There is No Claim for Negligent Infliction of Emotional Distress on Solely Property Damage Loss Cases in Tennessee

Posted on Apr 30 2017 1:56PM by Attorney, Jason A. Lee

The Tennessee Court of Appeals in Richard Lane, et al v. Estate of Gary K. Leggett, No. M2016-00448-COA-R3-CV, 2017 WL 1176982 (Tenn. Ct. App. 2017) discussed whether a Plaintiff can recover for Negligent Infliction of Emotional Distress for a claim that involves only property damage. In this case, the Plaintiff owned a business in White House, Tennessee. The Defendant rear-ended a vehicle and left the roadway at a high rate of speed, causing his car to run into the building that contained the Plaintiff’s business. The vehicle struck a gas meter which resulted in a significant fire and caused a complete loss of the Plaintiff’s business. The Plaintiff was not actually at the property at the time of the loss, but he returned shortly thereafter and witnessed the fire at his business.


As a result of this accident, the Plaintiff filed suit asserting that the loss of Plaintiff’s business and the great fire that was caused by the accident, as well as Plaintiff’s observations, caused him to have severe mental and emotional injuries.  He was even diagnosed with Post Traumatic Stress Disorder and Anxiety from the incident. Plaintiff therefore claimed he was entitled to recover against the Defendant under the theory of negligent infliction of emotional distress for these personal injuries.


The Tennessee Court of Appeals noted that to recover damages under the theory of negligent infliction of emotional distress, a plaintiff must “prove each of the elements of general negligence; duty, breach of duty, injury or loss, causation and fact, and proximate, or legal, cause. A plaintiff must also prove that he or she has suffered a serious or severe emotional injury” (Lane at p. 3) (citing Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996). Interestingly, however, no case in Tennessee has explicitly held that negligent infliction of emotional distress is an appropriate claim for a plaintiff resulting from emotional injuries that solely arise out of property damage.


The Court reviewed Tennessee Supreme Court cases and found one case that commented on this issue, but did not have a holding on this issue directly. In that case, Whaley v. Perkins, 197 S.W.3d 665, 670 (Tenn. 2006), the Tennessee Supreme Court stated the followin...

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TAGS: Damages, Negligence, Torts Comments [0]

In Tennessee, Contractors Are Not Usually Liable for Their Subcontractor's Negligence

Posted on Apr 2 2017 4:43PM by Attorney, Jason A. Lee

A recent Tennessee Court of Appeals decision, Joe Patton Rogers v. Bradley Dean Hadju, No. W2016-00850-COA-R3-CV, 2017 WL 1077059 (Tenn.Ct.App. 2017) discussed whether a contractor can be held responsible for the actions of their subcontractor.  In this case, there were multiple contracts between several entities for a construction project where multiple contractors subcontracted out work.  Ultimately, the Plaintiff was involved in an automobile accident that caused serious injuries to the Plaintiff.  The question, therefore, was whether a contractor can be held responsible for the actions of its subcontractor (both were sued for the accident in question).


The general law in Tennessee is that “where one person has sustained an injury from the negligence of another, he must, in general, proceed against him by whose negligence the injury was occasioned.” Rogers at 3.  Further, “while an employer may be held liable for the negligence of its employee, however, they are generally not liable for the negligence of independent contractors.”  Rogers at 3 (citing Givens v. Mullikin, 75 S.W.3d 383, 384 (Tenn. 2012)).  The Court then discussed how people or entities are classified as either employees or independent contractors.  Generally, the relationship can be determined by examining the agreement between parties.  The Court went on to discuss this issue as follows:


In determining whether an individual is an employee or an independent contractor, Tennessee courts are guided by the following factors: (1) the right to control the conduct of the work, (2) the right of termination, (3) method of payment, (4) whether or not the worker furnishes his own helpers, (5) whether or not the worker furnishes his own tools, (6) self-scheduling of working hours, and (7) freedom to render services to other entities. Goodale v. Langenberg, 243 S.W.3d 575, 582-83 (Tenn. Ct. App. 2007). Those factors, however, are not absolute, and no single factor is conclusive.  While the “right to control” is the primary test, it is not exclusive, and the entire relationship must be examined.


Rogers at 3.  As a result, the essence of determining whether an entity is an “employee” or an “independent contractor” is the element of control.  The Court noted that the “mere fact that the contractor reserves the right to supervise the work to ensure that the end result conforms to the plans does not make this subcontractor an employee when the contractor doe...

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TAGS: Negligence, Defenses, Torts, Construction Law, Tennessee Premises Liability Comments [0]

Foreseeability Requirement is Essential for a Tennessee Negligence Cause of Action

Posted on Mar 5 2017 7:36PM by Attorney, Jason A. Lee

A recent Tennessee Court of Appeals decision considered the essential requirement of foreseeability for a negligence cause of action.  This case, Keane v. Campbell, III, No. M2016-00367-COA-R3-CV, 2017 WL 417220 (Tenn. Ct. App. 2017) was about a premises liability cause of action.  The facts of this case are interesting.  It involves a party hosted for high school students at the home of the Defendant.  At that party approximately 40 – 70 minors attended the party and were dancing and jumping on an elevated wooden deck attached to the Defendant’s house.  During this party, the deck suddenly collapsed and resulted in Plaintiffs’ injuries.  The Plaintiffs’ theory was basically there was a failure of the Defendant to adequately monitor and supervise the minors, failure to warn the minors of the danger on the deck, failure to take action to prevent the collapse of the deck and failure to observe what could have been observed exercising reasonable care regarding the flexing of the deck.  Essentially, the assertions in this case were that the Defendants knew or should have known of the potential issues with the deck that ultimately caused the injury to the plaintiff. 


At the end of the day, the decision of the trial court was based on the foreseeability requirement for a Tennessee negligence cause of action.  The trial court found the Plaintiff could not establish that the incident of the collapsing of the deck was foreseeable simply because there were individuals dancing and jumping on the deck.  In a Tennessee negligence cause of action, foreseeability is one of the required five elements to establish the cause of action.  “A plaintiff is required to prove that the injury was a reasonably foreseeable probability and that some action within the defendant's power more probably than not would have prevented the injury.  Foreseeability is thus linked with probability—the possibility of injury cannot be remote.  The fact that an injury might be conceivable is not sufficient to create a duty. If the injury which occurred could not have been reasonably foreseen, the duty of care does not arise, and even though the act of the defendant in fact caused the injury, there is no negligence and no liability.”  Keane at 3. 


The Court therefore reviewed the only testimony that was submitted by the Plaintiff on this issue. It was an affidavit of an individual who attended the party.  That individual asserted that he “had a premonition that something was going to happen because there was a ridiculous amount of people on the deck and it was going up and down as people were jumping/dancing.” Keane at 4. He further claimed in his affidavit, that he “imagined the deck falling because the deck continued going up and down as people were jumping/dancing and the deck looked overloaded and old, and [a]s a result of [his] premonition, [he] got off of the deck and went inside of the house, which is where [he] was at the time of the collapse.” Keane at 4.

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TAGS: Torts, Tennessee Premises Liability Comments [0]

Piercing the Corporate Veil in Tennessee – When Can a Judgment Against a Corporation be the Personal Responsibility of the Shareholders?

Posted on Feb 15 2017 4:41PM by Attorney, Jason A. Lee

The Tennessee Court of Appeals recently decided a case (F&M Marketing Services, Inc. v. Christenberry Trucking and Farm, Inc., E2016-00205-COA-R3-CV, 2017 WL 417223_(Tenn. Ct. App. 2017)) involving a request to pierce the corporate veil of a Defendant after the Plaintiff got a substantial judgment against that Defendant for breach of contract.  The total judgment in this case was $375,524.29.  After the initial judgment was entered, the Plaintiff learned that the Defendant had no assets to satisfy the judgment.  As a result, the Plaintiff petitioned the trial to hold the primary shareholder of the Defendant personally liable for the judgment against the Defendant corporation.  The Tennessee Court of Appeals did a good job discussing the circumstances when an individual shareholder can be found personally responsible for a judgment against a corporation in Tennessee. 


The Court noted that the most important case outlining when it is appropriate to pierce the corporate veil in Tennessee is the FDIC v. Allen, 584 F. Supp. 386 (E.D. Tenn. 1984) decision.  The Court noted that numerous Tennessee Court of Appeals and the Tennessee Supreme Court have nearly uniformly considered the “Allen factors” that were outlined in this case many years ago.  The factors to be considered when determining whether to allow a judgment to be against individual shareholders and simply disregarding the corporate veil include the following:


Factors to be considered in determining whether to disregard the corporate veil include not only whether the entity has been used to work a fraud or injustice in contravention of public policy, but also: (1) whether there was a failure to collect paid in capital; (2) whether the corporation was grossly undercapitalized; (3) the nonissuance of stock certificates; (4) the sole ownership of stock by one individual; (5) the use of the same office or business location; (6) the employment of the same employees or attorneys; (7) the use of the corporation as an instrumentality or business conduit for an individual or another corporation; (8) the diversion of corporate assets by or to a stockholder or other entity to the detriment of creditors, or the manipulation of assets and liabilities in another; (9) the use of the corporation as a subterfuge in illegal transactions; (10) the formation and use of the corporation to transfer to it the existing liability of another person or entity; and (11) the failure to maintain arms length relationships among related entities.


F&M Marketing at 3 (quoting Rogers v. Louisville Land Company, 367 S....

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TAGS: Post Judgment Motions, Torts, Breach of Contract, Corporation/LLC Law, Miscellaneous Comments [0]

New Tennessee Court of Appeals Decision Holds that Registered Agent is Not Required to be Served at Address Listed with Secretary of State

Posted on Dec 28 2016 4:44PM by Attorney, Jason A. Lee

An interesting case dealing with a civil procedure situation was recently decided by Tennessee Court of Appeals.  This case is Ace Design Group Inc. v. Greater Christ Temple Church Inc., No. M2016-00089-COA-R3-CV 2016 WL 7166408, (Tenn. Ct. App. 2016).  In this case, the Defendant had a Registered Agent listed with the Tennessee Secretary of State with a specific address.  Initially the Plaintiff attempted to serve the Defendant’s Registered Agent at the address listed with the Secretary of State, however, it was an incorrect address for the Registered Agent, therefore, the service of process was returned “unserved”.  However, subsequent to that, the Registered Agent was served at his business address after the attorney for the Plaintiff did some research to determine where the Registered Agent was actually located.  As a result, the Registered Agent actually received service of process of the lawsuit.  Despite this fact, the Defendant Church, did not respond to the Complaint or the Motion for Default Judgment.  As a result, Default Judgment was entered against the church with damages totaling approximately $132,000.00. 


This case was appealed to the Tennessee Court of Appeals and the Defendant argued that actual service on the Registered Agent was not effective because it was not served on the Registered Agent at the address listed with the Secretary of State.  However, it was undisputed that the Registered Agent was actually served personally.  This argument was quite confusing because it makes no sense.  The Tennessee Court of Appeals found this argument had no merit.  Specifically, the Court found that “in serving process, it is not the address or location where service is achieved that is paramount; rather, it is whether the proper party is served that establishes compliance with the process requirements.”  Ace Design at p. 5.  The Court further stated that “personal service of written notice within the jurisdiction is the classic form of notice always adequate in any type of proceeding.” citing Mullane v. Central Hanover Bank and Trust Company, 339 U.S. 306, 313 (1950). 


The Defendant also argued that once the service was returned “unserved” at the address listed with the Secretary of State, then service needed to be completed at the church’s physical address.  The Tennessee Court of Appeals also rejected this argument.  Specifically, it found the church’s status as a Tennessee corporation required it to have a Registered Agent in the state pursuant T.C.A. 48-15-101.  This statute provides as follows: 


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TAGS: Civil Procedure Comments [0]

Statistics Show Damages Awarded in Tennessee Personal Injury Cases

Posted on Nov 13 2016 7:07PM by Attorney, Jason A. Lee

The most recent Tennessee judiciary annual report provided many interesting statistics on personal injury cases in Tennessee.  The most recent report covered the 2014 – 2015 fiscal year (July 1, 2014 to June 30, 2015).  Incredibly, there were only 367 total personal injury or death cases that proceeded to trial in the 2014 – 2015 fiscal year.  Of those cases, only 116 of them resulted in damages.  The total monetary award for these 116 cases that resulted in damages was $46,901,449.00.  This constitutes an average award of $404,323.00 per case where damages were awarded.  However, like in most years, these statistics are very deceiving.  Specifically, this statistic was significantly warped by one single award in Shelby County totaling $30,000,000.00.  When this one award is removed, the total damages awarded in personal injury or death trials in Tennessee for the 2014 – 2015 fiscal year totals $16,901,449.00.  This results in average award of $146,969.12. 


Interestingly, out of the 116 cases where damages were awarded, only 14 cases resulted in awards of $100,000.00 to $1,000,000.00.  There were only 7 cases that were awarded over $1,000,000.00 in the State of Tennessee for 2014 – 2015.  This is actually a large number of million dollar verdicts when compared to recent prior years.  The remaining 95 cases were all awarded damages somewhere between $1 and $99,999.99.  Obviously, I am sure there are very significant cases that never go to trial and are instead are settled due to apparent risks to both parties.  However these statistics show how few large jury verdicts there are in Tennessee each year.  Further, like I have discussed before, cases simply do not go to trial like they used to do.  This is unfortunate because it inhibits the ability of young litigation attorneys to gain valuable trial experience.  Fewer and fewer attorneys are obtaining real jury trial experience.  This makes is even more important to make sure you hire attorneys with real jury trail experience whether you are on the defense or plaintiff side of the case.  Also, these numbers show, once again, how favorable things are for the defense in Tennessee as Tennessee has become a more and more conservative state from a legal and political perspective. 


Follow me on Twitter at @jasonalee for updates from the Tennessee Defense...

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TAGS: Tennessee Legal Statistics Comments [0]

Does Employer’s Admission of Vicarious Liability for Actions of Employee Insulate the Employer from Other Causes of Action?

Posted on Oct 22 2016 1:56PM by Attorney, Jason A. Lee

The Tennessee Court of Appeals recently dealt with an issue that has not been previously discussed by Tennessee Appellate courts in Melanie Jones, Individually and on behalf of Matthew H. V. Shavonna Rachelle Windham, et al., No. W2015-00973-COA-R10-CV, 2016 WL 943722 (Tenn. Ct. App. 2016).  The question deal with the situation where an employer and employee are both sued due to the actions of the employee in causing an automobile accident (while working for the employer).  The employer, in the Answer to Complaint, admitted they were vicariously liable for the actions of the employee.  The question, therefore, was whether the plaintiff could still proceed with other claims against the employer including negligent hiring, negligent retention and negligence per se for their own independent negligent actions when they had already admitted vicarious liability for the actual accident.    


For some reason, the plaintiff wanted to pursue various individual cause of actions directly against the employer in this case.  Perhaps they thought it would increase the damages because the employer took actions that were inappropriate.  Interestingly, many other state courts have decided this issue and they are basically evenly split on how to handle this situation.  Thus, the Tennessee Court of Appeals went into a detailed assessment of the various positives and negatives of both avenues.  The Court ultimately held that the “an employer’s admission of vicarious liability does not bar a plaintiff from proceeding against the employer on independent claims of negligence.” Jones at 5. 


The Court admitted that this holding does make it necessary for trial courts to potentially guard juries from being prejudice by evidence against the employer after vicarious liability is already admitted.  As a result, the Court discussed in detail the possibility of trying to avoid that prejudice by using jury instructions or ultimately by bifurcating the proceedings under Tennessee Rule of Civil Procedure 42.02.   This rule provides as follows: 


The court for convenience or to avoid prejudice may in jury trials order a separate trial of any one or more claims, cross-claims, counterclaims, or third-party claims, or issues on which a jury trial has been waived by all parties. For the same purposes the court may, in nonjury trials, order a separate trial of any one or more claims, cross-claims, counterclaims, third-party claims, or issues.

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TAGS: Torts, Employment Law, Civil Procedure Comments [0]

2016 Tennessee Statute Provides for Attorney’s Fees to Be Awarded to State When State Employee is Individually Sued Unsuccessfully Under § 1983

Posted on Oct 2 2016 6:07PM by Attorney, Jason A. Lee

Sometimes state government employees are sued on an individual basis for actions that they took as a government employee.  Often these cases are § 1983 claims asserting the state employee acted inappropriately under the “color of law.”  However, this new statute is not limited to claims under § 1983.  In response, the Tennessee legislature felt it was necessary to provide protection to the State when the individual governmental employee is successful in defending such a claim.  As a result, the 2016 Tennessee added a provision in the law that provides that attorney’s fees and costs should be awarded to the state or the state employee when the state employee is not found to be not responsible when they are sued in their individual.  In fact, the employee is not even required to be successful on the merits, but instead, even if the case is voluntarily dismissed greater than 45 days after an Answer is filed making specific assertions, then the employee is still awarded attorney’s fees and costs.   


Public Chapter No. 848, which was signed into law on April 19, 2016 by Governor Bill Haslam, has been amended and now provides as follows:


(a) Notwithstanding § 20-12-119(c)(5)(A), if a claim is filed with a Tennessee or federal court, the Tennessee claims commission, board of claims, or any other judicial body established by the state or by a governmental entity of the state, against an employee of the state or of a governmental entity of the state in the person's individual capacity, and the claim arises from actions or omissions of the employee acting in an official capacity or under color of law, and that employee prevails in the proceeding as provided in this section, then the court or other judicial body on motion shall award reasonable attorneys' fees and costs incurred by the employee in defending the claim filed against the employee.

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TAGS: Tennessee Tort Reform, GTLA, 2016 Tennessee Legislation, Attorney Fees Comments [0]

Tennessee Supreme Court Once Again Addresses Personal Responsibility/Guaranty for Commercial Leases

Posted on Sep 8 2016 3:45PM by Attorney, Jason A. Lee

The Tennessee Supreme Court has one again addressed a key issue that comes up often in commercial leases.  The question in this case, decided September 2, 2016, was whether an individual who signed the lease (in a peculiar way) was personally responsible for the terms of the commercial lease.  This case is MLG Enterprises, LLC v. Richard L. Johnson, 2016 WL 4582174 (Tenn. 2016).  In this case, the individual Defendant, Richard Johnson, signed a lease on behalf of the tenant as well as individually.  The key issue in this case was where Mr. Johnson signed the lease individually in such a way that made him personally obligated as a guarantor for the lease terms.  The Tennessee Supreme Court identified the key signature line as follows:


The third signature space, located on the right side of the Lease and below the second signature space, provides a signature line beneath which appears the typed text “Richard L. Johnson.” On this line is the handwritten signature “Richard L. Johnson” followed by the handwritten words “for Mobile Master Mfg. LLC.” To the left of this signature appears the typed text “EXECUTED BY Richard L. Johnson, THIS ___ DAY OF OCTOBER, 2007.”


As you can see, Mr. Johnson signed the lease individually but then added the words “for Mobile Master Mfg. LLC”.  The implication was that he was not signing on his own behalf but instead he was signing for the entity.  The Tennessee Supreme Court found that this modification of the signature was ineffective because it was contrary to the clear language in the lease.


The Court found that Mr. Johnson was liable under the lease because of the clear intent of the lease to hold him personally liable.  That is due to the fact that the preceding paragraph prior to the signatures contained the following personal guaranty language:



In consideration of Landlord entering into this Lease with Tenant, Richard L. Johnson hereby agrees that he shall be personally liable for all of Tenant's obligations under this Lease and executes this Lease for this purpose.


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TAGS: Corporation/LLC Law, Contracts Comments [0]

Most Recent Tennessee Judiciary Report (Fiscal Year 2014 – 2015) Shows Tennessee Case Filings Continue to Decline

Posted on Aug 22 2016 9:06AM by Attorney, Jason A. Lee

Every year the Tennessee Administrative Office of the Courts issues a report on the Tennessee judiciary.  This report shows many different useful statistics for case filings (and other important court system information) in Tennessee.  The most recent report for fiscal year 2014 – 2015 (covering July 1, 2014 to June 30, 2015) was recently released.  This report confirms the longstanding trends in the law in Tennessee.  There is now a longstanding trend downward in the case filings in both Circuit and Chancery courts since at least 2005.  This new report further confirms, once again, this trend for both courts. 


The statistics show a continued decrease in the filing of Tennessee Circuit Court cases.  The total number of case filings for Tennessee Circuit Courts from 2005 to 2015 are as follows:


            2005 – 2006                                                                  67,090

            2006 – 2007                                                                  64,837

            2007 – 2008                                                                  62,204

            2008 – 2009                                                      &nb...

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TAGS: Tennessee Legal Statistics Comments [0]
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Jason A. Lee is a Member of Burrow Lee, PLLC. He practices in all areas of defense litigation inside and outside of Tennessee.

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Tennessee Defense Litigation Blog
Jason A. Lee, Member of Burrow Lee, PLLC
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Phone: 615-540-1004
E-mail: jlee@burrowlee.com