed this.  All of this.  Carefully.  For hours at a time.  Year after year.  And eventually, at the age of 13 or 14, I thought  "why in heaven’s name would I risk my life by getting on an amusement ride of undeterminable age assembled and disassembled every single week by a bunch of skinny, uneducated, chain-smoking, drug-taking, tattoo-bearing, local girl-ogling, bicycle-stealing carnies?  So I didn’t.

And to this day I won’t.  Now, deep down inside I know that the folks that design, assemble and maintain the rides at Disneyland, Six Flags and the like probably have more education than I do.  And I know that if they smoked any dope they did it a long time ago and they didn’t inhale.  But every time I look at an amusement ride I think of those carnies in Spencer, Wisconsin over 35 years ago and I just say "No."

So, my thirteen year-old son thinks I am a wimp and my seventeen year-old daughter refuses to understand why I will not get on a ride with her at Six Flags.  My daughter Kate, just eighteen months old, will assume that it is fear of a broken hip secondary to osteoporosis that causes me to avoid the wooden roller coasters at Wisconsin Dells when she becomes of age.  But my children have never seen a carnie, and I have, and I cannot erase the image forever burned in my mind:  that skinny, greasy chain-smoking carney, a naked woman tattooed on his arm, maniacally laughing  into the warm wind on a June night in America’s Heartland as he rides off on my brother’s green Schwinn across Clark Street and into the alley behind Minerva’s Bar, secreting it amide the mass of metal that, in just a few days, will be the Ferris wheel at the Hodag Country Festival. Sorry kids, there ain’t no way. 

So, patient reader, you might ask "what this has to do with torts?"  Well, Bill Childs at Torts Prof advised me of a story in the Tennessean that reminded me that Tennessee passed a law a couple years ago that mandates that amusement ride operators have a $1M in liability insurance.  T.C.A. Sec. 58-36-101 et seq.  A second statute just came into effect that mandates a system of inspection for rides.  T.C.A. Sec. 68-121-120.

That’s what.