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Dismissal Based on Lack of Foreseeability Reversed.

Where plaintiffs, who were suing on behalf of an employee of an independent contractor on a construction project, alleged facts sufficient to meet the “minimum threshold of foreseeability” against the defendant general contractor, and where discovery had not yet occurred to allow for the inspection of the contracts between the relevant parties, dismissal of plaintiffs’ wrongful death claim against the general contractor was reversed.

In Thompson v. Southland Constructors, No. M2019-02060-COA-R3-CV (Tenn. Ct. App. Nov. 6, 2020), plaintiffs were the decedent’s children, who had died while working as a plumber on a construction project. The project involved building a new gym for Welch College, and before the decedent’s involvement in the project, a different plumping company had laid a sewer line. The day before the gym was scheduled to be used for the first time, general contractor Southland Constructors discovered that the sewer line had not actually been connected to the building before it was buried. Southland then called Mitchell Plumbing, the decedent’s employer, and the decedent was sent to connect the pipe. According to the complaint, Southland advised Mitchell Plumbing that the trench dug to correct the problem would be about 15 feet long and 3 feet deep, but it ended up being both longer and deeper. The complaint alleged that no materials were used to shore up the trench based on the representations made by Southland, that the general contractors failed to have traffic stopped at a nearby parking lot, and that the “soil in the area was in an especially dangerous condition because it was wet and loose due to the previous excavation.” Soon after the decedent got into the trench to repair the sewer line, the walls collapsed, and he was killed.

Plaintiffs brought this wrongful death action against several defendants, including defendant Focus Design Builders, who plaintiffs alleged had “responsibility as a general contractor and site manager to make sure and ensure that no dangerous and hazardous conditions existed on said property and premises.” Focus Designs filed a motion to dismiss, which the trial court granted, finding that plaintiffs had not shown that the injury was foreseeable. On appeal, the dismissal was reversed.

In Tennessee, “the employee of an independent contractor enjoys the status of an invitee while performing work on the premises of the owner-contractee.” (internal citation omitted). Accordingly, “the premises owner owes the employee the duty to exercise reasonable care to see that an employee has a reasonably safe place to work.” (internal citation and quotation omitted). In cases involving the injury of a subcontractor employee, Tennessee courts “have looked to, among other things, the contracts governing the relationships between the landowners, prime contractors, and subcontractors to examine the scope of the parties’ respective duties.” (internal citations omitted).

When analyzing whether the dismissal was appropriate here, plaintiffs pointed out that they had not yet been allowed to conduct discovery of the contracts at play, and the Court of Appeals agreed that this was a crucial consideration. The Court stated that “plaintiffs were entitled to conduct discovery to substantiate their claims that Focus Design undertook a duty to oversee and supervise the construction project, inspect the work done by subcontractors, and warn employees of hazardous conditions.”

The trial court had based its decision to dismiss primarily on its finding that “the chain of events leading to Decedent’s death was unforeseeable.” Regarding foreseeability, the Court of Appeals explained:

A risk is foreseeable if a reasonable person could foresee the probability of its occurrence or if the person was on notice that the likelihood of danger to the party to whom is owed a duty is probable. …Although no duty will arise when a risk of injury is not generally foreseeable, foreseeability alone is not, in and of itself, sufficient to create a duty. Rather, when a minimum threshold of foreseeability is established, courts must engage in an analysis of the relevant public policy considerations, to determine whether a duty enforceable in tort must be imposed. … The question of whether Plaintiffs have demonstrated a minimum threshold of foreseeability, and thereby established a prima facie case of specific foreseeability, is inextricably intertwined with questions of what Focus Design knew or reasonably should have known, and when.

(internal citations and quotations omitted).

With this background in mind, the Court pointed out that plaintiffs alleged that there were questions regarding whether Focus Design knew that Mitchell Plumbing had been called to fix the pipe, whether they should have known that the previously excavated soil posed additional dangers and whether they should have been aware that the plumbing pipe was not previously attached. Plaintiffs also alleged that Focus Design failed to close a nearby parking lot to traffic, which caused vibrations that directly contributed to the trench’s walls falling in. Noting that the defendant had “not cited any appellate opinion upholding a trial court’s dismissal of a complaint on the ground that the plaintiff was unable to establish a minimum threshold of foreseeability,” the Court of Appeals reversed the dismissal, finding that “Plaintiffs [had] made a threshold showing of foreseeability.” The Case was accordingly remanded to the trial court.

This opinion demonstrates that motions to dismiss based solely on a lack of foreseeability should very rarely (if ever) succeed. Foreseeability is a fact-intensive inquiry and is thus not generally a proper basis upon which to dismiss a case before any discovery has occurred.

NOTE:  This opinion was released eight weeks after the oral argument.

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