Tennessee Supreme Court Finds General Contractor Not Responsible for Fire Under Res Ipsa Loquitur Theory Without Exclusive Control of Area

The Tennessee Supreme Court recently issued an interesting opinion in a case involving a fire which caused a loss to a partially completed house. In this case, Ewin B. Jenkins v. Big City Remodeling, et al, No. E2014-01612-SC-R11-CV, 515 S.W.3d 843 (Tenn. 2017), the Court dealt with a situation where the Plaintiff’s hired a general contractor to construct a house. The general contractor subcontracted the hardwood flooring work to another contractor, which in turn subcontracted the job to another subcontractor. On October 31, 2012, the partially completed house and everything in the house were destroyed by a fire. The legal theory used by the plaintiffs against the general contractor was the theory of res ipsa loquituur to try to establish an inference of negligence on the general contractor.

The Tennessee Supreme Court noted that due to the fact the Plaintiffs lacked direct proof of the general contractor’s negligence, they relied upon the evidentiary principle of res ipsa loquitor to establish an inference of negligence. The phrase “res ipsa loquitur” is a Latin phrase meaning “the thing speaks for itself”. The classic case where the res ipsa loquitur doctrine was first referenced is a 19^th Century English case, Byrne v. Boadle, 159 Eng. Rep. 299 (1863). In that case, a barrel of flour rolled out of a window of a warehouse and fell on a passing pedestrian. The pedestrian could not point to any specific negligent actions on behalf of the warehouse owner that actually caused the barrel of flour to hit the pedestrian.  However, the plaintiff successfully argued that this was the kind of event that would not happen without the negligence of the warehouse owner. As a result, the plaintiff in that case was successful under this theory.

In the Jenkins case at issue, the Tennessee Supreme Court analyzed the res ipsa loquitur doctrine in detail. In order to establish res ipsa loquitur in Tennessee, a plaintiff must show that “(a) the event that caused the injury is of a kind that ordinarily does not occur in the absence of negligence; (b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and (c) the negligence is within the scope of the defendant's duty to the plaintiff.” Jenkins at 849. The Tennessee Supreme Court noted that res ipsa loquitur has been applied in fire loss cases in Tennessee and in other jurisdictions when the exact cause of the fire is not known. However, in those cases, the defendant had “exclusive control over the premises or the instrumentality that cause the fire.” Jenkins at 849. That is the key issue in the Jenkins case.

In the Jenkins case, the Court found the Plaintiff simply did not...

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

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...

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...

Premises Liability – Summary Judgment Granted in New Tennessee “Tripping Over Curb” Case

Another good Tennessee Court of Appeals premises liability decision was recently published.  The case is Elizabeth F. Holland v. K-VA-T Food Stores, Inc., No. E2013-02798-COA-R3-CV, 2015 WL 151373 (Tenn. Ct. App. 2015).  In this case the plaintiff visited a Food City store in Sevier County Tennessee.  The property was divided by a continuous curb which was unmarked.  The court noted that the curb was there to prevent cars parked at Food City from traveling into the drive-thru area of the adjacent bank.  The plaintiff’s husband parked perpendicular to the curb.  After returning from shopping the plaintiff loaded her car with groceries.  She then stepped backwards, tripped on the curb and fell to the ground, sustaining injuries.

The plaintiff filed a negligence cause of action against Food City and other defendants and sought $350,000.00.  The trial court granted summary judgment and found the defendant had no duty to warn the plaintiff of the curb and that if the case was presented to a jury, the jury could not reasonably conclude that the plaintiff was less than 50% at fault for her injuries.  The case was then appealed.

On appeal, the plaintiff tried to argue that the summary judgment was error because the defendant never established that she failed to look where she was walking.  The court noted, however, that the plaintiff admitted she was walking backwards, that the curb was visible and that she would have noticed it had she been looking for it or if she paid attention to it.  The plaintiff did not admit that she failed to look behind her while walking – but this was not enough. 

The court stated that the curb was not a “random, superfluous curb in the way of travel between grocery patrons and the trip to and from the establishment. The curb operated as a visible and physical barrier between the Food City parking lot and the Bank, namely the drive-through area of the Bank.” Holland at 3.  The court then affirmed summary judgment and found that “defendant did not have a duty to warn plaintiff of the curb and because plaintiff’s mode of travel, namely walking backward, was the cause of her injury.” 

As a result, this case combined with other Tennessee premises liability cases, make it clear that it is very difficult to win a case involving a plaintiff who trips over a curb. 

In Tennessee if an Individual Passes Out While Driving a Vehicle, are they Responsible if they Cause an Accident?

Analysis:  The Tennessee Court of Appeals recently dealt with the question of the responsibility of an individual who becomes unconscious, while driving, causing an automobile accident.  The Tennessee Court of Appeals in George Smith v. General Tire and Emily Alexander, No. M2012-01446-COA-R3-CV, 2013 WL 2395047 (Tenn. Ct. App. 2013) involved a case where a man was injured in a head-on collision.  The unconscious defendant in this case testified she did not remember anything on the day of the accident from the point she came to a red light on Gallatin Road until she woke up in an ambulance on the way to the hospital.  She had a long history of diabetes but she had never experienced a loss of consciousness prior to the accident in question.  Additionally, she had never been advised by her physician that she should not drive a vehicle.  Her treating physician testified her blood sugar level must have dropped too quickly for her to realize before she became unconscious. 

There was medical testimony submitted by both sides pertaining to the possibility of her becoming unconscious based on the medication and diagnosis of the defendant.  The Smith court found that the Tennessee Supreme Court has adopted a rule that embodies how to deal with evaluating the situation where a driver suddenly loses consciousness.  This rule is as follows:

A sudden loss of consciousness or physical capacity experienced while driving which is not reasonably foreseeable is a defense to a negligence action. To constitute a defense, defendant must establish that the sudden loss of consciousness or physical capacity to control the vehicle was not reasonably foreseeable to a prudent person. As a result, the defense is not avail...

Negligence - Can a gas station be liable for selling gas to an intoxicated individual who later causes an accident in Tennessee?

Analysis:  Over eight years ago the Tennessee Supreme Court handed down the decision of West v. East Tennessee Pioneer Oil Co., 172 S.W.3rd 545 (Tenn. 2005).  This case set new precedent at that time and it is a good case to review because of the impact it can have on many negligence situations.  It primarily discussed and considered the foreseeability element in a negligence case.

In West, an individual who had been drinking alcohol on the night in question purchased gas from a convenience store gas station.  There were some disputed facts, however, it was plaintiff's contention that this individual was clearly intoxicated and the convenience store employees knew he was intoxicated when they sold him gas.  Additionally, an off-duty employee of the store actually assisted the intoxicated individual by pushing the correct buttons on the gas pump in order to activate the pump.  There was a dispute about whether all of these individuals knew the allegedly intoxicated individual was in fact intoxicated and whether or not he was the actual driver of the vehicle.  After the vehicle left the gas station, it struck another vehicle, causing severe injuries to the plaintiffs. 

The trial court dismissed the cause of action against the gas station.  The trial court basically found that under Tennessee law, the plaintiffs could not hold the convenience store liable under these circumstances.  On appeal, the Tennessee Supreme Court reversed this decision and found that:

we conclude that a convenience store employee owes a duty of reasonable care to persons on the roadways, including the plaintiffs, not to sell gasoline to a person whom the employee knows (or reasonably ought to know) to be intoxicated and to be the driver of the motor vehicle. Similarly, a convenience store employee also owes a duty of reasonable care not to assist in providing gasoline (in this case pumping the gasoline) to a person whom the employee knows (or reasonably ought to know) to be intoxicated and to be the driver of the motor vehicle. We stress that because [f]oreseeability is the test of negligence...

What “Rules of the Road” Apply to Riding an Animal or Animal Drawn Vehicle in Tennessee?

Analysis:  I was recently asked what Tennessee statutes govern whether horses are allowed on roadways and what “rules of the road” would apply to horses or other animal drawn vehicles.  Tennessee has a statute that cover this issue.  T.C.A. § 55-8-105 provides that animals and animal drawn vehicles on the roadway are basically subject to the same laws as all other vehicles on the road.  They are granted the same rights as well as the same duties that are provided to motor vehicles under Tennessee law. 

T.C.A. § 55-8-105 provides as follows:

Every person riding an animal or driving any animal-drawn vehicle upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle by this chapter and chapter 10, parts 1-5 of this title, except those provisions of this chapter and chapter 10, parts 1-5 of this title that by their very nature can have no application.

The only exception listed in this statute where the rules of the road and duties applicable to drivers of motor vehicles do not apply are where the statute by its very nature could have no application.  For example, if there are specific statutes that discuss braking requirements or turn signals, those would not apply to someone who is riding a horse under T.C.A. § 55-8-105. 

Automobile and Trucking Liability - Are Tennessee emergency responders exempt from traffic laws and can they be held responsible for accidents?

Brief Summary:  Tennessee emergency responders are not required to follow certain traffic laws when responding to an emergency call.  However, they are still required to drive with “due regard for the safety of all persons” and can still be held liable if they do not comply with this requirement.

Analysis:  A recent Tennessee Court of Appeals decision discussed an interesting issue about whether emergency responders are required to comply with traffic laws.  The case of Hardeman County v. Judy I. McIntyre, 2013 WL 1227034, No. W2012-01690-COA-R3-CV (Tenn. Ct. App. 2013) involved a situation where an ambulance struck another vehicle while on an emergency call.  The ambulance crossed the double lines in order to proceed around some vehicles but ended up striking the plaintiff’s vehicle, injuring the plaintiff.  The trial court assessed 60% of the fault against the ambulance driver and 40% of the fault against the driver of the other vehicle.  The case was appealed and the respective duties were discussed in detail.

The court noted that T.C.A. § 55-8-108 provides that emergency responders are exempt from certain traffic laws in Tennessee.  The key parts to T.C.A. § 55-8-108 are as follows:

Medical Malpractice/Healthcare Liability Action – When is a cause of action considered to be based in medical malpractice as opposed to negligence under Tennessee law?

Analysis:  The Tennessee Court of Appeals in Suzanne Renee Williams-Ali v. Mountain States Health Alliance, 2013 WL 357580, No. E2012-00724-COA-R3-CV (Tenn. Ct. App. January 30, 2013) discussed when a case is a medical malpractice cause of action (now called a “healthcare liability action” under the new statute) as opposed to simply a negligence claim.   Of course, this is of great importance because of the hoops that one must jump through in order to comply with the various pre-suit requirements for a Tennessee medical malpractice case.  This lawsuit concerned a plaintiff who was dropped from a table by the defendant’s employees while she was undergoing myocardial imaging.  She essentially fell off the table and landed on the floor and sustained injuries as a result of the fall. Williams-Ali at 1.  The plaintiff filed a lawsuit against the defendant Mountain States Health Alliance under a theory of negligence, not as a medical malpractice action.

As a result, the defendant filed a motion to dismiss asserting the causes of action in this matter were actually medical malpractice as opposed to ordinary negligence and requested dismissal because the plaintiff did not comply with the medical malpractice pre-suit requirements.  Ultimately, the trial court granted summary judgment to the defendant and found that the gravamen of the complaint sounded in medical malpractice as opposed to ordinary negligence.  The non-compliance with the pre-suit requirements was therefore fatal to the case.  This case was appealed and the plaintiff asserted that medical training and experience were not necessary to place or secure a patient onto the scan table for the nuclear stress test.  As a result, the argument was that this case should be considered a negligence case, not medical malpractice.

As the Supreme Court has previously held, “cases involving health or medical entities do not automatically fall within the medical malpractice statute.”  Williams-Ali at 4 (quoting Draper v. Westerfield, 181 S.W.3d 283, 290 (Tenn. 2005)).  The court further noted that a recent Tennessee Supreme Court provided a lengthy and well-reasoned opinion discussion of the difference between a medical malpractice claim and an ordinary negligence claim (See Estate of French v. Stratford House, 333 S.W.3d 546, 555-60 (Tenn. 2011)).  In the Estate of French case the Supreme Court discussed these issues and stated as follows:

Premises Liability Law – In Tennessee if a healthy tree falls on a neighbor’s property and does damage, is the tree owner responsible for this damage?

Brief Summary:  The short answer is that in Tennessee a homeowner is generally not responsible for damage caused by their healthy tree that falls onto the property of another and causes damage.  The only time the premises owner could be responsible is if the tree is causing a nuisance or encroaching on the neighbor’s property.

Analysis:  The Tennessee Court of Appeals decided a recent case on a commonly asked question under Tennessee law.  The question is basically whether a homeowner is responsible if one of their live, healthy trees falls onto their neighbor’s property and does damage.  The Tennessee Court of Appeals in Cindy Russell v. Gene Claridy, 2013 WL 655235, No. M2012-01054-COA-R3-CV (Tenn. Ct. App. February 20, 2013) discussed a situation where a live healthy tree fell from the defendant’s property onto the plaintiff’s property, landing on the plaintiff’s van and causing damage of approximately $8,810.00.  In this matter the plaintiff had actually contacted the defendant some years prior regarding concerns about the tree however the defendant did not see any problems with the tree because it was healthy and basically on pasture land.  As a result, the defendant did not remove the tree.

The trial court ultimately found the tree fell due to an “act of God” and therefore the defendant was not liable for damages to the van.  There was no evidence presented to the court that the tree was unhealthy, was likely to fall or that the defendant had any notice of any likelihood of the tree falling.

On appeal, the plaintiff asserted this tree should still be constituted a nuisance because of the threat to the plaintiff’s property.  The court did note there are other Tennessee decisions which find that encroaching trees onto another person’s property that “adversely affected the plaintiff’s reasonable and ordinary use and occupation of her home, not to mention posing hazards to the plaintiff’s health and safety,” can constitute a nuisance under Tennessee law.  Russell at 3 (citing Lane v. W. J. Curry and Sons, 92 S.W.3d 355, 363...