§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.