§ 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:
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.
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).
Recent Cases:
Giggers v. Memphis Housing Authority , No. 277 S.W.3d 359 (Tenn. 2009) (reversing summary judgment in premises liability case for criminal acts of third party finding the potential for violence in housing project was reasonably foreseeable and the gravity of harm outweighed the burden on defendant to take reasonable protective measures) (Holder, J., dissenting) (finding foreseeability should be excluded from the legal analysis as to whether a duty exists and left to the trier-of-fact in determining whether a defendant actually breached a duty and caused foreseeable injury); Downs ex rel. Downs v. Bush, 263 S.W.3d 812 (Tenn. 2008) (reversing summary judgment finding genuine issue of material fact as to whether defendants "put" decedent in bed of truck so as to give rise to a duty of care); Satterfield v. Breeding Insulation Co., 266 S.W.3d 347 (Tenn. 2008) (holding employer of employees exposed to asbestos has duty to act with due care to protect employees' households from secondary exposure to asbestos); Graco Children's Products, Inc. v. Shelter Mutual Insurance Company, Inc., No. W2008-01915-COA-R3-CV, 2009 WL 1392574 (Tenn. Ct. App. Jun. 23, 2009) (affirming summary judgment for insurer finding no duty to preserve vehicle after wreck); Piana v. Old Town of Jackson, Inc., No. W2007-02832-COA-R3-CV, 2009 WL 302273 (Tenn. Ct. App. Feb. 6, 2009) (affirming summary judgment for one defendant finding that defendant did not have duty to plaintiff in premises liability case where defendant did not own property and finding defendant did not undertake a duty under a maintenance agreement, but finding co-defendant did have a duty to plaintiff arising out of management agreement for property and finding plaintiff presented sufficient evidence to submit to jury issues of whether there existed a dangerous condition and whether co-defendant had notice of the condition); Burgess v. Kone, Inc., No. M2007-02529-COA-R3-CV, 2008 WL 2796409 (Tenn. Ct. App. Jul. 18, 2008) (finding no legal duty on the part of an independent contractor to protect state maintenance worker from injury); Ward v. City of Lebanon, No. M2006-02520-COA-R3-CV, 2008 WL 1850864 (Tenn. Ct. App. Apr. 25, 2008) (reversing trial court judgment finding part of the jury charge on duty was erroneous); G arcia v. Norfolk Southern Ry. Co., No. E2006-02674-COA-R3-CV, 2008 WL 481897 (Tenn. Ct. App. Feb. 22, 2008) perm. appeal denied (Aug. 25, 2008) (holding no duty on part of railroad company to warn where the presence of fuel in a fuel tank was common to that species of property such that it would be difficult for someone to conclude that anyone had superior knowledge of the continued presence of fuel in the tank); Adams v. Hendersonville Hospital Corp., No. M2006-01068-COA-R3-CV, 2007 WL 1462245 (Tenn. Ct. App. May 18, 2007) perm. appeal denied (Oct. 22, 2007) (holding jury instruction about foresight was error because the standard by which the duty of the defendant is measured is foreseeability, not foresight that envisions foreknowledge).