Chapter 45: Malicious Harassment

§45.1 Generally

The Case: Levy v. Franks , 159 S.W.3d 66 (Tenn. Ct. App. 2004).

The Basic Facts: A disagreement between neighbors turned into litigation.

The Bottom Line:

• "The Levys first argue that the trial court erred in dismissing their malicious harassment claim based on the malicious harassment statute, section 4-21-701 of the Tennessee Code Annotated. The Levys alleged that the statute affords them a remedy because the Franks intentionally attempted to prevent them from appearing at the planning commission meeting, thus intimidating them from exercising their constitutional right to free speech. The trial court dismissed the malicious harassment claim at the conclusion of the Levys' proof, because it found that the Franks had no intent to harass the Levys based on the Levys' race, color, religion, ancestry or national origin. Rather, the trial court concluded, the Franks' actions were motivated by what the Franks perceived that the Levys did to them. The Levys contend that section 4-21-701 of the Tennessee Code Annotated should not be interpreted to require harassment based on the victim's race, color, religion, ancestry or national origin." 159 S.W.3d at 80.
• "The malicious harassment statute, Tennessee Code Annotated, section 4-21-701, provides: '(a) There is hereby created a civil cause of action for malicious harassment. (b) A person may be liable to the victim of malicious harassment for both special and general damages, including, but not limited to, damages for emotional distress, reasonable attorney's fees and costs, and punitive damages.' Tenn. Code Ann. § 4-21-701 (1998). The elements of the tort created by this statute were outlined by the Tennessee Supreme Court in Washington v. Robertson County:

  [A] claim of malicious harassment requires not only that a person acted maliciously, i.e., ill-will, hatred or spite, but also that a person unlawfully intimidated another from the free exercise or enjoyment of a constitutional right by injuring or threatening to injure or coercing another person or by damaging, destroying or defacing any real or personal property of another person.

  Washington v. Robertson County, 29 S.W.3d 466, 473 (Tenn. 2000)." Id.
• "Washington made it clear that, in order to establish a claim under section 4-21-701, the victim must show that the perpetrator intentionally intimidated the victim from the free exercise of a constitutional right." Id.
• "Washington, however, did not directly address whether malicious harassment under section 4-21-701 must be motivated by the victim's race, color, religion, ancestry or national origin, as was held by the trial court below. That issue was addressed by this Court in Surber v. Cannon, [No. M1998-00928-COA-R3-CV, 2001 WL 120735 (Tenn. Ct. App. Feb. 14, 2001)]. In Surber, the minor plaintiff was subjected on two occasions to the defendant's lewd and exhibitionist behavior while walking her dog in front of her home. Id. at *1-*2. Surber contended that the defendant's malicious behavior deprived her of her constitutional right to privacy, and was directed at her because of her gender. Id. at *5. After reviewing the short but convoluted legislative history of section 4-21-701, as well as the Tennessee Supreme Court's analysis of the statute in Washington v. Robertson County, the Surber court denied Surber's claim of malicious harassment for two alternative reasons. As the first reason, the Surber court held: 'There is simply no evidence in this record that [defendant]'s actions were motivated by any intent to intimidate Ms. Surber . . . . [or] to prevent her from exercising any civil right or as retribution for the exercise of any such right by her.' Id. at *6. As an alternative basis for its holding, the Surber court stated:

  In addition, there is no evidence that [the defendant]'s actions were directed toward Ms. Surber because of her 'race, color, ancestry, religion or national origin,' and she does not claim they were. Rather, she asserts a gender-based motivation . . . and argues that Tenn. Code Ann. § 4-21-701 should be read to include gender based harassment. Based on Washington, we cannot broaden the legislature's definition of malicious harassment beyond the elements of civil rights intimidation, as set out in [Tenn. Code Ann. § 39-17-309]. Having considered the plain language of § 309, we fail to see that its reach extends to gender based discrimination.

  Id. at *6. Thus, the Surber court concluded that, to be actionable under section 4-21-701, the harassment must be based on the victim's 'race, color, ancestry, religion or national origin.' Id." Id. at 80-81 (footnote omitted).
• "The Levys argue in this appeal that the alternative reason for the Surber court's holding is mere dicta and should be rejected. Even if it is considered dicta, we find it persuasive. The Surber court's holding is consistent with cases decided prior to Washington, in which section 4-21-701 has consistently been interpreted as requiring a protected class under 39-17-309. See Young v. State Farm Mut. Auto. Ins. Co., 868 F. Supp. 937, 942-43 (W.D. Tenn. 1994) (holding that plaintiff failed to state a claim for malicious harassment under section 4-21-701 because age is not enumerated in either 39-17-309 or its predecessor, 39-17-313); Parr v. Middle Tenn. State Univ., No. M1999-01442-COA-R3-CV, 1999 WL 1086451, at *4 (Tenn. Ct. App. Dec. 3, 1999) (permission to appeal denied May 15, 2000) (holding that plaintiff failed to state a claim under 4-21-701 because she alleged harassment on the basis of a disability, which is not enumerated in either 39-17-313 or 39-17-309); Vafaie v. Owens, No. 92C-1642, 1996 WL 502133, at *7 (Tenn. Ct. App. Sept. 6, 1996) (holding that plaintiff did not state a claim for malicious harassment because she did not allege the defendant intended to prevent her from exercising a constitutional right and because she did not allege the defendant was motivated by any of the enumerated factors of 39-17-309). In addition, the Tennessee Supreme Court declined to review Surber, which followed the Washington decision. Considering all of these circumstances, we agree with the reasoning of the trial court and affirm its dismissal of the claim for malicious harassment." Id. at 81.

Other Sources of Note: Oates v. Chattanooga Publishing Co. , 205 S.W. 3d 48 (Tenn. Ct. App. 2006) (alleged harassment based on disability not covered by statute).

Recent Cases: Safro v. Kennedy , No. E2006-01638-COA-R3-CV, 2007 WL 1215052 (Tenn. Ct. App. Apr. 25, 2007) (upholding dismissal of malicious harassment claim finding plaintiff failed to establish required element of intimidation from exercise or enjoyment of constitutional right).

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