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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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