Tennessee Tort Buffet

The  recent Tennessee Court of Appeals opinion n Davis v. Covenant Presbyterian Church discussed a host of issues.

What is Required to Properly Allege Vicarious Liability?

The Court of Appeals affirmed dismissal of vicarious liability claims against two religious organizations (one unincorporated and one a nonprofit corporation). The plaintiffs’ allegations against both organizations were essentially that each defendant existed under the laws of a state and had a principal place of business there, and had “actual and/or apparent authority” over another corporation, Covenant. The plaintiffs’ complaint did not explain how either defendant had authority over Covenant or anything else factual to create a principal/agent relationship with Covenant. Nonetheless, the plaintiffs alleged that both of the religious organization defendants were vicariously liable for Covenant and all of Covenant’s employees and agents. Because the plaintiffs’ complaint lacked any factual basis for asserting vicarious liability, the Court of Appeals affirmed dismissal of both religious organizations.

So what was missing? Any fact as to how the two religious organizations gave authority (or appeared to give authority) to the other defendants to act on their behalf in the conduct at issue in the case. Even an employer generally does not have responsibility over employees outside of business hours. Just saying “authority” and “vicarious liability” is not enough – you have to put them in the scope of activities for which the principal would be vicariously liable.

The Difference Between Publicity and Publicly

The Court of Appeals affirmed dismissal of false light invasion of privacy claims. The plaintiffs in the case claimed that the defendants had revealed false information to the plaintiffs’ “third-party family members” and “individuals that have personal relationships with plaintiffs.” Unfortunately, for the plaintiffs,

“Publicity,” . . . means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. The difference is not one of the means of communication, which may be oral, written or by any other means. It is one of a communication that reaches, or is sure to reach, the public.

Thus it is not an invasion of privacy, within the rule stated in this Section, to communicate a fact concerning the plaintiff’s private life to a single person or even to a small group of persons.

RESTATEMENT (SECOND) OF TORTS § 652D cmt. a (quoted in Secured Financial Solutions, LLC v. Winer, No. M2009-00885-COA-R3-CV, 2010 WL 334644, at *4 (Tenn. Ct. App. Jan. 28, 2010)).

So in this case, family members and others who have personal relationships with the plaintiffs was construed as “a small group of persons” insufficient to qualify as “publicity.”

Which begs the question: how many Twitter followers do you need for your posts to count as “publicity”? 

Not All Harassment is Malicious Harassment

Malicious harassment claims are codified at Tenn. Code Ann. § 4-21-701. They require that the defendant have intentionally intimidated the plaintiff from freely exercising a constitutional right and that the harassment was motivated by the victim’s race, color, religion, ancestry, or national origin.

In Davis v. Covenant Presbyterian Church, the plaintiffs claimed they were harassed because they were “privy to information concerning the defendants’ fraudulent concealment of the unlawful sexual abuse.” The Court of Appeals affirmed dismissal of the claim because the plaintiffs did not allege it was based on any of the motivations required for a malicious harassment claim. The Court of Appeals reversed dismissal of an assault claim based on essentially the same conduct, as assault does not have to be motivated by race, color, religion, ancestry, or national origin.

Fitting the Square Peg of Intentional Acts into the Round Hole of Negligence

The Court of Appeals also affirmed dismissal of a claim for negligence. The plaintiffs’ complaint stated that the defendants’ conduct “fell below the applicable standard of care.” The plaintiffs alleged, however, that the defendants “promoted a ‘hostile environment, failed to refrain from, inter alia, ‘attacking,’ ‘threatening,’ ‘harassing,’ ‘physically separating,’ ‘following,’ ‘blocking movement,’ and ‘verbally accosting’” the plaintiffs. The Court of Appeals agreed with the trial court that this sounded a lot more like intentional acts than negligence, even if framed as falling below a standard of care.

Civil Conspiracy of Fraudulent Concealment Does Not Include Concealment of Injuries to Non-Parties

Finally, the plaintiffs sued their former church and various individuals relating to the church. One of the plaintiffs’ claims was for “civil conspiracy,” and the plaintiffs specifically alleged that the defendants worked together to conceal molestations of a child or children. (The complaint seems to have been alternatively pled as if there were one victim but possibly more to be discovered.) Importantly, the complaint did not allege that the plaintiffs themselves were victims of the child sexual abuse.

Any civil conspiracy requires the conspirators be engaged in an underlying, actionable tort. The Court of Appeals began by trying to figure out what exact underlying tort the plaintiffs were trying to claim. The Court of Appeals determined that the plaintiffs must be claiming a conspiracy to commit the tort of fraudulent concealment.

Looking to Redwing v. Catholic Bishop for the Diocese of Memphis, 363 S.W.3d 436, 462-63 (Tenn. 2012), the Court of Appeals concluded:

[A] cause of action for fraudulent concealment applies only when the defendant engages in conduct intended to conceal the plaintiff’s injury from the plaintiff, or when the defendant engages in conduct intended to conceal the identity of the person or persons who caused the plaintiff’s injury from the plaintiff.

Again, the plaintiffs in this case alleged that there was a conspiracy to conceal abuse of some unidentified “child and perhaps other children.” Because the plaintiffs did not allege that the plaintiffs themselves were abused, they could not succeed on a claim of fraudulent concealment, or of a civil conspiracy claim based upon it.