§25.1 Generally

§ 25.1 Generally

The Case: Burroughs v. Magee , 118 S.W.3d 323 (Tenn. 2003).

The Basic Facts: Plaintiff was injured and her husband was killed in an accident with a truck. Plaintiff brought an action for personal injury and wrongful death against the truck driver and against a doctor who had prescribed two medications to the truck driver.

The Bottom Line:

  • "All persons have a duty to use reasonable care to refrain from conduct that will foreseeably cause injury to others. See Doe v. Linder Constr. Co., Inc., 845 S.W.2d 173, 178 (Tenn. 1992). Thus, it has been said that duty is the legal obligation that a defendant owes a plaintiff to conform to a reasonable person standard of care in order to protect against unreasonable risks of harm. Staples, 15 S.W.3d at 89; McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995). In assessing whether a duty is owed in a particular case, courts apply a balancing approach, based upon principles of fairness, to identify whether the risk to the plaintiff was unreasonable. Turner v. Jordan, 957 S.W.2d 815, 818 (Tenn. 1997). A 'risk is unreasonable and gives rise to a duty to act with due care if the foreseeable probability and gravity of harm posed by defendant's conduct outweigh the burden upon defendant to engage in alternative conduct that would have prevented the harm.' McCall, 913 S.W.2d at 153. A number of factors are considered in making this determination, including:
    the foreseeable probability of the harm or injury occurring; the possible magnitude of the potential harm or injury; the importance or social value of the activity engaged in by defendant; the usefulness of the conduct to defendant; the feasibility of alternative, safer conduct and the relative costs and burdens associated with that conduct; the relative usefulness of the safer conduct; and the relative safety of the alternative conduct.
    Id .; see also Coln v. City of Savannah, 966 S.W.2d 34, 39 (Tenn. 1998)." 118 S.W.3d at 328-29.
  • "Additionally, considerations of public policy are crucial in determining whether a duty of care existed in a particular case. Bain v. Wells, 936 S.W.2d 618, 625 (Tenn. 1997); Bradshaw, 854 S.W.2d at 870. As we stated in Bradshaw:
    the imposition of a legal duty reflects society's contemporary policies and social requirements concerning the right of individuals and the general public to be protected from another's act or conduct. Indeed, it has been stated that "'duty' is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.
    Id ., (quoting [W. Keeton, Prosser and Keeton on the Law of Torts § 53 at 358 (5th ed. 1984)] (internal citations omitted))." Id. at 329.

Other Sources of Note: West v. East Tennessee Pioneer Oil Co. , 172 S.W.3d 545, 556 (Tenn. 2005) (holding that "convenience store employees owed a duty of reasonable care to persons on the roadways, including the plaintiffs, when selling gasoline to an obviously intoxicated driver and/or assisting an obviously intoxicated driver in pumping gasoline into his vehicle."); Hale v. Ostrow, 166 S.W.3d 713, 719 (Tenn. 2005) (holding that a defendant property owner "owed a duty of care to the plaintiff to ensure that the sidewalk was not obstructed by overgrown bushes and was passable"); Biscan v. Brown, 160 S.W.3d 462 (Tenn. 2005) (holding that an "adult host had duty to exercise reasonable care to protect minor guests and third person from risks associated with drinking and driving"); Burse v. Hicks, No. W2007-02848-COA-R3-CV, 2008 WL 4414718 (Tenn. Ct. App. Sept. 30, 2008) (adult pedestrian does not owe duty to another pedestrian); Puckett v. Roberson, 183 S.W.3d 643 (Tenn. Ct. App. 2005) (holding that parents/homeowners did not owe a duty to a passenger killed in a single-car accident after he left a gathering of other high-school students at the parents/homeowners' residence and allowed an intoxicated female to drive his truck).

Recent Cases: 

Grogan v. Uggla, No. M2014-01961-COA-R3-CV, 2015 WL 5601995 (Tenn. Ct. App. Sept. 22, 2015) (no duty of care from home inspector to home purchaser’s subsequent third party invitee); Hayes v. Coopertown’s Mastersweep, Inc., No. W2014-00783-COA-R3-CV, 2015 WL 3487076 (Tenn. Ct. App. May 20, 2015) (no duty of care arose when defendant performed reasonable inspection of fire place and inspected for issues contracted for by plaintiff); Gregory v. Metropolitan Gov’t of Nashville and Davidson Co., No. M2011-02061-COA-R3-CV, 2012 WL 5306196 (Tenn. Ct. App. Oct. 26, 2012) (governmental entity does not have a duty to request assistance from another governmental entity even if it could result in a better response time and better result for a victim in a particular circumstance); King v. Flowmaster, Inc., No. W2010-00526-COA-R3-CV, 2011 WL 4446992 (Tenn. Ct. App. Sept. 27, 2011) (reversing trial court’s finding that defendant owed plaintiff no duty as a matter of law where defendant had attended and supported charity event in prior year and had knowledge of burnouts to be performed at event);  Cavanaugh v. Avalon Golf Properties, LLC, No. E2010-00046- COA-R3-CV, 2011 WL 662961 (Tenn. Ct. App. Feb. 24, 2011) (in claim for breach of fiduciary duty for negligent selection of contractor, court found no duty and no breach of applicable standard of care in selection of contractor); McBee v. Greer, No. E2009-01760-COA-R3-CV, 2010 WL 2290560 (Tenn. Ct. App. Jun.8, 2010) (reversing dismissal of negligence claim for failing to adequately warn plaintiff of violent tendencies of ex-cop who plaintiff served with divorce papers for defendant’s law firm explaining that court could not say plaintiff could not prove a set of facts to support negligence claim); Turner ex rel. Turner v. Steriltek, No. M2009-00325-COA-R3-CV, 2010 WL 744519 (Tenn. Ct. App. Mar. 3, 2010) (holding industry standard is not per se reasonable and compliance with standard may still be negligent); Green v. Titi, No. M2008-02788-COA-R3-CV, 2010 WL 98884 (Tenn. Ct. App. Jan. 11, 2010) (holding agreement for security services limited security company’s duty to night club patrons).

Giggers v. Memphis Housing Authority , No. 277 S.W.3d 359 (Tenn. 2009) (reversing summary judgment in premises liability case for criminal acts of third party finding the potential for violence in housing project was reasonably foreseeable and the gravity of harm outweighed the burden on defendant to take reasonable protective measures) (Holder, J., dissenting) (finding foreseeability should be excluded from the legal analysis as to whether a duty exists and left to the trier-of-fact in determining whether a defendant actually breached a duty and caused foreseeable injury); Downs ex rel. Downs v. Bush, 263 S.W.3d 812 (Tenn. 2008) (reversing summary judgment finding genuine issue of material fact as to whether defendants "put" decedent in bed of truck so as to give rise to a duty of care); Satterfield v. Breeding Insulation Co., 266 S.W.3d 347 (Tenn. 2008) (holding employer of employees exposed to asbestos has duty to act with due care to protect employees' households from secondary exposure to asbestos); Graco Children's Products, Inc. v. Shelter Mutual Insurance Company, Inc., No. W2008-01915-COA-R3-CV, 2009 WL 1392574 (Tenn. Ct. App. Jun. 23, 2009) (affirming summary judgment for insurer finding no duty to preserve vehicle after wreck); Piana v. Old Town of Jackson, Inc., No. W2007-02832-COA-R3-CV, 2009 WL 302273 (Tenn. Ct. App. Feb. 6, 2009) (affirming summary judgment for one defendant finding that defendant did not have duty to plaintiff in premises liability case where defendant did not own property and finding defendant did not undertake a duty under a maintenance agreement, but finding co-defendant did have a duty to plaintiff arising out of management agreement for property and finding plaintiff presented sufficient evidence to submit to jury issues of whether there existed a dangerous condition and whether co-defendant had notice of the condition); Burgess v. Kone, Inc., No. M2007-02529-COA-R3-CV, 2008 WL 2796409 (Tenn. Ct. App. Jul. 18, 2008) (finding no legal duty on the part of an independent contractor to protect state maintenance worker from injury); Ward v. City of Lebanon, No. M2006-02520-COA-R3-CV, 2008 WL 1850864 (Tenn. Ct. App. Apr. 25, 2008) (reversing trial court judgment finding part of the jury charge on duty was erroneous); G arcia v. Norfolk Southern Ry. Co., No. E2006-02674-COA-R3-CV, 2008 WL 481897 (Tenn. Ct. App. Feb. 22, 2008) perm. appeal denied (Aug. 25, 2008) (holding no duty on part of railroad company to warn where the presence of fuel in a fuel tank was common to that species of property such that it would be difficult for someone to conclude that anyone had superior knowledge of the continued presence of fuel in the tank); Adams v. Hendersonville Hospital Corp., No. M2006-01068-COA-R3-CV, 2007 WL 1462245 (Tenn. Ct. App. May 18, 2007) perm. appeal denied (Oct. 22, 2007) (holding jury instruction about foresight was error because the standard by which the duty of the defendant is measured is foreseeability, not foresight that envisions foreknowledge).

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.

To order a copy of the book, visit www.dayontortsbook.com. John also blogs regularly on key issues for tort lawyers. To subscribe to the Day on Torts blog, visit www.dayontorts.com.

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