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...

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...

Foreseeability Requirement is Essential for a Tennessee Negligence Cause of Action

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.

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

Plaintiff in Tennessee Slip and Fall Case Must Identify Object that Caused Fall

A recent Tennessee Court of Appeals decision, Hilda Willis v. McDonalds Restaurants of Tennessee, Inc., No. E2015-00615-COA-R3-CV, 2015 WL 9426271 (Tenn. Ct. App. 2015), involved a slip and fall at a McDonald’s in Tennessee and it provided an interesting issue.  In this case the plaintiff was maneuvering around the area where drinks were served at a McDonald’s.  As she left that area she saw a french fry on the bottom corner of the surface next to the service counter.  She stepped over the french fry and claimed that there was a sharp object that she felt through her shoe.  She believes this is what caused her to fall.  When she fell she dropped her drinks therefore there was ice everywhere.  Because of this, there was no ability to actually identify the piece of ice or other object that allegedly caused her to fall. 

The Plaintiff’s cause of action was dismissed on a motion for summary judgment at the trial court level.  On appeal, the plaintiff argued that this granting of summary judgment was improper because there were multiple dangerous conditions in the area including a slippery floor littered with debris, the French fry, the absence of a mat at the drinks station and slippery tile flooring.  Additionally, plaintiff claims that she slipped on a hard object which may have been ice but could not be positively identified because ice was everywhere after the incident.  The appellate court, found that “the fatal flaw in this action is that plaintiffs cannot identify the hard object that actually caused the fall; therefore they cannot establish that defendant caused the dangerous condition or that defendant had actual or constructive notice that the condition existed long enough to be discovered by proper diligence.” Willis at 4.

The Court went on to note that the defendant may in fact be responsible for numerous dangerous conditions throughout the restaurant.  However, it is the plaintiff’s responsibility in a premises liability case to identify and prove the dangerous condition that actually caused the fall.  In this particular case the plaintiff simply could not identify the actual condition that was responsible and without additional evidence concerning the identity object the appellate court affirmed summary judgment.

This case shows how difficult slip and fall premises liability cases can be in Tennessee.  The plaintiff must affirmatively identify the dangerous condition that caused the fall.  Obviously, this can be done in some circumstances, but in a case like this where there are many possible causes of the fall, the plaintiff’s failure to identify the object is fatal to plaintiff’s case.

Tennessee Homeowners Must Have Notice of a Dog’s Dangerous Propensities to be Liable in a Dog Bite Case

A recent Tennessee Court of Appeals decision dealt with an interesting dog bite case question.  In Moore v. Gaut, 2015 WL 9584389 (Tenn. Ct. App. 2015) the plaintiff was bitten by the defendant’s Great Dane dog while the dog was in the Defendant’s own fenced in back yard.  The plaintiff was actually on the other side of the fence when he approached the dog. When he came close the dog bit the plaintiff on the face.  The trial court dismissed the case on summary judgment because there was no evidence that the dog had any prior propensity for attacks and there was no evidence of any actual prior attacks. 

The plaintiff appealed this decision and argued that the large size of the Great Dane as well as the breed of the dog should cause the dog to be characterized as part of a “suspect class” of dogs.  Further, that this, standing along, is enough to establish a genuine material fact as to whether the plaintiff should have known the dog had dangerous propensities.  The Tennessee Court of Appeals was asked by the plaintiff to extend T.C.A. § 44-8-413 (a 2007 dog bite statute discussed below) and basically find that certain dogs are simply part of a “suspect class” of dogs because of their size, weight, strength, and general propensities. 

The appellate court noted that this argument by plaintiff is not found in prior Tennessee case law.  The Court therefore declined to vary from the well-established Tennessee rule in dog bite cases in Tennessee.  The Court stated that “[f]or cases like this one, where the dog caused injury on its owner's property, the statute clearly retains and codifies the common law requirement that a claimant establish that the dog's owner knew or should have known of the dog's dangerous propensities.” Gaut at 5. 

As noted above the Tennessee legislator adopted a new statute dealing with dog bit cases in 2007. This statute had not been addressed by the Tennessee Court of Appeals until this case.

Expert Testimony Not Required in Standard Tennessee Premises Liability Cases

The recent Tennessee Court of Appeals decision of Gary Lee Steele v. Primehealth Medical Center, P.C., No. W2015-00056-COA-R3-CV, 2015 WL 9311846 (Tenn. Ct. App. 2015) is an interesting premises liability case that discusses the potential requirement of expert proof for this type of case.  This case involved a slip/trip and fall on the premises of the defendant due to an allegedly defective sidewalk.  The trial court excluded the plaintiff’s expert proof because the plaintiff failed to comply with the trial court’s scheduling order and expert proof was not disclosed during discovery. As a result, the trial court granted summary judgment to the defendant because the plaintiff failed to provide expert proof on whether the sidewalk was unreasonably dangerous. 

This case was appealed to the Tennessee Court of Appeals and that Court took issue with the trial court’s determination that this expert testimony was mandatory.  The Tennessee Court of Appeals discussed the fact that in more and more cases expert testimony is needed due to the complexity of our civilization and the specialization that is present in our society.  However, the Court noted specifically that:

[We] are not aware of any general requirement, established by a court or by the legislature, that expert testimony must be presented in order to prove the existence of a dangerous condition in a premises liability case. As a general rule, no expert testimony is required when a case involves ordinary negligence.

Steele at 6.  There simply is no prior definitive case law on this issue that forces this requirement in this type of case.  The Court went on to note several situations in Tennessee where the Tennessee Supreme Court has found that expert proof is not required including the following:

- Whether a party has sustained a serious mental injury in cases of intentional infliction of emotional distress.

- Whether a construction contractor and the public utility company that hired the contractor were negligent in leaving a ditch open over a weekend of heavy rain.

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...

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)

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.