§33.3 Imputing Negligence in Case Where Member of Association Sues Association
The Case: Fain v. O'Connell , 909 S.W.2d 790 (Tenn. 1995).
The Basic Facts: Woman fell in parking lot owned by Roman Catholic Church. Church maintained that she could not sue the church because she was a member of it.
The Bottom Line:
- "The traditional rationale for denying recovery against an unincorporated association by a member is the doctrine of imputed or transferred negligence. Calvary Baptist Church v. Joseph, 522 N.E.2d 371, 374 (Ind. 1988); Cf. John T. Hennis, Imputed Contributory Negligence, 26 Tenn. L. Rev. 531, 547-48 (1959). This Court, historically, has applied the rule that the negligence of those engaged in a joint enterprise or joint venture may be imputed to the other members, thereby barring a suit by a non-negligent member against the other members of the venture. See Cole v. Woods, 548 S.W.2d 640 (Tenn. 1977). The principle is explained by Prosser as follows:
The doctrine of vicarious responsibility in connection with joint enterprises rests upon an analogy to the law of partnership. In a partnership, there is a more or less permanent business arrangement, creating a mutual agency between the partners for the purpose of carrying on some general business, so that the acts of one are to be charged against another. A "joint enterprise" is something like a partnership, for a more limited period of time, and a more limited purpose. It is an undertaking to carry out a small number of acts or objectives, which is entered into by associates under such circumstances that all have an equal voice in directing the conduct of the enterprise. The law then considers that each is the agent or servant of the others, and that the act of any one within the scope of the enterprise is to be charged vicariously against the rest.909 S.W.2d at 792.
W. Page Keeton, et al., Prosser and Keeton on the Law of Torts, § 72, at p. 516-17 (5th ed. 1984)."
- "The defendant in this case, the diocese, asserts that it is immune from suit because 794 the plaintiff and all of the other members of the diocese are engaged in a joint enterprise to promote religious activities. The plaintiff responds that her suit is not precluded by the doctrine of imputed contributory negligence because she did not have an equal right to control the instrumentality that caused her injury." Id. at 794.
- "The Court has not heretofore considered the application of this rule in an action for negligence by a member of an unincorporated association against the association. However, principles implicit in the Court's prior decisions militate against extension of the doctrine of imputed negligence among joint enterprisers as a blanket defense to suits by members against unincorporated associations." Id.
- "Application of those principles to the facts and circumstances of this case compel the conclusion that the defendant is not a joint enterprise for the purposes of this suit. The total administrative structure of the diocese of Knoxville is not stated in the record. However, the record does show that each separate church of the diocese has a parish pastoral council. The immediate control of the church facilities, including the parking lot, was vested in St. Mary's parish council, a body elected by the membership of the parish, and its administrative staff. Apparently, each parish throughout the diocese, including St. Dominic's of which the plaintiff was a member, functioned in the same manner. There is no assertion that the plaintiff, as a member of St. Dominic's, had any responsibility for or any right of control over the maintenance of St. Mary's parish facilities. These facts do not establish a joint venture among the members of the diocese." Id.
- "Immunity from liability for negligence is disfavored in the law of this state and will not be granted without a compelling justification or statutory authority. See, e.g., Broadwell v. Holmes, 871 S.W.2d 471, 476 (Tenn. 1994) (allowing parental immunity only to the extent that the constitutional rights of the parent are implemented)." Id.
- "The Court's dramatic repudiation of imputed contributory negligence in Cole v. Woods, 548 S.W.2d at 650, anticipated the decision in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992), wherein this Court adopted the Tennessee doctrine of comparative fault, a system of allocating damages among the parties in a tort suit in proportion to the percentage of fault attributable to the respective parties. In that case, the Court held that as between a plaintiff and a defendant, the 'outmoded and unjust common law doctrine of contributory negligence' should be abandoned. Id. at 56. It follows that the doctrine of imputed contributory negligence among members of an unincorporated association, which is based on the legal form of the organization rather than the actual degree of fault of the member, should not be adopted by this Court." Id. at 794-5.