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

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...

Tennessee Changes Statute of Limitations Law for Individuals Who Are Incapacitated or Incompetent.

Tennessee law has long provided that individuals who are adjudicated incompetent at the time the cause of action accrued, may commence the action after their legal rights are restored within the normal time period for the statute of limitations for that cause of action.  The statute did not provide for the statute of limitations time period to run if they never gained competency.  As a result, essentially, an individual who was incompetent who was permanently incompetent, would not have any statute of limitations for any cause of action until the time they die.

In 2016, the Tennessee legislator fixed this problem by amending the applicable statute, T.C.A. § 28-1-106 in Public Chapter 932.  They added subsection (c)(2) of this statute now provides that any individual who has a court-ordered fiduciary (such as a guardian or conservator) or someone who possesses the legal right to bring suit on behalf of a person who lacks capacity, must commence the action on behalf of that person within the applicable statute of limitations.  The statute provides that the fiduciary may not rely upon any tolling of the statute of limitations unless the individual can establish by “clear and convincing evidence that the individual did not and could not reasonably have known of the accrued cause of action.”

The new statute (T.C.A. § 28-1-106) now provides the following:

(a) If the person entitled to commence an action is, at the time the cause of action accrued, either under eighteen (18) years of age, or adjudicated incompetent, such person, or such person's representatives and privies, as the case may be, may commence the action, after legal rights are restored, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from restoration of legal rights.

(b) Persons over the age of eighteen (18) years of age are presumed competent.

(c)(1) If the person entitled to commence an action, at the time the cause of action accrued, lacks capacity, such person or such person's representatives and privies, as the case may be, may commence the action, after removal of such incapacity, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from removal of such incapacity, except as provided for in subdivision (c)(2).

(2) Any individual with court-ordered fiduciary responsibility towards a person who lacks capacity, or any individual who possesses the legal right to bring suit on behalf of a person who lacks c...

Lawsuit filed in Tennessee General Sessions Court for Property Damage Cannot be Amended to Add Personal Injury Damages After Statute of Limitations Has Run

A recent case dealt with an attempted amendment to add personal injury damages after the initial suit only requested property damages.  The case was State Farm Mutual Automobile Insurance Company v. Robert Blondin, No. M2014-01756-COA-R3-CV, 2016 WL 1019609 (Tenn. Ct. App. 2016).  This case was about a July 7, 2009 automobile accident that occurred where an individual sustained personal injury and property damages.  State Farm Insurance filed a Civil Warrant on May 17, 2010 to recover amounts paid to their own insured under the uninsured motorist provision of their policy.  State Farm sued the allegedly at fault driver for property damage only as outlined in their initial Civil Warrant.  On July 15, 2010, after the 1 year statute of limitations for personal injury, State Farm filed a motion to amend the Civil Warrant to assert personal injury damages as well.  The General Sessions Court denied the motion due to the fact the statute of limitations had expired.  State Farm then appealed to the Circuit Court where this request was also denied and then the case was set for trial.  State Farm next voluntarily dismissed the case without prejudice prior to trial. 

After the dismissal without prejudice, State Farm refiled the action in General Sessions Court on January 31, 2012.  This time, State Farm’s Civil Warrant was for personal injury and property damages.  Ultimately, the Circuit Court, on appeal from General Sessions Court, went forward with the trial and allowed the case to be tried seeking both personal injury and property damages.  The Court awarded personal injury and property damages at the trial.  This case was then appealed to the Tennessee Court of Appeals over the statute of limitations issue. 

The Tennessee Court of Appeals reversed the decision of the trial Circuit Court.  The Court found that “the statute of limitations operated to deprive the General Sessions Court of subject matter jurisdiction to hear the claim for personal injuries”.  State Farm at p. 3.  Further, the appeals and voluntary dismissal by State Farm did not operate to revive or extend the statute of limitations because the statute of limitations was already extinguished. State Farm at p. 3.  The Court also discussed State Farm’s argument that the saving statute under T.C.A. § 28-1-105 somehow permitted State Farm to re-file the previous action and rely upon the prior filing of the lawsuit to extend statute of limitation.  The Court noted that the saving statute did permit State Farm to re-file the cause of action but it did not resurrect the previously barred cause of...

Tennessee Supreme Court Modifies Spoliation of Evidence Doctrine By Removing Intentional Misconduct Requirement

Tennessee has long had a doctrine of spoliation of evidence which allows the trial court to draw negative inferences or even provide dismissal against a party who destroys evidence.  Historically, Tennessee courts have required the presence of actual intentional misconduct to invoke the doctrine of spoliation of evidence particularly when providing the remedy of a negative inference or dismissal.  The Tennessee Supreme Court in Lea Ann Tatham v. Bridgestone Americas Holding, Inc., No. W2013-02604-SC-R11-CV, 2015 WL 6688035 (Tenn. 2015) dealt with an apparent conflict between the case law and Rule 34A.02 of the Tennessee Rules of Civil Procedure that was adopted on July 1, 2006.  The full text of Rule 34A.02 provides as follows:

Rule 37 sanctions may be imposed upon a party or an agent of a party who discards, destroys, mutilates, alters, or conceals evidence.

The question before the Tennessee Supreme Court in Lea Ann Tatham was whether Tennessee Courts should continue to require an intentional misconduct prerequisite for a trial court to impose sanctions for spoliation of evidence.  The Tennessee Supreme Court decided this issue and expressed the desire to provide a uniform standard on this issue.  The Court found that “intentional misconduct is not a prerequisite for a trial court to impose sanctions for the spoliation of evidence, including that of a negative inference.”  Id. at 8.  The Court adopted a specific analysis required by Tennessee trial courts to determine whether sanctions are appropriate in a spoliation of evidence situation.  The new test is a “totality of the circumstances” test, however, intentional misconduct is clearly no longer an absolute perquisite.  Intentional misconduct is simply one of the factors to be considered by the trial court. 

The Tennessee Supreme Court detailed certain factors that are relevant to a trial court’s consideration of whether sanctions are appropriate in the context of spoliation for evidence.  These include the following factors:

(1) the culpability of the spoliating party in causing...

Tennessee Supreme Court Clarifies Which Cases Are Subject to Tennessee Health Care Liability Act Requirements

The Tennessee Supreme Court recently handed down a very important medical malpractice decision in Adam Ellithorpe v. Janet Weismark, 2015 WL 5853873 (Tenn. 2015).  In this new decision, the Tennessee Supreme Court considered whether its prior opinion of Estate of French v. Stratford House, 333 S.W.3d 546 (Tenn. 2011) was overruled by legislation found in the Tennessee Civil Justice Act in 2011.  In the Estate of French decision, the Tennessee Supreme Court previously ruled that claims could be characterized as ordinary negligence as opposed to medical malpractice when the conduct alleged is not substantially related to the rendition of medical treatment by a medical professional.  Following that decision, the Tennessee Legislature passed the Tennessee Civil Justice Act of 2011 which amended the definition of a “healthcare liability action” to the following:

(1) “Health care liability action” means any civil action, including claims against the state or a political subdivision thereof, alleging that a health care provider or providers have caused an injury related to the provision of, or failure to provide, health care services to a person, regardless of the theory of liability on which the action is based;

T.C.A. § 29-26-101(a)(1). 

As a result, the question in the Ellithorpe case was whether the new definition of a “Health care liability action” overruled the Estate of French decision when determining if a case came within the Health Care Liability Act.  In Ellithorpe the Tennessee Supreme Court found that the Tennessee legislator overruled the Estate of French decision.  The Court held that “section 29-26-101 establishes a clear legislative intent that all civil actions alleging that a covered health care provider or providers have caused an injury related to the provision of, or failure to provide healthcare services be subject to the pre-suit notice and certificate of good faith requirements, regardless of any other claims, cause of action or theories of liability alleged in the complaint.”  Ellithorpe at ­­­7.

As a result, it is now very clear in Tennessee, based on the current status of the law, that if a cause of action has any relationship to a health care liabili...

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)

New Tennessee Statute Provides Immunity for Forcible Entry Into A Motor Vehicle to Remove Minor in Imminent Danger

Analysis:  The Tennessee Legislature dealt with an interesting issue in the 2014 legislative session involving minor’s stuck in vehicles.  The legislature passed Public Chapter No. 788 and it took effect on July 1, 2014.  Apparently, there was some need to pass this statute although this statute really addresses a very rare circumstance.  It is of note, however, that this particular change in Tennessee law has received quite a bit of attention from the media even though there are other changes in the law that are much more substantial and significant but they receive no media attention. 

In summary this new statute basically provides immunity from civil liability for any damages resulting from forcible entry into a vehicle to remove a minor from the vehicle.  The person who removes the minor must have a good faith belief that forcible entry is necessary because the minor is in imminent danger of suffering harm.  There are also other requirements that are outlined in the statute and must be followed for this immunity to apply.  The new statute is found in T.C.A. § 29-34-209 and provides as follows:

(a) A person whose conduct conforms to the requirements of subsection (b) shall be immune from civil liability for any damage resulting from the forcible entry of a motor vehicle for the purpose of removing a minor from the vehicle.
(b) Subsection (a) applies if the person:
 (1) Determines the vehicle is locked or there is otherwise no reasonable method for the minor to exit the vehicle;
 (2) Has a good faith belief that forcible entry into the vehicle is necessary because the minor is in imminent danger of suffering harm if not immediately removed from  the vehicle and, based upon the circumstances known to the person at the time, the belief is a reasonable one;
 (3) Has contacted either the local law enforcement agency, the fire department or the 911 operator prior to forcibly entering the vehicle;
 (4) Places a notice on the vehicle's windshield with the person's contact information, the reason the entry was made, the location of the minor and that the  authorities have been notified;
 (5) Remains with the minor in a safe location, out of the elements but reasonably close to the vehicle until law enforcement, fire or other emergency responder  arrives; and
 (6) Used no more force to enter the vehicle and remove the child from the vehicle than is necessary under the circumstances.
(c) Nothing in this section shall affect the person's civil liability if the person attempts to render aid to the minor in addition to what is authorized by this section.

Obviously, it is likely a rare circumstance where this will occur (I am referring to the actual need for immunity to apply to protect someone from a lawsuit – I am aware that minors are sometimes left in vehicl...

New Tennessee Law Clarifies that Red Light Violation Does Not Occur When Vehicle’s Front Tires Have Already Entered Intersection When Light Turns Red

Analysis:  In the 2014 Tennessee Legislative session the Tennessee Legislature decided to clarify exactly what constitutes a red light violation in Tennessee.  The legislature amended T.C.A. § 55-8-110 which is the statute that discusses what traffic control signals mean for an intersection.  It defines and explains the meaning of the “green”, “yellow”, and “red” notifications on traffic signal devices.  The Tennessee Legislature passed Public Chapter No. 989 that added a new subsection (e) to T.C.A. § 55-8-110 as follows:

(e) It is not a violation of subdivision (a)(3), unless the front tires of a vehicle cross the stop line after the signal is red.

Subsection (a)(3) is the section that discusses the responsibilities of a driver when faced with a red light in Tennessee.  As a result of this change, it is not a red light violation unless the front tires of the vehicle cross the stop line after the signal is already red.  As a result, if the front tires are already beyond the traffic intersection line at the point when the light turns red, then it is not a red light violation under the newly amended T.C.A. § 55-8-110.  This law takes effect on July 1, 2014.

Obviously, this change in the law will come into play in automobile accident litigation across the state of Tennessee.  This new statute more clearly defines what it means to violate a red light and provides a definitive time period when a red light violation occurs (when the vehicle’s front tires cross the intersection line when the light is already red).  I am sure this statute will be heavily involved in litigated car accident cases across the State of Tennessee.  However, I think it is a beneficial clarification in the law to make a bright line test for when a red light violation occurs.  There is still plenty of room for disagreement as to whether the fr...

Tennessee Adds Five Year Statute of Repose for Attorney and Accountant Malpractice Claims

Analysis:  The Tennessee legislature recently passed a law that now provides a five year statute of repose for any malpractice claims against accountants or attorneys.  The Tennessee Legislature in the 2014 Tennessee Legislative Session passed Public Chapter No. 618 making this change to existing Tennessee law.  This statute takes effect July 1, 2014 and applies to all acts or omissions of malpractice by accountants or attorneys that occur on or after July 1, 2014. 

T.C.A. § 28-3-104 is modified to add a new subsection (c).  The new subsection in the statute provides as follows:

(c)(1) Actions and suits against licensed public accountants, certified public accountants, or attorneys for malpractice shall be commenced within one (1) year after the cause of action accrued, whether the action or suit is grounded or based in contract or tort.

(2) In no event shall any action or suit against a licensed public accountant, certified public accountant or attorney be brought more than five (5) years after the date on which the act or omission occurred, except where there is fraudulent concealment on the part of the defendant, in which case the action or suit shall be commenced within one (1) year after discovery that the cause of action exists.

As you can see, there is still a one year statute of limitations for suits against accountants and attorneys for malpractice from the date the cause of action accrued (the discovery rule applies in Tennessee to these causes of action so that can extend the statute of limitations well beyond 1 year from the actual act or omission).  However, the new five year statute of repose is now found in subsection (c)(2) which basically provides that once five years passes from the date of the act or omission which constituted malpractice, no claim can be brought against the accountant or attorney. 

Is One-Sided Contract Requiring Arbitration by One Party, but Not the Other, Enforceable in Tennessee?

Analysis:  A recent Tennessee Court of Appeals decision discussed the viability of a contract that had a one-sided arbitration provision.  The Tennessee Court of Appeals decision of Richard A. Berent v. CMH Homes, Inc., 2014 WL 813874 (Tenn. Ct. App. 2014) dealt with an arbitration agreement that required the purchaser of a manufactured mobile home to submit virtually all of the buyer’s potential claims to arbitration.  On the other hand, the same contract provided certain exceptions to the “mandatory” arbitration that exclusively benefited the mobile home manufacturer.  The effective result was that the purchaser of the mobile home had to submit virtually all of his claims to arbitration whereas the seller of the manufactured mobile home could pursue judicial relief for many claims.

As a result, the question before the Court was whether this arbitration requirement was unconscionable and therefore unenforceable under Tennessee law.  Previously in Taylor v. Butler, 142 S.W.3d 277 (Tenn. 2004) the Tennessee Supreme Court held that an arbitration agreement was unconscionable when it reserves the “right to a judicial forum for the defendants while requiring the plaintiff to submit all claims to arbitration.”  Taylor at 280.  In the Berent case the Tennessee Court of Appeals applied the Taylor reasoning and found that this arbitration agreement was unconscionable.  As a result, this Tennessee Court of Appeals decision reaffirmed the applicability of the Taylor decision finding that it is improper in Tennessee for any arbitration agreement to selectively decide that one party has access to a judicial remedy while the other party only has access to an arbitration remedy. 

Interestingly, the defendants in this case attacked the viability of the Supreme Court’s holding in Taylor from 2004.  The defendants asserted in this case that Taylor is no longer in the legal majority across the country and that this decision should be overruled (in fact they assert this holding is only accepted in a “small minority” of jurisdictions).  Obviously, the Tennessee Court of Appeals declined to overrule a Tennessee Supreme Court decision and specifically stated that such an issue must be directed to...