2016 Tennessee Legislation Provides Immunity to Businesses and Premises Owners for Failure to Prohibit Weapons on Property

One interesting theory of potential liability against a premises owner is to sue the premises owner for civil liability regarding something that occurred on the property involving guns or other weapons.  The Tennessee legislature previously adopted T.C.A. § 39-17-1359 which provides that a person, business or other entity who controls or manages properties, has the authority to prohibit weapons on that property by making a specific posting.  The key language in that statute is as follows:

(a)(1) Except as provided in § 39-17-1313, an individual, corporation, business entity or local, state or federal government entity or agent thereof is authorized to prohibit the possession of weapons by any person who is at a meeting conducted by, or on property owned, operated, or managed or under the control of the individual, corporation, business entity or government entity.

(2) The prohibition in subdivision (a)(1) shall apply to any person who is authorized to carry a firearm by authority of § 39-17-1351.

The question that has come up since the adoption of this statute (T.C.A. § 39-17-1359), is whether premises owners can be held liable if they do not ban guns from their property using this posting procedure and there is an incident that involves injury to an individual due to the use of such weapons.  The Tennessee legislator addressed this issue in 2016 when it adopted Public Chapter No. 947, which took effect July 1, 2016.  This new statute provides immunity for people, businesses or entities that own property under the legal theory that they failed to prohibit weapons on their property and an injury or death resulted from those weapons.  In other words, under this new statute, the theory that a landowner had the power to ban weapons under T.C.A. § 39-17-1359, they failed to do so, and therefore they are liable for gun violence on their property – is not a legal theory that is viable in Tennessee.  This statute will be found in Title 39, Chapter 17, Part 13, but it has not yet been officially placed in the Tennessee Code (it should be very soon).  This new statute provides as follows:

(a) A person, business, or

Tennessee Legislature Extends Protections to Landowners for Shooting Activities on Their Land

The 2015 Tennessee Legislature passed a new law extending protections to landowners for certain shooting activities performed on their land.  Specifically, Public Chapter No. 53 was signed into law by Governor Bill Haslam on April 6, 2015 and it extended protections for certain activities including “sporting clays, shooting sports, and target shooting, including archery and shooting range activities”.  Specifically, T.C.A. § 70-7-102 provides the following protections for landowners in Tennessee:

(a) The landowner, lessee, occupant, or any person in control of land or premises owes no duty of care to keep such land or premises safe for entry or use by others for such recreational activities as hunting, fishing, trapping, camping, water sports, white water rafting, canoeing, hiking, sightseeing, animal riding, bird watching, dog training, boating, caving, fruit and vegetable picking for the participant's own use, nature and historical studies and research, rock climbing, skeet and trap shooting, sporting clays, shooting sports, and target shooting, including archery and shooting range activities, skiing, off-road vehicle riding, and cutting or removing wood for the participant's own use, nor shall such landowner be required to give any warning of hazardous conditions, uses of, structures, or activities on such land or premises to any person entering on such land or premises for such purposes, except as provided in § 70-7-104.

(b) The landowner, lessee, occupant, or any person in control of land or premises owes no duty of care to keep such land or premises safe for entry or use by others for recreational noncommercial aircraft operations or recreational noncommercial ultra light vehicle operations on private airstrips except as to known hazards or defects and except as provided in § 70-7-104.

As you can see, this statute already provided significant protections to landowners and now those protections are expanded further (to sporting clays, shooting sports, and target shooting, including archery and shooting range activities).  Additionally, T.C.A. § 70-7-103 was also amended to provide that if a landowner gives permission to another to perform these activities on their land, they are not extending any assurance that the premises is safe for such purpose.  The entire T.C.A. § 70-7-103 provides the following: 

Any landowner, lessee, occupant, or any person in control of the land or premises or such person's agent who gives permission to another person to hunt, fish, trap, camp, engage in water sports, participate in white water rafting or canoeing, hike, sightsee, ride animals, bird watch, train...

New Tennessee Law Provides Protection from Personal Liability for Certain Volunteer Drivers

The Tennessee legislature passed a new law that provides protections for volunteer drivers in Tennessee.  Specifically, Public Chapter No. 152 was signed into law by Governor Bill Haslam on April 16, 2015.  This law is called the “Protection of Volunteer – Insured Drivers of the Elderly (PROVIDE) Act.”  This law can certainly have an impact on certain automobile accident cases.  Specifically, this law provides that volunteer drivers who provide transportation for senior citizens through a charitable organization or human service agency cannot be found individually liable for any civil damages beyond the insurance policy limits collectible for the accident. 

This new law protects the at fault driver as long as their fault consists of simple negligence.  However, it is important to note that this statute does not provide this limited immunity when the conduct of the voluntary driver constitutes gross negligence, or willful and wanton misconduct.  Additionally, the human services agency or charitable organization must maintain liability insurance coverage at least equal to the minimum limits set forth in T.C.A. § 29-20-403 of the Tennessee Governmental Tort Liability Act (which provides for minimum policy limits of $300,000.00/$700,000.00).

This new statute takes effect for actions that arise on or after July 1, 2015.  The entire statute provides as follows:

(a) As used in this section:

(1) "Charitable organization" means any charitable unit of a religious or civic group exempt from taxation under 26 U.S.C. § 501, including those supported wholly or partially by private donations;

(2) "Human service agency" means any human service unit, clinic, senior citizens program, congregate meal center, or day care center for the elderly, whether supported wholly or partially by public funds;

(3) "Volunteer" means an individual providing volunteer transportation who may receive reimbursement for actual expenses or an allowance to defray expenses of operating the vehicle used to provide transportation services, but does not receive compensation for the person's time; and

(4) "Volunteer tr...

Volunteer Doctors who Provide Free Services Under the Volunteer Healthcare Services Act are Not Liable for Medical Malpractice Negligence in Tennessee

The Volunteer Healthcare Services Act found in T.C.A. § 63-6-701 through 709 provides a certain level of immunity for volunteer physicians who provide healthcare in compliance with this statute.  Specifically, healthcare providers including physicians, surgeons, dentists, nurses, optometrists or “other practitioners of the healthcare discipline” who perform work for a “sponsoring organization” on a volunteer basis can be protected by the immunity provisions in this statute.

2014 Tennessee Statute Modification – Free Clinics Now Included:

In the 2014 Tennessee legislative session, this Act was amended in Public Chapter 575 in order to expand the amount of healthcare providers who receive protection under the act.  The bill summary provides a good explanation of this expansion as follows:

Under present law, no individual who is licensed, certified, or authorized by any board of the healing arts, who engages in the voluntary provision of health care services to any patient of a sponsoring organization is liable for any civil damages for any act or omission resulting from services rendered, unless the act or omission is a result of the individual's gross negligence or willful misconduct.

 
This bill extends the above immunity to services delivered at a free clinic.

This bill defines a "free clinic" as a not for profit, out-patient, non-hospital facility in which a health care provider engages in the voluntary provision of health care services to patients without charge to the recipient or a third party. "Voluntary provisions of health care services" is defined as providing health care services either without charge to the recipient or to a third party, or the recipient is charged on a sliding scale according to income.

Now, this protection extends to “free clinics” under the Act.  Prior to this legislative change, “free clinics” were not included in the protections afforded under these statutes.  “Free clinics” under the amended statute are defined in T.C.A. § 63-6-703 as:

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...

Tennessee Removes Sovereign Immunity for Claims Against Tennessee Governmental Entities Under the Uniformed Services Employment and Reemployment Rights Act

Analysis:  I am working on several blog posts to try to update everyone on important Tennessee Legislative changes that came out of the 2014 Tennessee Legislative session.  These posts will touch on various topics and will be published over the next few months.  One change from the recent session is the removal of sovereign immunity for Tennessee governmental entities for claims against those entities under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”).  The Uniformed Services Employment and Reemployment Rights Act is found in 38 USC §§ 4301-4334.  Basically, this federal legislation strengthens military veteran’s reemployment rights when they are required to serve in a war.  This has always been an important principle to protect in America and has been protected by numerous statutes over the years.  Basically, soldiers who fight in wars for this country should not lose their jobs because they had to fight in a war.

Under Tennessee law, however, governmental entities are provided with sovereign immunity under many circumstances.  Specifically, T.C.A. § 29-20-201(a) is one of the statutes (there are others) that addresses sovereign immunity and provides as follows:

(a) Except as may be otherwise provided in this chapter, all governmental entities shall be immune from suit for any injury which may result from the activities of such governmental entities wherein such governmental entities are engaged in the exercise and discharge of any of their functions, governmental or proprietary.

(b)(1) The general assembly finds and declares that the services of governmental entity boards, commissions, authorities and other governing agencies are critical to the efficient conduct and management of the public affairs of the citizens of this state. Complete and absolute immunity is req...

Tennessee Workers’ Compensation – The exclusive remedy rule and the intentional tort exception.

Analysis:  The recent Tennessee Court of Appeals decision of Celia Moody Rodgers v. GCA Services Group, Inc. and Weakley County Tennessee, 2013 WL 543828 (Tenn. Ct. App. February 13, 2013) provided a good discussion about the exclusive remedy rule found in the Tennessee Workers Compensation Act at T.C.A. § 50-6-108(a).  Simply put, this rule provides that an employee can only sue his or her employer under Tennessee Workers Compensation Law for injuries sustained while working and not in a tort suit.  In this case, the plaintiffs asserted the employee died as a result of pneumonia she had because of her exposure to mold in her job with her employer.  The defendants filed motions to dismiss under the exclusive remedy rule asserting the employees only remedy was under the Tennessee Workers’ Compensation Act, not a suit in tort.  The trial court dismissed the case due to the exclusive remedy rule.

On appeal, the Tennessee Court of Appeals noted that Tennessee Workers Compensation Law “provides the exclusive remedy for an employee who is injured during the course and scope of his employment, meaning the employee is precluded from seeking tort damages for the injury.” Rodgers at 4 (quoting, Valencia v. Freeland and Lemm Constr. Co., 108 S.W.3d 239, 242 (Tenn. 2003)).  T.C.A. § 50-6-108(a) provides as follows:

The rights and remedies granted to an employee subject to this chapter, on account of personal injury or death by accident ... shall exclude all other rights and remedies of the employee, the employee's personal representative, dependents or next of kin, at common law or otherwise, on account of the injury or death.

Corporation and LLC law - Piercing the corporate veil under Tennessee Law.

Analysis:  The recent Tennessee Court of Appeals decision of Robert Thomas Edmunds v. Delta Partners, LLC, No. M2012-00047-COA-R3-CV, 2012 WL 6604580 (Tenn. Ct. App. December 18, 2012) discussed the concept of piercing the corporate veil under Tennessee law.  This case, in part, dealt with what is required to be established under Tennessee law in order to pierce the veil of a corporation.  In short, the doctrine of piercing the corporate veil allows, in certain circumstances, individual members or executives of a corporation (including an LLC - Limited Liability Company) to be personally responsible for the liabilities of the corporation.  This cased involved a dispute between an employer and a former employee over back pay (see detailed prior post on this same case on what constitutes an employment contract under Tennessee law). Edmunds at 1 - 3.  The employee was ultimately awarded damages by the trial court which were affirmed by the Appellate Court for back pay pursuant to an employment contract. Edmunds at 4 - 5. The plaintiff tried to hold the owner of the company personally responsible under the doctrine of “piercing the corporate veil”. 

The Tennessee Court of Appeals in this case discussed that a corporation is presumed to be a distinct legal entity that is separate from its members, shareholders, officers, as follows:

There is a presumption that a corporation is a distinct legal entity, wholly separate and apart from its shareholders, officers, directors, or affiliated corporations. In an appropriate case and in furtherance of the ends of justice, the separate identity of a corporation may be discarded and the individual or individuals owning all its stock and assets will be treated as identical to the corporation.  Discarding the fiction of the corporate entity, or piercing the corporate veil, is appropriate when the corporation is liable for a debt but is without funds to pay the debt, and the lack of funds is due to some misconduct on the part of the officers and directors.

Immunity - Can a person bring a cause of action in tort against their spouse under Tennessee law?

Brief Summary:  The spousal immunity doctrine preventing causes of action in tort against a spouse no longer applies in Tennessee.  It was abolished by the Tennessee Supreme Court in 1983 in Davis v. Davis, 657 S.W.2d 753 (Tenn. 1983).

Analysis:  I received a question about whether Tennessee law allows a person to bring a tort cause of action against their spouse.  I thought this was a good topic for a blog post.  Historically, Tennessee applied the doctrine of "interspousal immunity" as a bar for an individual's cause of action against their spouse.  The Tennessee Supreme Court abolished this rule in 1983 with the decision of Davis v. Davis, 657 S.W.2d 753 (Tenn. 1983). 

The Tennessee Supreme Court in Davis discussed, in detail, the historical reasons and arguments for the "interspousal immunity" doctrine in Tennessee and in other states. Davis at 754 – 759.  (This is a very interesting discussion about the reasons and historical underpinnings for this doctrine if you are interested in this type of thing).  In 1983, when this decision was issued, states were turning away from this doctrine.

The Tennessee Supreme Court found that it was appropriate to abolish the "interspousal immunity" doctrine because the original reasons for the doctrine had been largely abandoned.  The court stated that "no plausible reasons for retaining it, and cognizant of the high cost exacted by the rule because of the absolute bar it places in the path of potentially meritorious claims, we hold that interspousal tort immunity is totally abolished in this State."  Davis at 759.

Immunity - Can a child sue their parent in a tort suit in Tennessee?

Brief Summary:  The parental immunity doctrine does apply in Tennessee but was limited by the Tennessee Supreme Court in 1994.  The doctrine is limited to “conduct that constitutes the exercise of parental authority, the performance of parental supervision, and the provision of parental care and custody.”

Analysis:  I recently received a question about whether a child can sue their parent for negligence in tort.  Historically, the doctrine of “parental immunity” barred such a cause of action.  This doctrine was first adopted by Tennessee Supreme Court in McKelvey v. McKelvey, 77 S.W. 664 (Tenn. 1903).  It was also reaffirmed as recently as 1985 by the Tennessee Supreme Court in Barranco v. Jackson, 690 S.W.2d 221 (Tenn. 1985).  However, this doctrine was modified by the Tennessee Supreme Court in 1994 in the case of Broadwell by Broadwell v. Holmes, 871 S.W.2d 471 (Tenn. 1994).

In Broadwell, the Tennessee Supreme Court noted the trend at that time across America was to modify and limit the absolute parental immunity doctrine.  As a result, the Court analyzed various modifications other states had enacted to the parental immunity doctrine (this is an interesting analysis if you are interested in this topic but it will not be restated here). Broadwell at 473 – 475.  The Court also noted the reasons and justification for this doctrine as follow: 

The parental right to govern the rearing of a child has been afforded protection under both the federal and state constitutions. This Court has stated, “Tennessee's historically strong protection of parental rights and the reasoning of federal constitutional cases convince us that parental rights constitute a fundamental liberty interest under Article I, Section 8 of the Tennessee Constitution.”  The integrity of the family unit has found protection against arbitrary state interference in the Due Process Clause of the Fourteenth Amendment.