The Case: McClenahan v. Cooley , 806 S.W.2d 767 (Tenn. 1991).
The Basic Facts: Plaintiff brought a wrongful death action against Defendant after Defendant's car was stolen and a high-speed chase with police ensued, and ended when the thief collided with a vehicle driven by Plaintiff's wife, killing her and Plaintiff's children. The Defendant had left his keys in his car's ignition and entered a bank before the car was stolen.
The Bottom Line:
- "This Court thereafter granted the Plaintiff's Rule 11 application for permission to appeal to decide the issue of whether a jury should be allowed to determine the issues of proximate cause and intervening cause in cases such as this where the keys are left in the ignition of an automobile that is stolen and ultimately involved in an accident a short time later." 806 S.W.2d at 770.
- "This Court is of the opinion that the approach taken by the substantial (and growing) number of jurisdictions representing the minority view is the approach that should be taken in Tennessee, in part, because principles of common law negligence long established in this state provide a sufficient analytical framework to dispose of cases with fact patterns similar to the one presented in this appeal. First, it is axiomatic that in order for there to be a cause of action for common law negligence, the following elements must be established: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct falling below the applicable standard of care amounting to a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate, or legal, cause. See Lindsey v. Miami Dev. Corp., 689 S.W.2d 856, 858 (Tenn. 1985); Shouse v. Otis, [448 S.W.2d 673 (Tenn. 1969)]; Ruth v. Ruth, [372 S.W.2d 285 (Tenn. 1963)]. Our opinions have recognized that proximate causation is the 'ultimate issue' in negligence cases. Lancaster v. Montesi, [390 S.W.2d 217, 220 (Tenn. 1965)]; Roberts v. Robertson CountyBd. of Ed., 692 S.W.2d 863, 871." Id. at 774.
- "Taken as a whole, our cases suggest a three-pronged test for proximate causation: (1) the tortfeasor's conduct must have been a 'substantial factor' in bringing about the harm being complained of; and (2) there is no rule or policy that should relieve the wrongdoer from liability because of the manner in which the negligence has resulted in the harm; and (3) the harm giving rise to the action could have been reasonably foreseen or anticipated by a person of ordinary intelligence and prudence. See Smith v. Gore, 728 S.W.2d 738, 749-50 (Tenn. 1987);Ford Motor Co. v. Eads, [457 S.W.2d 28, 32 (Tenn. 1970)]; Ray Carter, Inc. v. Edwards, [436 S.W.2d 864, 867 (Tenn. 1969)]; Lancaster v. Montesi, [390 S.W.2d 217, 221 (Tenn. 1965)]; Roberts v. Robertson County Bd. of Ed., [692 S.W.2d 863, 871 (Tenn. Ct. App. 1985)]; Caldwell v. Ford Motor Co., [619 S.W.2d 534, 541-43 (Tenn. Ct. App. 1981)]; Wyatt v. Winnebago Industries, Inc., [566 S.W.2d 276, 280-81 (Tenn. Ct. App. 1977)]. The foreseeability requirement is not so strict as to require the tortfeasor to foresee the exact manner in which the injury takes place, provided it is determined that the tortfeasor could foresee, or through the exercise of reasonable diligence, should have foreseen, the general manner in which the injury or loss occurred. Roberts at 871; Wyatt at 280-81. 'The fact that an accident may be freakish does not per se make it unpredictable or unforeseen.' City of Elizabethton v. Sluder, 534 S.W.2d 115, 117 (Tenn. 1976). It is sufficient that harm in the abstract could reasonably be foreseen. Shell Oil Co. v. Blanks, [330 S.W.2d 569, 572 (Tenn. Ct. App. 1959)]. Finally, proximate causation is a jury question unless the uncontroverted facts and inferences to be drawn from them make it so clear that all reasonable persons must agree on the proper outcome. Brookins v. The Round Table, Inc., 624 S.W.2d 547, 550 (Tenn. 1981); City of Elizabethton at 117; Frady v. Smith, 519 S.W.2d 584, 586 (Tenn. 1974);Phelps v. Magnavox Co. of Tenn., [466 S.W.2d 226 (Tenn. Ct. App. 1970)]; Kroger Co. v. Giem, [387 S.W.2d 620, 625 (Tenn. 1964)]." Id. at 775.
- "With respect to superseding intervening causes that might break the chain of proximate causation, the rule is established that it is not necessary that tortfeasors or concurrent forces act in concert, or that there be a joint operation or a union of act or intent, in order for the negligence of each to be regarded as the proximate cause of the injuries, thereby rendering all tortfeasors liable. See Cartwright v. Graves , [184 S.W.2d 373, 381 (Tenn. 1944)]; Whitehurst v. Howell, [98 S.W.2d 1071, 1081 (Tenn. Ct. App. 1936)]; Morris v. Bolling, [218 S.W.2d 754, 758 (Tenn. Ct. App. 1949)]. There is no requirement that a cause, to be regarded as the proximate cause of an injury, be the sole cause, the last act, or the one nearest to the injury, provided it is a substantial factor in producing the end result. Lancaster, 390 S.W.2d at 221; Kroger Co., 387 S.W.2d at 626; Roberts at 871. An intervening act, which is a normal response created by negligence, is not a superseding, intervening cause so as to relieve the original wrongdoer of liability, provided the intervening act could have reasonably been foreseen and the conduct was a substantial in bringing about the harm. Solomon v. Hall, [767 S.W.2d 158, 161 (Tenn. Ct, App. 1988)]. 'An intervening act will not exculpate the original wrongdoer unless it appears that the negligent intervening act could not have been reasonably anticipated.' Evridge v. American Honda Motor Co., 685 S.W.2d 632, 635 (Tenn. 1985); Ford Motor Co. v. Wagoner, [192 S.W.2d 840, 843 (Tenn. 1946)]. See also [RESTATEMENT (SECOND) of Torts, Section 447 (1965)]. 'It is only where misconduct was to be anticipated, and taking the risk of it was unreasonable, that liability will be imposed for consequences to which such intervening acts contributed. [Prosser, supra]. Just as in the case of proximate causation, the question of superseding intervening cause is a matter peculiarly for the jury because of foreseeability considerations.' See Brookins at 550; Evridge at 635; Young v. Reliance Electric Co., [584 S.W.2d 663, 669 (Tenn. Ct. App. 1979)]." Id. at 775-76.
- "Giving foremost consideration to the established principles of common law negligence discussed above, we conclude, as many other jurisdictions have, that leaving a key in the ignition of an unattended automobile in an area where the public has access, be it public or private property, could be found by a reasonable jury to be negligent, whether or not a prohibitory statute in involved. The mere fact that an automobile is parked on private property and no statute is violated should not in all cases dictate a determination of absolute non-liability. The basic issue is foreseeability, both as to proximate causation and superseding intervening cause, and that is a question of fact rather than of law upon which reasonable minds can and do differ, at least where the accident has occurred during the flight of the thief relatively close thereto in time and distance. [Footnote omitted]. The fact that our Legislature has deemed it necessary as a matter of public safety to enact [Tenn. Code Ann. § 55-8-162], see Justus, supra, further attests to a general recognition of the hazard in question and its potential for great harm to innocent users of the highway such as the members of the Plaintiff's family who were killed and injured in this case. We thus expressly reject the contention that an intervening criminal act under the circumstances presented here automatically breaks the chain of causation as a matter of law, concluding instead that reasonable minds can differ as to whether a person of ordinary prudence and intelligence through the exercise of reasonable diligence could foresee, or should have foreseen, the theft of an unattended automobile with the keys in the ignition left in an area where the public has access, and could likewise foresee the increased risk of the public should a theft occur. This was the holding in Justus in the situation where the vehicle was left on public property and we see no compelling justification or not applying the same analysis when the vehicle is left unattended on private property to which the public has ready access as in the case at bar. In sum, a jury might conclude in this case that a reasonable person would not have left the keys in the ignition of his unattended car parked in a lot where the public had ready access. As a result, the decisions with regard to foreseeability as it relates to proximate cause and intervening cause should properly be submitted to a jury." Id. at 776.
- "Nothing, however, stated hereinabove is intended to imply that a fact-finder could not reasonably return a verdict for the car owner in this case, or that the evidence in some comparable situation might not possibly justify even a judgment for the vehicle owner as a matter of law. Determinations in this regard must necessarily depend on the entire circumstantial spectrum, such as the position of the vehicle and the nature of the locality in which the vehicle was left, the extent of access thereto, operational condition of the vehicle, its proximity to surveillance, the time of day or night the vehicle is left unattended, and the length of time (and distance) elapsing from the theft to the accident. See Justus, 349 S.W.2d at 794." Id.
Other Sources of Note: Dixson v. Atlantic Soft Drink Co., 980 S.W.2d 200 (Tenn. Ct. App. 1998) (declining to extend McClenahan and upholding summary judgment for Defendant where a truck, parked in a private, fenced and locked lot, was stolen and crashed into a residence).
Recent Cases: Gonzales v. Long , No. W2008-02605-COA-R3-CV, 2009 WL 3321304 (Tenn. Ct. App. Oct. 15, 2009) (upholding jury verdict for defendant stating jury was not required to accept causation testimony of plaintiff's expert witness); Robbins v. Perry County, No. M2008-00548-COA-R3-CV, 2009 WL 1162579 (Tenn. Ct. App. Apr. 28, 2009) (upholding trial court's dismissal of wrongful death action where evidence did not support claim that failure to serve an order of protection was the cause in fact or the proximate cause of the vehicular accident and decedent's death); Jacocks v. Memphis Light, Gas & Water, No. W2008-00802-COA-R3-CV, 2008 WL 4613570 (Tenn. Ct. App. Oct. 13, 2008) (reversing trial court's judgment against defendant holding plaintiff presented insufficient evidence of causation where he failed to show the accident would have occurred even if the defendant's brakes had been working); Hinson v. Claiborne & Hughes Health Center, No. M2006-02306-COA-R3-CV, 2008 WL 544662 (Tenn. Ct. App. Feb. 26, 2008) (affirming dismissal because plaintiffs were unable to refute affidavit by defendant's medical expert stating that the medical records showed that plaintiffs' father died from causes unrelated to any act or omission on the part of defendant nursing home or its employees); Miller v. Beaty Lumber, Inc., No. M2007-00253-COA-R3-CV, 2007 WL 4523098 (Tenn. Ct. App. Dec. 20, 2007) (upholding directed verdict finding plaintiff failed to produce any evidence of causation); Mullins v. Redmon, No. W2007-00616-COA-R3-CV, 2007 WL 4415266 (Tenn. Ct. App. Dec. 19, 2007) (affirming summary judgment finding evidence insufficient to establish causation).