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§16.1 Abuse or Breach of Confidential Relationship

§16.1 Abuse or Breach of Confidential Relationship

The Case: Givens v. Mullikin , 75 S.W.3d 383 (Tenn. 2002).

The Basic Facts: Plaintiff initially brought suit against Defendant after she was injured in an automobile accident. The Defendant's insurance company then hired an attorney to defend the Defendant. This attorney engaged in substantial discovery, but was eventually fired and replaced by a new law firm. The new firm then engaged in extensive discovery of its own. Plaintiff then brought a separate action on a theory of vicarious liability for the defense attorneys' alleged abuse of process, inducement to breach express and implied contracts of confidentiality, inducement to breach a confidential relationship, and invasion of privacy during discovery.

The Bottom Line:

  • "[P]rior cases make it clear that a confidential relationship is not one merely exhibiting mutual trust and confidence. Rather, the relationship is more accurately described as one in which ''confidence is placed by one in the other and the recipient of that confidence is the dominant personality, with ability, because of that confidence, to influence and exercise dominion and control over the weaker or dominated party.'' Mitchell v. Smith, 779 S.W.2d 384, 389 (Tenn. Ct. App. 1989) (quoting Iacometti v. Frassinelli, 494 S.W.2d 496, 499 (Tenn. Ct. App. 1973))." 75 S.W.3d at 410.
  • "This Court has long recognized that an abuse or breach of a confidential relationship to gain a benefit or advantage will give rise to an action for damages. See Leake v. Gray, Shillinglaw & Co., [226 S.W.2d 298, 305 (Tenn. 1949)]. As we stated in Turner v. Leathers, 232 S.W.2d 269, 271 (Tenn. 1950)],

Whenever two persons stand in such a relation that, while it continues, confidence is necessarily reposed by one, and the influence which naturally grows out of that confidence is possessed by the other, and this confidence is abused, or the influence is exerted to obtain an advantage at the expense of the confiding party, the person so availing himself of his position will not be permitted to retain the advantage, although the transaction could not have been impeached if no confidential relation had existed.

(internal quotations omitted). To be clear, then, a plaintiff may recover damages from an abuse or breach of a confidential relationship only by showing that (1) the defendant was in a position to influence or control the plaintiff; (2) the defendant used the confidences given to him or her to obtain some benefit from, or advantage over, the plaintiff; and (3) the plaintiff, as the dominated party in the relationship, suffered some detriment at the hands of the defendant. See Mahunda v. Thomas, [402 S.W.2d 485, 489 (Tenn. Ct. App. 1965)] (citing Peoples Bank v. Baxter, [298 S.W.2d 732, 737 (Tenn. Ct. App. 1956)]); see also Kelly v. Allen, 558 S.W.2d 845, 848 (Tenn. 1977) (stating that "there must be a showing that there were present the elements of dominion and control by the stronger over the weaker")." Id.

  • "In reviewing the complaint in this case, we find that the plaintiff has not stated a claim for inducement to breach a confidential relationship. While the physician-patient relationship can constitute such a relationship, see Shadrick v. Coker, 963 S.W.2d 726, 735-36 (Tenn. 1998); Turner, [232 S.W.2d at 271], the plaintiff has not alleged that her physician used the trust or confidences given to him either to obtain an advantage over her or to extract some benefit from her." Id. at 410-11.

After an accident, many injury victims and their families want more information on the accident and their legal rights. Consequently, many of them have found their way to these pages. While we are happy you are here, please understand Day on Torts: Leading Cases in Tennessee Tort Law was written to be a quick, invaluable reference for Tennessee tort lawyers. While the book provides the leading case for more than 300 tort law subjects and thousands of related case citations, it is not a substitute for personalized legal advice from a qualified lawyer.

Rather than researching these legal issues alone, we urge you to contact one of our award-winning lawyers who can sit down with you, review your case, answer your questions and clearly explain your rights and your options in a no-cost, no-obligation consultation. Our experienced attorneys handle all personal injury and wrongful death cases on a contingency basis, so we only get paid if we win. If for any reason you are unable to come to our office, we will gladly come to you.

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

The book is now available electronically by subscription at The new format allows us to keep the book current as new opinions are released. BirdDog Law also has John's Tennessee Law of Civil Trial and Compendium of Tennessee Tort Reform Statutes available by subscription, as well as multiple free resources to help Tennessee lawyers serve their clients

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