Tennessee Tort of “Intentional Infliction of Emotional Distress”

Tennessee has the tort of Intentional Infliction of Emotional Distress which is an important cause of action that allows a plaintiff to recover damages when the conduct of the defendant is outrageous.  There are very specific requirements for a plaintiff to be able to prove this cause of action in court.  In order to support a claim for Intentional Infliction of Emotional Distress, the Tennessee Supreme Court has held that the following elements are required:

The elements of an intentional infliction of emotional distress claim are that the defendant's conduct was (1) intentional or reckless, (2) so outrageous that it is not tolerated by civilized society, and (3) resulted in serious mental injury to the plaintiff. Regarding the first element, the law is clear in Tennessee and elsewhere that either intentional or reckless conduct on the part of the defendant will suffice to establish intentional infliction of emotional distress.

Rogers v. Louisville Land Company et al, 367 S.W.3d 196, 205 (Tenn. 2012).  The Rogers case is a very important Tennessee Supreme Court case that definitively outlined the requirements for this cause of action.  In this case the court made it very clear that there is no difference between a claim for Intentional Infliction of Emotional Distress and the claim for Reckless Infliction of Emotional Distress. Both are considered part of the same cause of action (either intentional or reckless conduct is sufficient to meet the threshold required for this cause of action).

Further, the familiar standard of “outrageous” conduct that has long been required for an Intentional Infliction of Emotional Distress claim still stands. Specifically, that the conduct must be “so outrageous that it is not tolerated by civilized society”.  Obviously, this is generally a jury issue however courts have long stepped in to evaluate whether the facts of a case meet this threshold before sending the case to the jury.  This standard is a standard that can change over time because it is based on what is tolerated by “civilized society”.  For example, it is my view that certain types of sexual harassment and sexually hostile work environment situations are currently experiencing a shift in what is tolerated by “civilized” society. Importantly, our country is making significant progress on what it considers to be outrageous conduct by individuals who sexually harass women.  It is my position, therefore, that this standard has changed over time and what may not have been considered outrageous conduct in the 1980s certainly is outrageous conduct today.

Tennessee Supreme Court Overturns COA Dedmon case - Key Decision for Personal Injury cases on Medical Bill Evidence

The Tennessee Supreme Court issued a very important decision today on the appeal in the Dedmon case.  Many people have been waiting on this decision from the plaintiff’s side and the defendant’s side.  The Dedmon case was the case where the Tennessee Court of Appeals ruled that defendants, in personal injury cases, could introduce evidence of the discounted amounts accepted by health providers or paid by insurance companies.  I previously blogged on this prior ruling here.  

The Tennessee Supreme Court reversed the key part of the prior Tennessee Court of Appeals decision today.  The key part in the new case (and a good summary of the current status of the law on this issue) is the following:

In sum, we hold that the definition of “reasonable charges” under the Hospital Lien Act set forth in West v. Shelby County Healthcare Corp., 459 S.W.3d 33 (Tenn. 2014), does not apply directly to determinations of “reasonable medical expenses” in personal injury cases; the West definition of “reasonable charges” is limited in application to interpretation of the Hospital Lien Act. We also decline to alter existing law in Tennessee regarding the collateral source rule. Consequently, the Plaintiffs may submit evidence of Mrs. Dedmon’s full, undiscounted medical bills as proof of her “reasonable medical expenses,” and the Defendants are precluded from submitting evidence of discounted rates for medical services accepted by medical providers as a result of Mrs.  Dedmon’s insurance. The Defendants remain free to submit any other competent evidence to rebut the Plaintiffs’ proof on the reasonableness of Mrs. Dedmon’s medical expenses, so long as the Defendants’ proof does not contravene the collateral source rule.  Thus, we affirm the Court of Appeals’ decision to reverse the trial court’s grant of the Defendants’ motion in limine, but we reverse the Court of Appeals to the extent that it held that the Defendants could introduce evidence of lesser amounts accepted by Mrs. Dedmon’s medical providers in order to rebut the Plaintiffs’ proof on reasonableness.

As a result, this basically returns the status of the law on this issue in Tennessee to the prior status quo.  Usually, the only evidence that a jury will now hear about the medical bills in a case is the amount of the medical bills charged by the medical care provider.  This effectively greatly inflates (in many situations) the amount of “medical bills” for an injury.  However, this is the law in Tennessee.  I expect this will not be the end of this issue and the Tennessee Legislature will take a look at trying to find a solution in the coming years.

Sexual Harassment and Sexually Hostile Work Environment Claims in Tennessee – General Overview

Sexual Harassment and Sexually Hostile Work Environment claims are both recognized in Tennessee under state law and federal Law (pursuant to Title VII).  These are very significant claims often involving the harassment of a female by a male supervisor or co-worker.  The standards for an employer’s liability are different under each of those scenarios (this will be discussed in a subsequent blog post on this topic).  It is important to note that Tennessee courts often look to federal law for guidance on interpretation of Tennessee’s own discrimination statutes, because they are so similar.

A sexual harassment “quid pro quo” claim in Tennessee is established using the following elements to support the cause of action:

(1) that the employee was a member of a protected class; (2) that the employee was subjected to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors; (3) that the harassment complained of was based on sex; (4) that the employee's submission to the unwelcome advances was an express or implied condition for receiving job benefits or that the employee's refusal to submit to the supervisor's demands resulted in a tangible job detriment; and (5) the existence of respondeat superior liability.

Sanders v. Lanier, 968 S.W.2d 787, 789 (Tenn. 1998).  This type of claim mainly focuses on unwanted sexual advances or requests for sexual favors.  Believe it or not, these situations are much more common than you would think.  Federal law has similar protections against this type of action in the workplace.

Another type of claim under Tennessee law is a sexually hostile work environment claim.  This is based on sexual harassment of an employee based on their sex.  Often, this could involve crude sexual jokes, sexual comments, inappropriate touching or grabbing and other similar conduct – most often directed at women.  Tennessee courts have provided the following as the elements required for this type of case in Tennessee:

To prevail on a hostile work environment claim in a sexual harassment case, an employee must assert and prove that (1)...

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...

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.

Piercing the Corporate Veil in Tennessee – When Can a Judgment Against a Corporation be the Personal Responsibility of the Shareholders?

The Tennessee Court of Appeals recently decided a case (F&M Marketing Services, Inc. v. Christenberry Trucking and Farm, Inc., E2016-00205-COA-R3-CV, 2017 WL 417223_(Tenn. Ct. App. 2017)) involving a request to pierce the corporate veil of a Defendant after the Plaintiff got a substantial judgment against that Defendant for breach of contract.  The total judgment in this case was $375,524.29.  After the initial judgment was entered, the Plaintiff learned that the Defendant had no assets to satisfy the judgment.  As a result, the Plaintiff petitioned the trial to hold the primary shareholder of the Defendant personally liable for the judgment against the Defendant corporation.  The Tennessee Court of Appeals did a good job discussing the circumstances when an individual shareholder can be found personally responsible for a judgment against a corporation in Tennessee. 

The Court noted that the most important case outlining when it is appropriate to pierce the corporate veil in Tennessee is the FDIC v. Allen, 584 F. Supp. 386 (E.D. Tenn. 1984) decision.  The Court noted that numerous Tennessee Court of Appeals and the Tennessee Supreme Court have nearly uniformly considered the “Allen factors” that were outlined in this case many years ago.  The factors to be considered when determining whether to allow a judgment to be against individual shareholders and simply disregarding the corporate veil include the following:

Factors to be considered in determining whether to disregard the corporate veil include not only whether the entity has been used to work a fraud or injustice in contravention of public policy, but also: (1) whether there was a failure to collect paid in capital; (2) whether the corporation was grossly undercapitalized; (3) the nonissuance of stock certificates; (4) the sole ownership of stock by one individual; (5) the use of the same office or business location; (6) the employment of the same employees or attorneys; (7) the use of the corporation as an instrumentality or business conduit for an individual or another corporation; (8) the diversion of corporate assets by or to a stockholder or other entity to the detriment of creditors, or the manipulation of assets and liabilities in another; (9) the use of the corporation as a subterfuge in illegal transactions; (10) the formation and use of the corporation to transfer to it the existing liability of another person or entity; and (11) the failure to maintain arms length relationships among related entities.

F&M Marketing at 3 (quoting Rogers v. Louisville Land Company, 367 S....

Does Employer’s Admission of Vicarious Liability for Actions of Employee Insulate the Employer from Other Causes of Action?

The Tennessee Court of Appeals recently dealt with an issue that has not been previously discussed by Tennessee Appellate courts in Melanie Jones, Individually and on behalf of Matthew H. V. Shavonna Rachelle Windham, et al., No. W2015-00973-COA-R10-CV, 2016 WL 943722 (Tenn. Ct. App. 2016).  The question deal with the situation where an employer and employee are both sued due to the actions of the employee in causing an automobile accident (while working for the employer).  The employer, in the Answer to Complaint, admitted they were vicariously liable for the actions of the employee.  The question, therefore, was whether the plaintiff could still proceed with other claims against the employer including negligent hiring, negligent retention and negligence per se for their own independent negligent actions when they had already admitted vicarious liability for the actual accident.    

For some reason, the plaintiff wanted to pursue various individual cause of actions directly against the employer in this case.  Perhaps they thought it would increase the damages because the employer took actions that were inappropriate.  Interestingly, many other state courts have decided this issue and they are basically evenly split on how to handle this situation.  Thus, the Tennessee Court of Appeals went into a detailed assessment of the various positives and negatives of both avenues.  The Court ultimately held that the “an employer’s admission of vicarious liability does not bar a plaintiff from proceeding against the employer on independent claims of negligence.” Jones at 5. 

The Court admitted that this holding does make it necessary for trial courts to potentially guard juries from being prejudice by evidence against the employer after vicarious liability is already admitted.  As a result, the Court discussed in detail the possibility of trying to avoid that prejudice by using jury instructions or ultimately by bifurcating the proceedings under Tennessee Rule of Civil Procedure 42.02.   This rule provides as follows: 

The court for convenience or to avoid prejudice may in jury trials order a separate trial of any one or more claims, cross-claims, counterclaims, or third-party claims, or issues on which a jury trial has been waived by all parties. For the same purposes the court may, in nonjury trials, order a separate trial of any one or more claims, cross-claims, counterclaims, third-party claims, or issues.

Tennessee Court of Appeals Finds Planting Trees that Block View of Golf Course is Not a Nuisance

The Tennessee Court of Appeals recently decided whether it was considered a nuisance to block a neighbor’s view of a golf course with trees.  The case of Stibler v. The Country Club, Inc., No. E2014-00743-COA-R3-CV, 2015 WL 1093638 (Tenn. Ct. App. 2015) is unique and has interesting facts.  In this situation the plaintiff filed suit against a country club that ran a golf course because the country club planted trees that blocked the plaintiff’s (who owned a neighboring property) view of the golf course.  The court first considered whether the planting of trees violated the covenants and restrictions for the subdivision.  There was nothing in the actual covenants and restrictions that were violated by the planting of these trees.  As a result, the court next turned to the issue of to whether blocking of a view to a golf course by planting trees is considered nuisance under Tennessee law.

There is no question that trees can constitute a nuisance in certain circumstances (See prior post on this issue).  In fact, the Tennessee Supreme Court has provided guidance specifically regarding trees and nuisance stating that “encroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property.”  Stibler at 4 (quoting Lane v. W. J. Curry & Sons, 92 S.W.3d 355, 364 (Tenn. 2002)). 

In the Stibler case at issue, it was undisputed that the country club planted trees on its own property and that the trees did not encroach on plaintiff’s property in any way.  Further, these trees did not cause any physical damage to the plaintiff’s property.  The sole basis for plaintiff’s claim is that there was economic damage caused to the plaintiff’s property resulting from the loss of a golf course view.  The Tennessee Court of Appeals found that losing a view of an adjacent golf course on a country club’s property due to the planting of trees is “simply insufficient to give rise to a claim for nuisance.” Stibler at 4