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§25.3 Duty Arising Because of Special Relationship

The Case:  Biscan v. Brown, 160 S.W.3d 462 (Tenn. 2005).


The Basic Facts:  Plaintiff was injured in a car wreck after a party at defendant Worley’s house.  Plaintiff was a minor and was under the influence of alcohol.  She sued the driver of the car (Brown) and Worley. 


The Bottom Line:


  • “The general duty of care does not include an affirmative duty to act for the protection of another, however, ‘unless the defendant ‘stands in some special relationship to either the person who is the source of the danger, or to the person who is foreseeably at risk from the danger.’’  Turner, 957 S.W.2d at 818 (citing Bradshaw, 854 S.W.2d at 871); see also [Restatement (Second) of Torts § 315 (1965)] (hereinafter “[Restatement]”).  The special relationship doctrine carves out an exception to the general rule that there is no duty to act for the protection of a third party.  Bradshaw, 854 S.W.2d at 871; see also [Restatement] § 315.  In other words, the doctrine recognizes that ‘‘certain socially recognized relations exist which constitute the basis for such legal duty.’’  Bradshaw, 854 S.W.2d at 871 (quoting [Fowler V. Harper & Posey M. Kime, The Duty to Control the Conduct of Another, 43 Yale L.J. 886, 887 (1934)]).FN4


FN4  The [Restatement] envisions that such ‘socially recognized relations’ may include parent and child, employer and employee, and innkeeper and guest.  See [Restatement] §§ 314-15.  This list, published forty years ago, is illustrative, not exclusive.”


160 S.W.3d at 478-79.


  • “We have recognized that because ‘the imposition of a legal duty reflects society’s contemporary policies and social requirements,’ the concept of 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.’’  Bradshaw, 854 S.W.2d at 870 (quoting [W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 53 at 358 (5th ed. 1984)]).  Thus, in determining whether a defendant has a relationship to the plaintiff such that she is entitled to protection, we will weigh public policy considerations, which ‘are crucial in determining whether a duty of care existed in a particular case.’  Burroughs v. Magee, 118 S.W.3d 323, 329 (Tenn. 2003) (citing Bain v. Wells, 936 S.W.2d 618, 625 (Tenn. 1997), and Bradshaw, 854 S.W.2d at 870).”  Id. at 479.


  • “In deciding whether a duty was owed to act for the protection of a third party, we will also consider whether the plaintiff’s injuries and the manner in which they occurred were reasonably foreseeable.  Burroughs, 118 S.W.3d at 329.  In Bradshaw, for example, we concluded that a physician owes a duty to the immediate family members of a patient to warn them of possible exposure to the source of the patient’s illness, even in the absence of a physician-patient relationship with the immediate members of the family.  854 S.W.2d at 872.  Our holding rested on the fact that it was highly foreseeable that the patient’s wife would also contract the disease which killed the patient.  Id.  Similarly, in Burroughs, we held that a physician owed a duty to a third party as a member of the ‘motoring public’ to warn his patient that medication could impair the patient’s driving ability because the patient’s medical history and the effects of medication made the third party’s injury foreseeable.  118 S.W.3d at 332.  In Estate of Amos v. Vanderbilt Univ., 62 S.W.3d 133, 138 (Tenn. 2001), this Court held that the defendant hospital owed a duty to the patient’s husband and to the general public to inform the patient that she had HIV because it was foreseeable that identifiable third parties would be at risk for exposure.  In contrast, in Pittman v. Upjohn Co., 890 S.W.2d 425, 433 (Tenn. 1994), we held that the defendant doctor, pharmacy, and pharmaceutical company had no duty to a third party plaintiff to warn of the risk to others from the patient’s medication because it was not foreseeable that the third party would mistake the medication for aspirin.”  Id. at 479.


  • “This emphasis on foreseeability in third-party cases dovetails with the balancing test we generally apply in considering whether a defendant owed a duty of care to a particular plaintiff.  Specifically, we consider:


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 alternative conduct.


McCall, 913 S.W.2d at 153; see also Burroughs, 118 S.W.3d at 329; Staples v. CBL & Assocs., Inc., 15 S.W.3d 83 (Tenn. 2000); Coln, 966 S.W.2d at 39; McClung v. Delta Square Ltd. P’ship, 937 S.W.2d 891 (Tenn. 1996).”  Id. at 479-80.


  • “The balancing test attempts to align the imposition of a duty with ‘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.’  Bradshaw, 854 S.W.2d at 870 (citing [William L. Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 15 (1953)], and Kirk v. Reese Hosp. & Med. Ctr., 513 N.E.2d 387, 396-97 (Ill. 1987)).  Although all the balancing considerations are important, the foreseeability prong is paramount because ‘[f]oreseeability is the test of negligence.’  Doe, 845 S.W.2d at 178.  In sum, in cases such as this one where we must determine whether a defendant owed an affirmative duty to act for the protection of another, we will consider whether public policy and foreseeability favor recognizing a special relationship, and we will also consider whether the remaining factors in the balancing test favor imposition of a legal duty.”  Id. at 480.


  • “To determine whether Worley owed a duty to protect Jennifer from the harm caused by Brown, a third party, we must first inquire whether Worley stood in some special relationship to Jennifer or to Brown.  The record reflects that Jennifer was not specifically invited to the party, but the Worleys permitted her and all of the other uninvited guests to stay at the party.  Worley was aware that minors who were not specifically invited to the party might attend.  Thus, whatever duty, if any, was owed to any of the minor guests was owed to all of them.”  Id.


  • “We begin by considering whether public policy favors a determination that the adult host Worley had a sufficient relationship to all of his minor guests, including Jennifer and Brown, such that he had a duty of care to each of them.”  Id.


  • “First, the legislature has made the public policy determination that minors are generally prohibited from consuming alcohol.  See, e.g., Tenn. Code Ann. § 57-4-203(b) (2002) (making it illegal for minors to purchase alcohol and for any person to sell or furnish a minor with alcohol); Tenn. Code Ann. § 57-5-301(e)(1) (2002) (making it illegal for minors to possess beer ‘for any purpose’).  It is also the public policy of this state to prohibit persons under the influence of alcohol from driving.  See, e.g., Tenn. Code Ann. §§ 55-10-401 to -416 (2002).  In addition to these unambiguous legislative pronouncements, public policy considerations favor imposing a duty to act for the protection of minors where such a duty might be absent when dealing with adults.  We have long recognized that, because of their immaturity and inexperience, a duty may exist towards minors where it might not exist towards adults.  See Townsley v. Yellow Cab Co., 237 S.W. 58 (Tenn. 1922); see also Hawkins County v. Davis, 391 S.W.2d 658 (Tenn. 1965); Gritzner v. Michael R., 598 N.W.2d 282, 288 (Wis. Ct. App. 1999) (‘it [is] self-evident that an adult who voluntarily takes on the supervision, custody or control, even on a temporary basis, of a visiting child . . . stands in a special relationship to such child . . .’).  In sum, public policy considerations clearly favor finding that Worley had a special relationship to his minor guests such that he had a duty to ensure their safety, as well as to prevent them from driving while intoxicated.”  Id. at 480-81.


  • “Next we consider whether the foreseeability of Jennifer’s injuries and the manner in which she suffered them supports finding a special relationship.”  Id. at 481.


  • “Worley himself recognized that it was entirely foreseeable that guests would become intoxicated and drive.  As Worley stated in his deposition:


I was concerned about if there was drinking, you know, that there would be the drinking and driving issue.  I was worried about that happening.  And so based upon that conversation and based upon my past experiences with the teenagers, I decided that the best thing – the safest thing I could do would be to ask the kids to spend the night so that whether or not they drank they would not then go off driving.”




  • “As it was foreseeable that guests would drink and drive, it was also entirely foreseeable that guests would ride with drivers who had been drinking.  We conclude that the foreseeability factor also supports finding that Worley had a special relationship to his minor guests.”  Id.


  • “Worley points out that our appellate courts have required that, in order to find a special relationship as that term is defined by the [Restatement], the defendant must have the ‘means and ability’ to control the third party.  See Lett v. Collis Foods, Inc., 60 S.W.3d 95, 100 (Tenn. Ct. App. 2001); see also Newton v. Tinsley, 970 S.W.2d 490, 493 (Tenn. Ct. App. 1997).  Worley argues that he had neither the means nor the ability to control the guests.  He argues that he had no actual knowledge that either Brown or Jennifer attended the party and that had he attempted to prevent Brown from leaving, he could have exposed himself to liability for false imprisonment, assault, or battery.”  Id.


  • “We agree that in the total absence of the means or ability to control his guests Worley would not have a special relationship to them.  An adult host who is ‘in charge’ of a party held for minors, however, certainly has some ability to control the conduct of his guests.  Moreover, Worley’s argument that he did not have the absolute right to control his guests misapprehends the standard of care owed.  Worley did not have an absolute duty to control his guests; rather, he had an absolute duty to use ordinary care to control his guests and ensure their safety.  See Coln, 966 S.W.2d at 39 (‘‘Ordinary, or reasonable, care is to be estimated by the risk entailed through probable dangers attending to the particular situation and is to be commensurate with the risk of injury.’’ (quoting Doe, 845 S.W.2d at 178)); see also Frye v. Elkins, 122 S.W.2d 827, 829 (Tenn. Ct. App. 1938) (‘‘Ordinary care is relative, and not absolute, and, being relative, is dependent upon the circumstances of each particular case.’’).”  Id.


  • “Worley testified that at previous parties held for his teenage son, he had monitored guests and had ‘corralled’ all of the cars behind a fence to be able to control the departure of intoxicated guests.  Indeed, after this accident happened Worley took a similar action, ‘corralling’ all the minor guests’ cars to ensure no one else would leave.  In communicating his ‘rule’ to his daughter, it was clearly his intention to prevent guests from leaving if they had been drinking.  Worley’s after-the-fact arguments as to why it might have been difficult to execute the duty are unavailing, particularly in light of the fact that he did not attempt to enforce the rule.  Rather than continuing to patrol and monitor the guests, Worley fell asleep shortly before Brown and Jennifer left the party.  In this case, the exercise of reasonable care might have included, in addition to the steps Worley took at previous parties, contacting the parents of intoxicated guests or even contacting the police.  Reasonable care under the circumstances may not have included physically restraining his guests.”  Id. at 481-82.


  • “Having determined that Worley had a special relationship to Brown and Jennifer as minor guests, we examine the remaining factors in the balancing test to determine whether Worley owed them a duty of care.  First, the possible magnitude of the potential harm or injury was great, as Worley recognized and as Jennifer’s injuries demonstrate.  The remaining factors balance the importance, social value, and usefulness of the activity against the feasibility, safety, usefulness, costs, and burdens of alternative conduct.  Thus, we must balance the importance, social value, and usefulness of hosting a party with the intention of providing a “safe” place for teenagers to consume alcohol against the feasibility, safety, usefulness, costs and burdens of declining to host such a party.”  Id. at 482.


  • “Given that underage drinking is illegal, we have little difficulty in concluding that there is minimal social utility, if any, in providing a forum for teenagers to consume alcohol.  Worley argues that ‘kids that chose to drink would find a way to do so,’ and that he should not be penalized for permitting them to do what they would inevitably do regardless of his wishes.  We strongly disagree.  Our view is that even if that conduct were inevitable, it must not be condoned or encouraged.”  Id.


  • “Worley argues that this Court should hold that liability will only be imposed on a social host who either serves or furnishes alcohol to minor guests or who exercises affirmative conduct and control over the consumption of alcohol by minors.  Worley argues strenuously that it is bad policy to hold him liable for trying to ‘do the right thing,’ whereas if he had actually furnished alcohol to the minors, he would be shielded by Tennessee Code Annotated section 57-10-101.”  Id.


  • “We recognize, as did the Court of Appeals, the apparent tension between our holding that Worley owed a duty of care to protect his underage guests from harm and the legislative determination that one who furnishes alcohol cannot, as a matter of law, be a proximate cause of injury to a third person resulting from the consumption of alcohol.  The duty of care Worley owed to his guests, however, lies separate and apart from furnishing alcohol.  Because he knowingly permitted and facilitated the consumption of alcohol by minors, an illegal act, Worley had a duty to exercise reasonable care to prevent his guests from harming third persons or from befalling harm themselves.  Considering the facts in the light most favorable to the plaintiffs, we therefore affirm the trial court’s denial of Worley’s motion for summary judgment on this ground.”  Id.


Other Sources of Note:  Limbaugh v. Coffee Medical Center, 59 S.W.3d 73 (Tenn. 2001) (special relationship existed between patient and medical center to prevent assault by medical center employee).


Recent Cases:  Downs ex rel. Downs v. Bush, 263 S.W.3d 812 (Tenn. 2008) (declining to recognize special relationship based on defendant’s status as decedent’s best friend and roommate sufficient to give rise to a duty of care; declining to recognize special relationship based on defendant’s status as “designated driver” sufficient to give rise to a duty of care; declining to recognize special relationship based on defendant’s status as owner of vehicle sufficient to give rise to a duty of care); Bailey v. Grooms, No. E2008-01520-COA-R3-CV, 2009 WL 3460654 (Tenn. Ct. App. Oct. 28, 2009) (affirming summary judgment for defendant property owner finding that hosting an adult party did not create legal duty to prevent adult attendees from becoming intoxicated and injuring each other and finding no special relationship arose out of being social host, finding risk of injury from a guest firing a gun not reasonably foreseeable, finding no assumption of duty, and finding plaintiff statutorily prevented from showing causation by Tenn. Code Ann. § 57-10-101); Cunningham v. Jones, No. M2007-01112-COA-R3-CV, 2008 WL 695871 (Tenn. Ct. App. Mar. 14, 2008) (reversing summary judgment finding genuine issue of material fact as to whether doctor had duty to notify others that medical report was incorrect so that patient was not subsequently denied insurance coverage on basis of incorrect report); Garcia 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); Collins v. Arnold, No. M2004-02513-COA-R3-CV, 2007 WL 4146025 (Tenn. Ct. App. Nov. 17, 2007) perm. appeal denied (Apr. 14, 2008) (reversing jury verdict because jury was not instructed as to the conditions for liability under an assumed, rather than imposed, duty of care as set out in Section 324A of the [Restatement of Torts]).


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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.

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