§33.4 Joint Enterprise

The Case: Fain v. O'Connell , 909 S.W.2d 790 (Tenn. 1995).

The Basic Facts: Plaintiff sustained injuries in a church parking lot while attending a church-related function. Plaintiff subsequently brought suit against the bishop of the diocese, the legal owner of the property, seeking damages for the personal injuries she sustained in the fall.

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 37l, 374 (Ind. 1988); Cf. [John T. Hennis, Imputed Contributory Negligence, 26 Tenn. L. Rev. 53l, 547-48 (l959)]. 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.

  [W. Page Keeton, et al., Prosser and Keeton on the Law of Torts, § 72, at p. 516-17 (5th ed. l984)]." 909 S.W.2d at 792.
• "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. at 794.
• "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 794-95.

Recent Cases: Anderson v. U.S.A. Truck, Inc. , No. W2006-01967-COA-R3-CV, 2008 WL 4426810 (Tenn. Ct. App. Oct. 1, 2008) (holding any error by trial court in permitted jury to consider whether plaintiffs were involved in a joint enterprise was harmless given jury's apportionment of fault).