Tennessee Premises Owners Are Not Responsible to Protect Patrons from Violence that Occurs Off Their Property

The Tennessee Court of Appeals decided a recent interesting case involving a shooting that occurred just outside of the property of a youth outreach ministry.  The Jerterrius Marshawn Akridge v. Fathom, Inc., No. 2014-00711-COA-R9-CV, 2015 WL 97946 (Tenn. 2015) decision dealt with a shooting that occurred close to, but clearly outside of the property of the defendant.  The plaintiffs alleged they were attending a public music event at Club Fathom.  Club Fathom provides outreach to at-risk youth, including gang members.  At the event the plaintiffs assert certain individuals wore gang colors and an altercation erupted inside the building.  The defendant’s security personnel forced all patrons to leave the building and the premises.  The plaintiffs were subsequently caught in a shooting which occurred off the premises. 

The plaintiffs claimed the defendant had a history of violence and numerous incidents of crime and public disorder on their property.  Further, the plaintiffs claim the defendant had a duty to the plaintiffs as invitees to protect them and to operate the club in a reasonably safe manner.  Plaintiffs largely relied upon the seminal case on this issue, McClung v. Delta Square Ltd. Partnership, 937 S.W.2d 891 (Tenn. 1996) (this case discusses the duty of a premises owner to protect their customers when there is knowledge of crimes occurring on and around their property)

The question in the Akridge case was whether the defendants owed any duty of care to the plaintiffs when they were not on the defendant’s property at the time of the shooting.  The court noted that generally there is no duty to control the conduct of a third party to prevent harm unless: 

(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or

(b) a special relation exists between the actor and the other which gives to the other a right to protection.  Newton v. Tinsley, 970 S.W.2d 490, 492 (Tenn.Ct.App.1997)

The court found that in Akridge there was no special relationship with a third party tort-feasor that would force a duty upon the defendants to control that party’s conduct.  As a result, the only basis for potential liability would be a special relationship between the defendants and the plaintiffs.  Tennessee case law has previously concluded that such a special relationship may exist between the possessor of a premises that is open to the public and the individuals they invite onto the premises.  (See McClung- previously discussed above) However, in the Akridge case, the plaintiffs had already left the defendant’s premises by the time of the actual shooting.  This is different from what occurred in McClung.  The question, therefore, was whether the duty to the plaintiffs still continued after the plaintiffs had exited the defendant’s premises.  

The Tennessee Court of Appeals found that “the only duty owed by these Defendants was to protect business patrons from harm, a duty which would exist while the patrons were on the business premises.  Since it is undisputed that Plaintiffs were no longer on the business premises at the time of the tortious act, the trial court erred in determining that Defendants owed them a duty of care.”  Akridge at 6.  The plaintiffs attempted to argue that because the defendants forced everybody off their property at the time of the initial altercation, that this actually caused the incident.  However, the court decided to provide a bright line rule that if the plaintiffs are no longer on a business owners premises, then there is no longer a duty to protect them from harm at that point.

This is an important Tennessee Court of Appeals decision.  This is the right decision.  Otherwise, where do you draw the line?  How far must someone be off your property for the duty to cease?  For how long?  Under what circumstances?  It would create a myriad of difficulties to apply any rule other than the rule identified in this case.  Obviously even under this rule, there can still be fact specific inquiries needed to determine whether there is any duty to plaintiffs that are invited onto a premises owner’s property.  However, ultimately, if those individuals leave the premises, then there is no longer any duty to provide for their safety absent some other special duty under Tennessee law.