Personal Injury Law

Leading Tennessee Tort Cases - Duty - Generally

By John Day

This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Tennessee Tort Cases.  To order the book go here.

§ 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).

Full post as published by Day on Torts on March 02, 2011 (boomark / email).