§25.7 Helpless or Inattentive Plaintiffs

The Case: Downs ex rel. Downs v. Bush , 263 S.W.3d 812 (Tenn. 2008).

The Basic Facts: Minor out for a night for a night of drinking with friends. Plaintiff's decedent became very intoxicated. After Plaintiff's decedent died as a pedestrian as a result of being struck by two vehicles on a local interstate highway, his mother brought suit against his drinking companions for failing to provide for his safety.

The Bottom Line:

  • "The plaintiff insists that even if the defendants had no duty to act to prevent an unreasonable risk of harm, one or more of the exceptions to the 'no duty to act' rule apply. First, the plaintiff avers that section 324 of the [RESTATEMENT (SECOND) OF TORTS] applies to the defendants. This section provides:
    One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by (a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor's charge, or (b) the actor's discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when the actor took charge of him.
    [RESTATEMENT (SECOND) OF TORTS § 324]." 263 S.W.3d at 819.
  • "With respect to the 'helpless' requirement, the [Restatement] writers recognized that intoxication can render a person 'helpless.' See [RESTATEMENT (SECOND) OF TORTS § 324 cmt. b] (stating that this section applies 'where the actor takes charge of one who is ill, drunk, or made helpless by the act of a third person or a force of nature.') (emphasis added). Likewise, in Colville v. Liberty Mut. Ins. Co., the Appellate Court of Connecticut relied on section 324 and concluded that the plaintiff in that case was 'helpless' after consuming alcohol to the point of 'semi-consciousness.' 748 A.2d 875, 876 (Conn. App. Ct. 2000)." Id. at 822.
  • "With respect to the plaintiff's first affirmative duty argument, we conclude that whether Mr. Downs was 'helpless' and whether the defendants 'took charge of' him are genuine issues of material fact that must be resolved by the jury. If a jury finds that Mr. Downs' level of intoxication rendered him 'helpless' and that the defendants 'took charge of' him, then the defendants owed him a duty to exercise reasonable care in aiding or protecting him. Conversely, if the jury concludes that Mr. Downs was not 'helpless' or that none of the defendants 'took charge of' him, then section 324 of the [RESTATEMENT (SECOND) OF TORTS] has no application." Id. at 823.
  • "Here, the record contains ample evidence that Mr. Downs consumed alcohol throughout the night and that he was acting 'wild' and became ill. These facts support the conclusion that Mr. Downs was intoxicated. However, being intoxicated does not necessarily mean that he was 'helpless.' For example, the record also indicates that he was able to enter and exit both apartments and the truck's bed under his own strength. Thus, we conclude that whether Mr. Downs was 'helpless' is a genuine issue of material fact that must be resolved by the jury." Id.
  • "Regarding the question of whether the defendants 'took charge of' Mr. Downs, the record contains evidence that the defendants decided that Mr. Downs should ride in the bed of the truck, and there is evidence that at least Mr. Britt helped him into the bed. On the other hand, the record also indicates that Mr. Downs did not object to riding in the bed of the truck and that he climbed into it under his own strength. Thus, we conclude that whether the defendants 'took charge of' Mr. Downs is a genuine issue of material fact that must be resolved by the jury." Id.

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.

To schedule an appointment, contact us online or call us at 615-742-4880 or toll-free at 866-812-8787.



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.

Client Reviews
Everything was great. You guys are a great representative. I was satisfied with everything. Truly appreciate John Day and his hard-working staff.
★★★★★
We thought that you did an excellent job in representing us in our lawsuit. We would recommend you to anyone.
★★★★★
The Law Offices of John Day is, without a doubt, the best in Nashville! They treated me with the utmost respect and tended to my every need. No question went unanswered. I was always kept informed of every step in the process. I received phenomenal results; I couldn't ask for more. I would definitely hire the Law Offices of John Day again.
★★★★★
I would definitely recommend to anyone to hire John Day's law firm because everyone was helpful, made everything clear and got the job done. I am satisfied with how my case was handled.
★★★★★
It's been a long battle but this firm has been very efficient and has done a remarkable job for me! I highly recommend them to anyone needing legal assistance. Everyone has always been very kind and kept me informed of all actions promptly.
★★★★★
I had a great experience with the Law Offices of John Day. The staff was very accommodating, and my phone calls/emails were always responded to in a timely manner. They made the entire process very easy and stress-free for me, and I had confidence that my case was in good hands. I am very happy with the results, and I highly recommend!
★★★★★