Use of Internal Policies Can Be Used to Prove Violations of Reasonable Care

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.

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