*1 Drowota, III, C.J., Frank F. concurred in BISCAN, Jennifer L. al. et part, in part, opinion. dissented and filed BROWN, Franklin H. et al. Tennessee,
Supreme Court of
at Nashville.
Oct. 2004 Session at Franklin.1
March argument (Supreme Advancing 1. Oral was heard in this case on S.C.A.L.E.S. Le- Court 8, 2004, Franklin, Students) October Williamson gal project. Education for Tennessee, County, part of this Court’s
OPINION ANDERSON, J., E. RILEY delivered court, opinion which JANICE M. HOLDER and WILLIAM M. BARKER, JJ., and ALLEN W. WALLACE, SP., J., joined: FRANK F. DROWOTA, III, C.J., filed a concurring dissenting opinion. granted this appeal determine whether an adult who hosts a minors and knows advance that alcohol will be consumed has or voluntarily duty assume a of care towards the minor guests. We hold that the defendant adult host had such a though of care even he did not furnish alcohol. We also hold that the trial court did not err hi *5 excluding regarding evidence the minor plaintiffs prior alcohol-related offenses prior experience and her with alcohol and that the trial court did not err determin- ing that the plaintiffs sister was not at fault pursuant as a matter of law to Ten- statutory nessee’s shield for furnishers of beverages. alcoholic The of Appeals Court affirmed the trial court in all respects. by affirm the result reached the Court Appeals separate grounds set forth herein.
Background Sowell, Nashville, Tennessee, Alan M. (“Jenni- plaintiff, The Jennifer Biscan Appellant, Franklin H. Brown. fer”),2 age severely injured was in a single-car accident automobile after leav- Hollins, Jr., Nashville, John R. Tennes- defendant, ing a party hosted Paul see, for the Paul Appellant, Worley. N. Worley (“Worley”), at his home William- Philip Elbert Bridgers, N. and W. David defendant, County, son Tennessee. The Nashville, Tennessee, Appellees, for the (“Brown”), Hughes age Franklin Brown Jennifer Biscan and Robert Biscan. drove the car which Jennifer was Evans, Nashville, Tennessee, accident, riding. Winston S. After the Brown’s blood- Curiae, .17%; for the Against Amicus Mothers alcohol content measured at was Drunk Driving. Jennifer’s was .032%. sister, clarity Because Jennifer Biscan’s Dana Bis- sake of we refer to each of them her can, figures heavily appeal, in this for the first name. Biscan, that his “rule” father, daughter beforehand her Robert his
Jennifer and anyone drinking was be that who against actions the driver would negligence filed night. required spend Worley. host The would be Brown and adult the guests that some of alleged operation Brown’s of The record reflects plaintiffs rule, many of the but the automobile while under the influence were aware Worley Although not. walked negligent negligent per alcohol and se. were was and was plaintiffs alleged Worley negli- patrolled around and brought guests of the and encour- aware some gently “permitted, condoned beer, attempt no to enforce consumption alcohol he made aged the unlawful minors,” guests alcohol special undertook a rule that who had consumed he party, stay overnight. protect minors Worley “negligently аnd that exercised Brown, Jennifer’s, longtime friend of negligently failed control or to exercise during par- before and consumed beer plaintiffs control” Brown. The also over the beer from ty. Brown some of obtained Worley negligent se. alleged per Dana, purchased illegally. who had Both the defendants Brown and guests and reim- Brown some other compar- raised as affirmative defenses the of the beer. bursed Dana for cost neg- ative fault of Jennifer Biscan and the Later, 11:30 p.m., and between 11:00 ligence negligence per se of Jennifer’s party together left Brown Jennifer sister, (“Dana”), twin Dana who Biscan The accident occurred Brown’s car. provided alcohol Brown. Defendant stop sign Brown failed to when see negli- also averred that Brown’s a guardrail. slammed into gence independent intervening act The record reflects that Jennifer sus- relieving liability; him of Brown averred *6 injuries. re- extremely tained serious She Worley comparatively negligent. that was nearly in for three weeks mained a coma presented The at evidence trial is sum- required hospitalization nearly for two and marized follows. as On October Much of the months after accident. Brown host- party and Jennifer attended in the accident damage brain she sustained Worley ed daughter defendant his diffi- permanent. continuing is Jennifer has Ashley’s birthday. eighteenth Brown and and culty memory, decision-mаking, with Ashley. Jennifer attended school functions, cognitive as well numerous other Ashley personally her and invited friends arm. limitations in the use of her left her party. members of school class trial, was jury At found that Brown school, at Ashley’s Other students includ- fault, fault, Worley at and Dana, 70% at was 15% ing Jennifer and her sister learned comparatively negligent. Jennifer was 15% party though and to it went even jury damages The set Jennifer’s then personally were not to the invited $8,954,810. Worley appealed Brown and father, Worley. party by Ashley byor her affirmed Appeals, to the Court of which party All the minors who came to the were in all respects. the trial court Brown stay. permitted to Worley sought permission appeal then at his home and Worley gave party to this Court. he only present. Although was the adult is- Worley granted review to address three party, did not alcohol at the serve First, many Brown and Wor- fully guests of the minor sues. defendants expected alcohol, pre- ley argue that the trial court erred bring and consume which is prior of ex- cisely excluding Jennifer’s happened. what instructed evidence periences injustice with alcohol and of al- evidence causes complain- ” juvenile cohol-related court citations while Eldridge Id. ing.’ (quoting v. Eldridge, admitting (Tenn.2001)). knowledge evidence Jennifer’s Second, the effects alcohol. both Evidence is relevant and therefore ad- argue defendants the trial court erred tendency if it “any missible has to make in granting plain- a directed verdict to the any the existence of fact that is of conse- liability instructing tiffs as to Dana’s quence to the determination of the action could that it fault to allocate probable probable more or less than it Dana because she immune from fault would without the evidence.” Tenn. R. under Code Tennessee Annotated section Evid. 401. Evidence that relevant un- (2002), 57-10-101 which insulates those 401 der Rule “if pro- its excluded who “furnish” alcoholic from lia- beverages substantially value is outweighed by bative bility injuries by persons caused who danger prejudice, of unfair confusion of Third, beverages. consume the defendant issues, misleading jury....” contends he neither nor owed R. Tenn. Evid. 403. assumed a of care to Jennifer and denying the trial court erred his A. Evidence Biscan’s Jennifer summary judgment motion for on that Experiences Prior Alcohol ground. argue The defendants Jennifer
We will each in turn. address issue negligent in choosing to ride with an intoxicated driver and that evidence Analysis relating knowledge of the ef Jennifer’s Evidentiary I. Rulings fects of alcohol was relevant. defense The trial court admitted evidence Jen- proffered the testimony of Jennifer’s class knowledge nifer’s of the effects of alcohol and friends mates that she consumed but testimony prior experi- excluded of her past. alcohol become intoxicated alcohol, ences with as well as evidence proffered testimony also that Jen Brown juvenile alcohol-related court citations. nifer had ridden with him three to five Worley argue Brown and exclud- past times when he had been intoxi ed evidence was relevant show cated. *7 comparatively Jennifer negligent in was Although the trial excluded that court accepting a with Jennifer ride Brown. evidence, it to permitted defense intro- argues regarding prior that evidence her performed duce the blood-alcohol on tests experience with alcohol is and irrelevant at the hospital Jennifer after accident. that law Tennessee bars introduction of Those tests showed a blood-alcohol content juvenile her court citations. of The trial also .032%. court admitted that by evidence Jennifer had been told Standard Review of in drinking her father and school that and the trial court’s deci We review harmful, was admitted testi- driving and sion to admit or exclude evidence gone out mony Jennifer had with abuse of standard. Mercer v. discretion groups of classmates who consumed alco- Univ., Inc., Vanderbilt 134 S.W.3d hol. (Tenn.2004). “A trial its court abuses agree argument when it ‘only applies discretion an incor We with the defendants’ standard, prior rect Jennifer’s legal regarding or reaches a decision that evidence was relevant. against logic reasoning experiences which is with alcohol decision to ride with accident: Jennifer’s of the factors to consider determin- One a minor the minor’s R. Evid. 403. ing the fault of is Brown. See Tenn. McLain, experience. Eaton Moreover, ad- given that the trial court (Tenn.1994). minor Because establishing mitted some evidence al- lawfully purchase or consume drinking driving knew Jennifer cohol, capacity, a minor has whether evidence of her blood dangerous, as well as knowledge experience appreciate to acci- night alcohol content on the of merely put of is in issue the effects alcohol its dent, was well within the trial court underage. being the fact of his or her excluding of Jenni- evidence discretion Table, Inc., See Brookins v. The Round with As personal experience alcohol. fer’s (Tenn.1981) (super- observed, Appeals “[b]ecause the Court Tennessee grounds seded other allo- negligent and found Jennifer - Code Annotated sections 57-10-101 her, obviously it found cated fault 102). sufficient to determine evidence [admitted] Accordingly, disagree with the Court known knew or should have that Jennifer Appeals’ prior conclusion that Jennifer’s was intoxicated when Hughes Brown alcohol relevant experience with was not him.” got in the car with she simply not ar- because the defendants did trial Accordingly, we conclude that the or that gue Jennifer intoxicated court did not its disсretion. abuse of alcohol at this consumption her had on her to ride bearing decision B. Evidence Juvenile Jennifer’s view, Brown. first- our Jennifer’s Citations Court experience proba- hand with alcohol was also The defendants and Brown of her ability tive to evaluate the risk exclude appeal the trial court’s decision to choosing night to ride with Brown on the juvenile three court of Jennifer’s evidence Indeed, thing accident. is one citations, finding one citation including ability impair be told that can alcohol one’s alco- possessed and consumed that she drive; it quite experi- another have suspending her driver’s license hol and impairment enced that firsthand. year. The other two citations were one rele Although the evidence was proffer. jury-out preserved vant, we trial further conclude that underlying facts contends that in excluding court did not err the evidence. juvenile criminal citations are three court evidence, A trial court's decision exclude important “arguably most evidence “even evidence which is considered history posses- of alcohol Biscan’s Jennifer relevant, a wide generally accorded [is] consumption.” sion and will degree only latitude and be over recog of Appeals As the Court showing *8 appeal turned on where there is a nized, however, juvenile adjudications are Saylor, of abuse of discretion.” State v. juvenile of generally inadmissible outside (Tenn.2003) 239, (citing 117 247 S.W.3d section Code Annotated court. Tennessee Co., Mut. Ins. 850 Cambridge Otis Fire 37-l-133(b) (2001)provides: (Tenn.1992)). 439, Had the 442 S.W.2d disposition of a child and evidence trial court admitted evidence of Jennifer’s juvenile in alcohol, hearing in court a a prior consumption of there was adduced in child may against not used such danger jury the confuse would a any in court than any proceeding other negligence conduct and earlier court, after juvenile before or night of on of this whether negligence the issue the 470 majority, disposition- in
reaching except providing plain- alcohol to a minor. The argue al after of a felo- proceedings conviction tiffs the defendants have ny for of purposes pre-sentence appellate the waived of this review issue. alternative, investigation report. and they argue that the statute person shields Dana as a who “furnished” Although rule has to interpreted this been alcohol to another. permit juvenile of adjudications admission purposes sentencing, criminal see Standard Review Stockton, 111, State v. 733 112-13 S.W.2d its terms (Tenn.Crim.App.1986), plain This Court reviews trial clearly bar the introduction of Jennifer’s grant to court’s decision a directed verdict See, juvenile e.g., record this civil case. novo, applying de the same standards as Planned Tenn. v. Parenthood Middle court. Tenn. trial Gaston v. Fаrmers (Tenn.2000) 1, Sundquist, S.W.3d 24 Co., (Tenn. 38 Mut. Ins. S.W.3d (“[Wjhen plain, 2003). the words a statute are affirm We will a directed verdict clear, unambiguous, and look to merely “only when evidence case is interpret plain language statute’s to its to susceptible but one conclusion.” Chil meaning.”). (Tenn. therefore affirm the trial Currie, We dress v. to of 2002) Eaton, 590). court’s decision exclude the evidence (citing juvenile adjudications. Jennifer’s strongest legitimate must “take the We favoring opponent view of the evidence II. Apportionment Fault motion,” accept and must all reason to Dana Biscan in favor the nonmoving able inferences argu- We next address the defendants’ Id. party. affirm the motion ment that court directing the trial erred in “only if, after ac assessing evidence plaintiffs standards, verdict for fault of to the to the cording foregoing [we] trial, Dana to plaintiffs Biscan. Prior minds determine[] could reasonable summary filed for seek- partial judgment not as to the be drawn differ conclusions ing apportionment preclude Id.; of fault to also Cecil v. from the evidence.” see (Tenn.1978). provid- illegally purchasing Hardin, Dana for minors, ing pursu- arguing beer to
ant A. to Tennessee Code Annotated sections Waiver -102, merely 57-10-101 one who fur- plaintiffs’ ar We first address the nishes alcohol another cannot be at gument pre that the failed to defendants fault. court denied plaintiffs’ The trial because this issue -for review serve motion, proof, but at the close of the trial object grant to the trial court’s of a did not court the issue granted reconsidered during a verdict. At trial collo directed jury directed verdict. The instructed instructions, the trial court quy apportion that it could not fault Dana that it intended submit informed counsel Biscan. jury, one two different forms verdict excluding one appeal, argue On the defendants Dana Biscan and including court had decided wheth applies only yet the statute commercial set- her. The Dana, Biscan, tings as to grant and thus cannot shield Dana er to the directed verdict individual, court allowed testimo illegally providing alcohol and because the *9 fault, wanted to Hughes They argue ny to minor Brown. as to Dana’s the court comport in would providing Dana alcohol to have a verdict negligent Dana’s fault. per Brown she se with' its final decision on negligent and that Worley discussion, timely pled. it first the cause was not During the defendant stated, “I affirmative defense attorney think she’s Dana’s fault as an pled Brown’s legally, answer, but not and I have to blame filed three months [Dana] in his amended I agree to the law.... would rather the When trial after the trial concluded. you rather than this direct the verdict 2001, 18, be- plaintiffs on began June fault, maybe she confusing maybe she’s motions for pending fore the two court isn’t, The honesty.” in all defendant Wor- granted trial court to The leave amend. ley’s nothing, the triаl attorney said and 2001, 19, day on June the both motions judge the directed verdict. entered began, ordering plain- the after trial whole, tiffs’ first and second amended however, amended as a reveals
The record Pursuant to Tennes- complaints raised well be filed. the defendants the issue 12.01, During verdict. the Worley before the directed see Rule of Procedure Civil instance, pretrial hearing, for the motions days then had to file answer to thirty trial argument court heard from counsel Worley complaint. the second amended Brown, Worley, and the on plaintiffs answer, due to a prepared an but clerical the issue of Dana’s fault under Tennessee error, file the answer until Worley did not - Code Annotated sections 57-10-101 and 11, Worley accompanied his October 2001. Worley for both Brown and Counsel attorneys of to all rec- filing with a letter argued apportioned that fault should be error, trial explaining ord to grant Dana. The court declined sum- motions to plaintiffs’ court denied the mary plaintiffs, indicating judgment to portions the amended strike answer. that it would take the issue advise- under presented proof ment and allow to be re- Worley’s plead failure pre- fault. Both lating attorneys to Dana’s Dana’s until after the conclusion of fault prove evidence to fault. sented Dana’s of this appeal trial is not fatal to his issue. Thus, by time the court granted Procedure 15.02 Tennessee Rule of Civil verdict, pre- the issue had been directed may be amended provides pleadings Additionally, both Brown and served. “[w]hen to conform to the evidence issues Worley challenged grant of the direct- by are pleadings not raised tried ed verdict in their motions for new trial. parties.” express or consent implied policy allowed general, may of the Ten Such amendment Id.; Appellate Rules of is to nessee Procedure see also judgment.” court “even after “ technicality in ‘disregard Am,., form in order Corp. George Bldg. v. Materials just, inexpensive (“ speedy, (Tenn.2001) deter ‘Amended every appellate proceeding mination of trial, filed before after pleadings may be ” may its be obtained.’ Bradshaw merits trial, long appeal so as the or even after (Tenn.1993) Daniel, v. jurisdiction long and so trial court has P. 1 (quoting R.App. Advisory Tenn. Com its discretion the trial court does not abuse ” Comments). Because the defen mission (quoting allowing the amendment.’ attorneys argued dants’ Dana’s fault Ctr., Inc., Med. Mary’s Harris St. judgment, opposition summary argued (Tenn.1987))). The rules trial, it it throughout included pleadings are relating to amendment trial, have suffi them motions for new liberal, trial discretion vesting broad issue for ciently preserved the review. appeal court. has waived prior failing plead this issue also claim that plaintiffs conclusion trial. appeal Dana’s fault on be- not raise *10 B. Liability Dana Biscаn cohol are injuries not at fault for inflicted of Furnishing Alcohol by an person. intoxicated
for Moving issue, to the merits of this we part The second of the statute carves next consider whether Tennessee Code out an exception to the part. pro- first It Annotated sections ap- 57-10-101 and -102 vides a seller of may alcohol be liable ply to Dana Biscan. to a party injuries third for if the seller sold alcohol to a minor or the seller sold statute, In interpreting a alcohol to an obviously person intoxicated begin with itself, the words of the statute and the sale proximate was a cause3 of the applying “ordinary their plain mean injuries by suffered party: the third ing.” Bain, Blankenship v. Estate (Tenn.1999). Notwithstanding The first provisions § of 57- section of the statute provides: 10-101, no judge jury or may pronounce a judgment
The general assembly awarding damages to or hereby finds declares that behalf of any party who consumption any has suffered personal alcoholic beverage injury or beer or against any rather than death furnishing any person alcoholic beverage who has sold alcoholic bever- or beer proximate is the inju- age beer, cause of or unless such of twelve ries upon (12) inflicted by another an intoxi- persons has first ascertained be- person. cated yond a reasonable doubt that the sale person such of the alcoholic (2002) bеverage or (“sec- § Tenn.Code Ann. 57-10-101 101”). beer was proximate cause of tion The effect of section 101 is to personal injury or death impossible make it sustained and for who one has been injured person: such person intoxicated to state a claim negligence against person or (1) Sold beverage the alcoholic or entity who furnished the alcoholic bever- person beer to a known be under the age or beer removes, because the statute (21) age twenty-one years and such law, as a matter required element of person personal injury caused the or See, legal causation. e.g., Turner v. Jor- death as the direct result of the con- dan, (Tenn.1997) (a 957 S.W.2d sumption of beverage the alcoholic or claim negligence requires sold; beer so or care owed the defendant to plaintiff; (2) beverage Sold the alcoholic or a breach duty; loss; of that an injury or obviously person beer to an intoxicated fact; causation in legal, proximate, or person personal and such caused the causation). words, In other there can be injury or as a result of death direct no cause of action resting allegation on the consumption beverage of the alcoholic or person that one “furnished” alcohol to an- beer so sold. other impossible because it is prove (2002) (“sec- § Tenn.Cоde Ann. 57-10-102 proximate cause. The statute does 102”). tion merely provide immunity from suit where one has another; furnished alcohol agree rath- We court and with the trial er, the statute legislative constitutes the Appeals plain the Court of that the lan- determination that persons who guage furnish al- precludes of section 101 allocation of although 3. We note that injuries section damages plaintiff. 57-10-101 See cause,” proximate uses the term “the Balentine, our McIntyre v. recognize decisions that there be more (Tenn. 1992) added). (emphases proximate than one who is “a cause” of
473
beer,
clearly
certainly
it
have cho
Dana Biscan.
101
or
would most
fault to
Section
alcohol or
over the word “fur
furnishing
states that
sen the word “sale”
injuries
proximate
nish,”
beer
not a
cause of
102.
is
as did
section
More-
person.
an intoxicated
inflicted
Moreover,
of Ap
as the Court
over,
only exceptions
are
to section 101
discussed,
legislative history of
peals
circum-
for sales of alcohol under
stat
101 and 102 reveals
sections
stances set forth
section 102.
codify the common-
was intended to
ute
explained
we first
As
when
an
rule that
individual who furnishes
law
statute,
had occasion to
this
interpret
for
alcohol to another is not liable
“
plain
the words of a
are
‘[w]hen
statute
resulting
the other’s intoxi
damages
from
unambiguous, the
is that
assumption
cation,
damagеs
are foresee
even
those
it wrote and
legislature intended what
See,
Cecil,
e.g.,
at 271.
able.
lan
pertinent
meant what it said. The
history
Thus, although
legislative
re
applied
any forced
guage must be
without
over the
flects much debate and concern
im
extending
or
construction
its
subtle
to which sellers of alcoholic bever
extent
”
Inc.,
port.’ Worley v.
919
Weigels,
covered,
and beers
ages
should
589,
(Tenn.1996) (quoting
593
S.W.2d
starting point was that the mere furnish
Co.,
Henry
Siegel
v.
I.
834
McClain
alcohol,
gratuitously
for
ing of
whether
(Tenn.1992) (alterations
295, 296
liability.
for
gain, is not a basis
commercial
omitted)). The clear
the stat
language of
at
Worley Weigels, 919 S.W.2d
593-
See
ute
only
one
that the
admits
conclusion:
94.
legislature
persons
intended
shield
such
argues
Brown
that Dana Bis-
Defendant
as Dana who “furnish” alcohol in a social
not be
section
protected
can should
setting.
she was not a social host and
because
Although
argue
the defendants
money
she
from
oth-
because
collected
strenuously that the statute is intended to
cost of the
er minors
cover the
beer.
apply only to
shop”
traditional “dram
de
101, however,
nothing
in section
There
fendants, i.e.,
sellers,
ar
commercial
their
limiting
scope
its
who hosts a social
to one
gument turns the statute on its head. Sec
Cecil,
example, passen-
function.
101,
first,
tion
comes
which
sets forth the
ger furnished alcohol to a driver. The
rule;
general
section
comes
which
driver became intoxicated and struck and
second,
exceptions ap
creates two narrow
bicyclist.
that the pas-
killed a
We held
plicable only to
specific
sellers. The
ex
senger was not hable under the common-
however,
ceptions
rule,
general
must
There,
law rule.
their
confined to
terms and cannot be
here,
any-
the defendant did not “host”
limit
read to somehow
the broad rule stat
thing.
ed
rule
general
in section 101.
“Where
statute,
that the
Similarly,
has been established
with ex
the mere fact
other
ceptions,
for the beer
the court will not curtail the for minors reimbursed Dana
she
by implication.”
mer nor add to the
for them is not sufficient
purchased
latter
Nashville,
her a seller whom section
City
Burns v.
132 Tenn.
make
(1915).
applies.
did not “sell” the
178 S.W.
Section
the statute
She
minors;
merely per-
the “furnish
to the other
she
applies without limitation to
beer
(albeit
errand)
illegal
ing”
alcoholic
Had
an errand
an
beverages
or beer.
formed
See,
ap
e.g.,
101 to
their behalf.
Childress v.
legislature intended section
(Mo.1987)
Sams,
ply
beverages
(holding
only to the sale
alcoholic
In we hold that Dana’s conduct in furnishing beer to the defendant argues Brown Dissent that our decision proximately did not cause Jennifer goal Bis- undermines the of our comparative injuries system: can’s explicit achieving under the fault by terms of fairness linking section liability 101. Dana with fault. contrary, did not sell alcohol to On the our 102, Brown within decision meaning entirely is section consistent with that goal. 57-10-101, so the exceptions enacting contained in section part do apply. Assembly General public policy Because the made the statute mandates determination -that persons the conclusion within the pur- that Dana was not a proxi- view of the statute are not at injuries, mate cause of fault for Jennifer’s the trial injuries resulting from court another’s intoxi- was correct in directing a verdict. cation. It plainly would be cannot, inconsistent law, Since Dana aas matter of be principles with the comparative аt fault fault to injuries, for Jennifer’s it would is, apportion law, fault to one by who have been error appor- to allow the without fault. tion fault to her. Moreover, we should defer to the
We note that this result would be legislature’s policy decision to eliminate protected different Dana were by a stat fault persons covered section 57- ute making her immune from suit. Under 10-101 irrespective of that decision’s effect our system fault, of comparative a jury on our comparative fault scheme. Al may apportion fault to an immune though it the province is of this Court to notwithstanding party’s immunity from prescribe rules for practice procedure liability. Carroll v. Whitney, 29 S.W.3d courts, in the state’s where a decision of (Tenn.2000). 14, 19 We have also held legislature chiefly by public pol driven that a jury may apportion persons fault to icy infringes power concerns on that immune,” “effectively who are such as generally judgment will defer to the protected by repose. those a statute of See, legislature. e.g., Martin v. Lear (Tenn. Blake, Dotson v. 29 S.W.3d Corp., (Tenn.2002); 631-32 2000). However, in enacting Tennessee also, § e.g., see Ann. Tenn.Code 55-9-604 Code legisla Annotated section (2004) (excluding from most civil actions ture did persons not make or entities who party’s evidence of a failure to wear a suit; rather, furnish alcohol immune from seatbelt). legislature determined that furnishing proximate alcohol is not a injuries cause of Additionally, we believe the Dissent Thus, inflicted an intoxicated person. broadly reads Dotson more than the lan- provision merely effect of the is not guage of that opinion permits. The Dis- action, restrict remedy for a cause of argues rejected sent the no- Dotson (Tenn.1996), Co., Sny- only to may apportioned that fault be tion GmbH, protected nonparty tortfeasor who der LTG Lufttechnische (as opposed (Tenn.1997), employers to some immunity statute shield). Although it statutory type of other fault under statutorily are without who apportioned fault held that in- laws cannot compensation workers’ im- “effectively who are immune or those Dis- fault. As the apportioning cluded liability, was silent mune” from Dotson out, compensa- in the workers’ points sent ap- liability may be the issue of whether here, has arena, legislature tion statutorily without to one who is portioned *13 policy rea- “already that determined Moreover, argues the Dissent fault proxi- be the employer sons an wheth- result is the same because the end mate, employee’s cause of an legal, or immunity stat- protected Dana er is v. injuries.” See also Curtis work-related fault, removing or a statute ute Space, 155 S.W.3d Capital Modular G.E. and Dotson simply follow Carroll should (Tenn.2005) 877, the is- (“Simply put, 884 attributed to her. fault to be permit and in a picture fault never enters the sue of argument puts the cart before This case.”). Similarly, compensation workers’ at ignores question the central horse and fault “never enters the the issue of because issue, jury namely, whether or not the to an- furnishes alcohol picture” when one permitted, at the intermediate should be 57-10- of section purview other within the prior fault to the as- step apportioning of 101, precludes the allocation that section to one liability, assign sessment of fault fault to Dana Biscan. statutorily without fault. As we who is ques- to that explained, have the answer
tion is no. Per Se Negligence Dana’s C. Finally, argues Dissent this argue that Finally, the defendants muddy comparative the area of case will as to directing a verdict trial court erred juries and by requiring fault courts negligent fault Dana was Dana’s because parties make difficult distinctions between Brown, a alcohol to per providing se parties immune from and who who are suit An- minor, of Tennessee Code in violation However, statutorily fault. are without 39-15-404(a)(2) (2003) and notated sections way in no creates an unwork our decision 57-3-412(a)(4) (2002). These statutes rule, applies only to stat able because minor furnish alcohol to a illegal make it fault, than to utes that eliminate rather agree with any circumstances. We under liability. merely eliminate statutes Ap- with the Court plaintiffs § Ann. 50-6- Compare, e.g., Tenn.Code allegation negli- peals because 103(a) (1999) (“Every and em- employer on the conduct per se is founded gence subject Compensa- ployee Workers’ Brown, alcohol to defendant furnishing shall, respectively, pay and ac- tion Law per se as a negligent Dana cannot be regard ... compensation without cept Code to Tennessee pursuant matter of law ....”) §Ann. 9-8- with Tenn.Code fault 57-10-101. Annotated section 307(h) (1999) (“State employ- officers liability from absolutely immune ees are of a statute Although violation scope
for acts omissions within se, the negligence per violation constitutes office or em- employee’s the officer’s or falling below only of conduct ....”) added). is evidence Addi- (emphases ployment v. of care. Cook standard the reasonable with our tionally, our decision is consistent Inc., Rivergate, Spinnaker’s Ridings Ralph M. Parsons decisions 934, (Tenn.1994); McIntyre see also v. be found to at fault for Jennifer Bis- Balentine, (Tenn.1992). injuries. Similarly, can’s she cannot be of a Violation statute does not establish theory found fault under a of negligence Thus, se, proximate element of cause. “a per because the required element of may not base its per verdict on se causation legislatively th[e] has been removed. negligence unless it affirmatively appears The decision of the trial court is affirmed. statutory proxi- violation was a III. Worley’s Motion injury mate cause of the for which recov- Summary Judgment ery sought.” McIntyre, 833 S.W.2d at Brookins, (citing 624 S.W.2d at Finally, Worley’s argument we address Charley, Barr v. 215 Tenn. 387 S.W.2d that the Appeals Court of erred in affirm- (1964)). 614, 617 Because the defendants ing the trial court’s denial of his motion for assert negligence per Dana’s se is summary judgment. Worley argues that furnishing alcohol, based on the conduct of legally-recognized he owed no duty to Jen- and because legisla- that conduct has been serve, nifer Biscan because he did not *14 tively proximate determined not to be a provide, encourage, or assist the under- injuries, cause of Jennifer’s Dana cannot age consumption of alcohol. argues He on a theory negligence per liable se. injustice that it would an to hold him explained As we in Worley Weigels, injuries liable for Jennifer’s from resulting n the enactment of [w]ith Code consumption par- [Tennessee Brown’s at the alcohol -102], §§ because, Annotated 57-10-101 ty and actually had he furnished the legislature Brown, made a definite distinction alcohol to Tennessee Code Anno- liability between the basis for civil him tated section 57-10-101 would shield liability the basis for criminal incident to from fault. argues He also that even he beverages. care, the sale of alcoholic duty These did assume he abandoned statutes, rather than imposed duty. the duties that statutes, by criminal determine the civil plaintiffs The advance three theories for [defendant], liability of the First, imрosition duty. they of a argue added). 919 S.W.2d at (emphasis “The Worley owed a duty common-law legislature ... is to know of its presumed Second, care to they Jennifer Biscan. ar- enactments and the state of the law.” gue Worley that even if did not owe this Robinson v. LeCorps, 83 S.W.3d law, voluntarily under the common he (Tenn.2002). Although may Dana be crim- Finally, plaintiffs argue assumed it. inally furnishing liable for alcohol to Worley negligent per se. willWe Brown, liability precluded by civil is sec- argument consider each turn. tion 101. Standard Review sum, although we hold that the defen-
dants appeal Summary judgment appro have waived of the trial is grant court’s priate party a directed verdict as to where a establishes there fault, Dana Biscan’s affirm trial genuine is no issue as to material fact plain language court’s decision. The and that a as a judgment be rendered provides 56.04; statute that one who furnishes matter of law. Tenn. R. Civ. P. alcohol, here, Clarke, as Dana not proxi- did does Stovall v. 113 S.W.3d (Tenn.2003). mately injuries cause In reviewing inflicted a motion for person. express summary judgment, intoxicated Under this must exam Court statute, terms of the Dana Biscan cannot ine the evidence and all reasonable infer- my past I from drinking. knew ple light in a most enees from the evidence just my son and experience with nonmoving party. Sto favorable to the with — of the kids’ be- vall, knowledge my general at 721. review of the Our didn’t, drank and some novo. Id. havior that some ruling trial court’s de Ashley talked with I asked —I and so A. Facts that, do, how to deal about what that, that, agreed, I she said begin by reviewing the facts as stat- my might be really whatever wishes parties’ summary judgment in the ed irrelevant, the kids that chose attachments, construing the were pleadings and I way do so. find a to Jenni- to drink would light facts most favorable if there was drink- Biscan, concerned about nonmoving party. fer know, that would be the ing, you there According as follows. The facts are I wor- driving issue. was drinking and Worley’s summary judgment, motion so happening. And ried about party daughter for his hosted and based upon that conversation based birthday. party Ashley’s eighteenth with the teen- my past experiences upon residence, Worley’s farm in was held at thing I decided that the best agers, —the County, Tennessee. Neither Williamson I could do would be ask thing safest invitations; Ashley nor sent written night so that spend the kids to rather, Ashley personally invited members they would or not drank whether party. of her school class to Other Ashley was go driving. not then off So through students heard about the in the invite her close friends going to party, word of mouth and came *15 class, to tell and she was told senior Worley Ashley. expected by which was and there party, to the them to come personally not Jennifer was invited the and soft drinks and would be food However, she, everyone party. like who everyone anyone in no event was —that Worley night cаme to the home on the encouraged spend was invited and party, was welcomed and allowed to anybody in no event—if night and stay party. for the drank, they in were to leave no event Worley any to serve Mr. did intend property. However, did not. beverages alcoholic and at- expected he that some of the minors party bring and
tending the would beer my That was rule. party. Worley it at the Mr. told drink Ashley to communicate Worley expected any that if of the Ashley prior party to the drank guests who requirement beverages, they guests consumed alcoholic spend night, but required be would party permitted would not be to leave the notify any of the Worley himself did not stay night. required and would be to the requirement prior of this guests his “rule.” The He testified that this was guests apparently of the party. Some op- in deposition excerpt by plaintiffs filed exam- about the rule. For knew or learned summary judg- position to the motion for deposition Biscan testified her ple, Dana testimony by following ment included the sleeping sleepwear and brought that she Worley: for Jennifer. bags for herself and party to have a and dur- We decided Worley underway, having party Once the was ing had talked about we—as minors that some of the up. I became aware topic drinking came party, beer, might expected as he had peo- brought was concerned that there would be happen. During accident, Worley some of the the record. After the Brown, guests, including minor consumed required guests testified he all of the alcohol. provided None this alcohol was to move their into a cars corral area to by Worley. prevent anyone leaving. else from deposition also testified his Based on the foregoing developed facts only that he was premises; adult on the in Worley’s summary motion for judgment that he premises; was control of the and response, Jennifer Biscan’s and con- charge that he was in of supervising the light strued in a most favorable to Jenni- party. acknowledged He guests’ that the fer, we must determine whether the defen- parents reasonably could expect that he plaintiff, dant had a would be supervising chaperoning Jennifer Biscan. party. He acknowledged also prerogative would have been his to have a Duty B. Generally permitted, rule that no beer would be but negligence A claim requires place instead he chose to furnish a where proof following of the familiar elements: minor guests who chose could consume (1) duty of care owed the defendant to alcohol. (2) plaintiff; conduct the defendant Worley testified that he “trying fading below the standard of care amount responsible guests’] welfare [the (3) ing to a duty; injury breach an keeping them with me at home.” When (4) (5) loss; fact; prox causation responsibility asked he had assumed Turner, legal imate or cause. 957 S.W.2d making they sure that if drank beer element, at 818. The existence of the first safe, Worley would I responded, “[y]es, duty, question City is a law. Coln tried to do that.” He also testified that it Savannah, (Tenn.1998). intent and that his he undertook to general, persons all have a “keep eye things sure and make duty “to use reasonable care to refrain hurt,” nobody got and testified that if foreseeably from conduct that will cause intoxicated, guests in- became he *16 Turner, injury to others.” 957 at S.W.2d stop tended to them driving from or leav- Co., (citing 818 Doe v. Linder Constr. 845 ing. In undertaking, furtherance of that (Tenn.1992)). 173, S.W.2d 178 deter We “just patrolled he and walked around.” duty particu mine whether a existed in a Worley testified that he did not make a by evaluating lar case the risk involved. point speaking of to minors who were “A gives risk is unreasonable and rise to a drinking try to to assess their condition duty act if the to with due care foreseeable anyone’s pick up keys pre- and did not probability gravity posed harm driving vent them from until after he was outweigh defendant’s conduct the burden n informed of the accident. upon engage defendant to in alternative Worley spent in most of his time prevented conduct that would have . house, away from where most of the Wilder, 150, harm.” v. 913 McCall S.W.2d were, guests in a watching TV central (Tenn.1995). 153 living room. He testified that later he duty in “camped easy general out” in an chair a bаck The of care does not duty half to act for the approximately room. He dozed off a include an affirmative however, another, protection hour before he was sirens on “unless the awakened accident, way special which occurred defendant ‘stands some relation source p.m., according ship person between 11:00 and 11:30 to either the who is the
479
reasonably foresee
were
person who is
occurred
danger,
of the
or to the
”
In
at 329.
foreseeably
danger.’
Burroughs,
at
from the
118
risk
able.
S.W.3d
Turner,
(citing
Bradshaw,
at
Brad-
957 S.W.2d
818
concluded
example,
we
871);
shaw,
at
see also Re-
854 S.W.2d
duty
a
to the immediate
physician
a
owes
(Second)
(1965)
§
of Torts
statement
to warn them
family
patient
members of a
“Restatement”).
(hereinafter
special
The
of the
exposure to the source
possible
excep-
doctrine
out an
relationship
carves
illness,
in the absence of
patient’s
even
general
tion to the
rule that there is no
im
relationship with the
physician-patient
duty
protection
to act for the
of a third
family.
members of the
mediate
Bradshaw,
871;
see
party.
854 S.W.2d
holding rested on the
at 872. Our
S.W.2d
words,
§
In
Restatement
other
also
highly foreseeable that
fact that it was
“
‘certain so-
recognizes
the doctrine
dis
would also contract the
patient’s wife
cially recognized relations exist which con-
patient.
killed the
Id. Similar
ease which
”
duty.’
legal
stitute the basis for such
physician
we held that a
ly, Burroughs,
Bradshaw,
(quoting
In a deciding whether duty a of care whether a defendant owed protection to act for the of a third owed particular plaintiff. Specifically, a whether the to party, we will also consider injuries manner in which consider plaintiffs and the innkeeper guest. Restatement See
4. The Restatement envisions that such "so- list, forty years published §§ cially recognized par- 314-15. This relations” include illustrative, child, employee, ago, not exclusive. employer is ent and 480 probability Worley duty
the foreseeable
of the harm the defendant
owed a
plaintiff,
injury occurring;
possible magni-
the
Jennifer Biscan.
potential
injury;
tude of the
harm or
Worley
To determine whether
owed a
importance
activity
or social value of the
duty
protect
to
from
harm
Jennifer
defendant;
engaged
the usefulness
Brown,
a
party,
caused
third
we must
defendant;
of the conduct to
the feasibil-
inquire
first
whether
stood in some
alternative,
ity of
safer conduct and the
relationship to
special
Jennifer or
to
relative costs and burdens associated Brown. The record reflects that Jennifer
conduct;
with that
the relative useful-
specifically
was not
to
party,
invited
conduct;
ness of the safer
and the rela-
Worleys permitted
all
but
her and
safety
tive
of alternative conduct.
guests
stay
the other uninvited
to
at party. Worley was aware that minors who
McCall,
153;
913 S.W.2d at
see also Bur
specifically
were not
invited to the
329;
roughs,
Staples
118
at
v. CBL
S.W.3d
Thus,
might
duty,
attend.
whatever
Inc.,
Assocs.,
(Tenn.2000);
15
&
S.W.3d 83
any,
any
guests
owed
the minor
Coln,
39;
966
at McClung
S.W.2d
v. Delta
was owed to all of them.
(Tenn.
Square
P’ship,
Ltd.
891
begin by considering
public
whether
1996).
a
policy favors
determination that
balancing
test
attempts
adult host
a sufficient relation-
align
imposition
duty
of a
with “soci
ship
guests, including
to all of his minor
ety’s contemporary policies and social re
Brown,
Jennifer and
such that he had a
quirements concerning
right
of individ
duty of care to each of them.
general public
protected
uals and the
to be
First,
legislature
has made the
from another’s act or conduct.” Brad
public policy determination that minors are
shaw,
(citing
at
L.
William
generally prohibited
consuming
from
alco
Prosser,
Revisited,
Palsgraf
52 Mich.
See,
§
Ann.
57-4-
e.g.,
hol.
Tenn.Code
1,
(1953),
L.Rev.
and Kirk v. Reese
203(b) (2002)
illegal
it
for minors
(making
Ctr.,
Hosp. & Med.
Ill.2d
purchase
person
alcohol and for
Ill.Dec.
513 N.E.2d
396-97
alcohol);
Tenn.
sell or furnish minor with
(1987)).
all
Although
balancing
consid
(2002)
57-5-301(e)(l)
(making
§Ann.
Code
important,
foreseeability
erations are
illegal
possess
for minors to
beer “for
prong
paramount
because “[f]oreseeabil
public
any purpose”).
policy
It is also the
Doe,
ity
negligence.”
is the test of
under the
prohibit persons
of this state to
sum,
cases such as
See,
driving.
e.g.,
influence of alcohol from
this one where we must determine wheth
§§
Ann.
55-10-401 to -416
Tenn.Code
duty
a defendant owed an affirmative
er
(2002).
unambiguous
In addition to these
another,
protection
act for the
we will
public policy
legislative pronouncements,
public policy
consider whether
and fore
duty
to act
imposing
considerations favor
seeability
recognizing
special
favor
rela
where such a
protection
for the
of minors
tionship, and we will also consider whether
dealing
absent when
might be
remaining
balancing
factors in the
test
that,
recognized
be
long
adults. We have
imposition
legal duty.
favor
of a
*18
immaturity
inexperi
cause of their
ence,
duty may
towards minors
a
exist
Duty to
Biscan
C.
Jennifer
adults.
might
where it
not exist towards
Co., 145 Tenn.
princi
Townsley v. Yellow Cab
Considering
foregoing
See
91,
(1922);
see also Hawkins
ples,
question
we turn to the
whether
481 (Tenn.Ct. 95, 262, Foods, Inc., Davis, 60 100 391 S.W.3d County v. 216 Tenn. R., Tinsley, 970 (1965); Newton v. App.2001); v. Michael see also 658 Gritzner S.W.2d 490, (App. (Tenn.Ct.App.1997). Wor- 493 228 Wis.2d N.W.2d S.W.2d 1999) (“it that an adult had neither the means ley argues self-evident that he [is] voluntarily supervision, He ability guests. who takes on the to control the nor the control, custody temporary on a knowledge or actual argues even that he had no basis, ... in a visiting of a child stands or Jennifer attended that either Brown ”). In child ... special relationship such attempted pre- that he party and sum, policy clearly public considerations could have leaving, vent Brown from he finding Worley special had a favor liability false im- exposed himself to relationship guests to his minor such assault, battery. or prisonment, duty safety, a to ensure their he had in the total absence of the agree driving prevent well as to them from while ability guests to control his Wor- means or intoxicated. ley special relationship not have a would Next we consider whether the foresee- charge” “in An adult host who is them. ability injuries and the man- of Jennifer’s however, minors, certainly held supports in which she suffered them ner ability to control the conduct has some finding special relationship. Moreover, Worley’s argument guests. his right have the absolute that he did not it
Worley recognized himself the stan guests misapprehends control his be- entirely guests foreseeable that would Worley did not have dard of care owed. Worley come intoxicated and drive. As duty guests; to control his an absolute deposition: stated his rather, to use an absolute he had I was concerned about if there was ordinary guests care to control his know, drinking, you that there would be Coln, safety. their See ensure I drinking driving issue. (“ reasonable, ‘Ordinary, at care is so happening. worried about And through be estimated the risk entailed upon based that conversation and based attending particu- probable dangers upon my past experiences with the teen- and is to be commensurate lar situation I agers, thing decided that the best —the ” Doe, injury.’ (quoting with the risk of thing I safest could do would be to ask Elkins, 178)); Frye v. see also spend night the kids to so that 317, 122 Tenn.App. they whether or not drank would (1938) (“ relative, and not ‘Ordinary care is go driving. not then off relative, absolute, and, being dependent that guests As was foreseeable would particular each upon the circumstances of drive, entirely drink and it was also fore- ”). case.’ guests seeable that would ride with drivers drinking. who had been We conclude that previous parties Worley testified that at foreseeability supports find- factor also son, teenage held for his he had monitored ing special relationship had a all of the cars guests and had “corralled” guests. to his minor control the a fence to be able to behind Indeed, guests. appellate departure of intoxicated points out that our that, Worley took a happened this accident required courts have in order to find after action, minor “corralling” all the relationship as that term is de similar special Restatement, to ensure no one else would guests’ the defendant cars fined communicating his “rule” to his to con leave. ability” must have the “means and clearly intention to daughter, it was his party. trol the third See Lett v. Collis *19 inevitable, from if prevent guests leaving that conduct were it must not drinking. Worley’s encouraged. ar- be condoned or been after-the-fact why it guments might as to have been Worley argues that this Court should duty unavailing, difficult to execute the are liability only imposed hold that will on a in particularly light of the fact that he did who social host either serves or furnishes attempt to enforce the rule. Rather guésts alcohol to minor or who exercises than continuing patrol and monitor the affirmative conduct and control over the guests, Worley asleep shortly fell before consumption Worley of alcohol minors. party. Brown and Jennifer left the this strenuously argues policy that it is bad case, might the exercise of reasonable care trying right hold him liable for to “do the included, in steps have addition to the thing,” actually if fur- whereas he had Worley previous parties, contacting took at minors, nished alcohol to the he would be parents guests intoxicated or even shielded Tennessee Code Annotated contacting police. care un- Reasonable section 57-10-101. der the circumstances not have in- recognize, Ap- as did the Court of physically restraining guests.
cluded his peals, apparent our tension between holding Worley duty a of care to owed Having Worley determined that had a protect underage guests his from harm special relationship to Brown and Jennifer legislative and the determination that one guests, minor as we examine the remain- cannot, who alcohol as a matter furnishes ing balancing factors test to deter- law, injury a to a proximate cause Worley duty mine a whether owed them person resulting consump- from the third First, possible magnitude care. Worley duty tion of alcohol. The of care potential injury great, harm or however, separate lies guests, owed to his Worley inju- recognized and as Jennifer’s furnishing alcohol. Be- apart from remaining demonstrate. The ries factors and facilitat- knowingly permitted cause he value, importance, balance the social minors, consumption ed the of alcohol activity against usefulness of the the feasi- act, Worley had a to exer- illegal usefulness, costs, bility, safety, and bur- prevent guests cise reasonable care to his Thus, dens alternative conduct. harming persons or from befall- from third value, importance, must balance the social ing Considering harm themselves. party a hosting and usefulness of with the favorable to the light facts most providing place intention of a “safe” for affirm the trial plaintiffs, we therefore alcohol teenagers against to consume Worley’s court’s denial of motion sum- usefulness, feаsibility, safety, costs and mary judgment ground. on this declining party. burdens of to host such a Duty D. Assumption of underage drinking illegal, Given difficulty concluding we have little plaintiffs’ We turn next if utility, any, there is minimal social duty of argument that assumed providing teenagers a forum for to con- guests to all of minor who attend care Worley argues sume alcohol. that “kids ed the breached way that chose to drink would find to do that intoxi duty by failing to ensure so,” penalized and that he should not be guests party. cated did not Wor- leave they would permitting ley argues them to do what that he did not assume such did, if abandoned inevitably regardless duty, do of his wishes. We but that even he he act, though it. even strongly disagree. Our view is that even “One who assumes *20 gratuitously, may subject thereby guests stay become the rule that who drank had to duty of acting carefully.” Stewart v. overnight. Worley argues that because State, (Tenn.2000) (quo- there was no detrimental reliance on Wor- omitted). tation and citation or Whether Brown, ley’s by rule either or Jennifer person duty not a has assumed a a to act is duty can no there owed to them. How- question of law. Id. ever, testimony Brown’s was contradicted Worley by Ashley Worley’s testimony deposition stated that his “rule” would be that any minors who consumed alcohol in- personally she invited Brown and required would be to spend night, the rule, him by formed of the Dana Bis- prevent he intended to minors from deposition testimony can’s that both she leaving party they had been drink- spend and Jennifer intended to night ing. He also admitted in deposition, his Worley Considering farm. these plaintiffs submitted in opposition to facts in the light most favorable to Jenni- summary his motion for judgment, that he fer, we must conclude that Brown and responsibility had assumed making Jennifer were aware of the rule. More- guests sure that if the they drank beer over, having duty undertaken a protect to safe, would be “trying and that he was to guests consequences his from the of drink- responsible guests’] [the welfare ing driving, any reliance of keeping them with me at home.” He also guests Worley’s protection on was not re- testified that it was his intent and that he “(a) quired. Worley is liable if either his “keep eye undertook to an things on and failure to exercise reasonable care increas- nobody make sure got hurt.” (b) harm, es risk of such or he has Worley argues that he abandoned duty undertaken to perform owed duty might he have by failing assumed to (c) person, other to the third the harm rule, enforce the but his failure to enforce is suffered because of reliance of the other very the rule negligence of which the person or the third upon undertaking.” plaintiffs complain. Worley could have added). § (emphases Restatement 324A duty abandoned the by canceling par- ty, but guests invited, Considering light once the the facts in the most had been arrived, begun and had drinking, plaintiffs, favorable to the we hold that Wor- ley positiоn was not in a to abandon Worley voluntarily did duty assume a duty he had protect undertaken to them. attending Ashley’s the minors party, in- Indeed, Worley’s testimony own reflects Brown, cluding Jennifer and and we there- that he continued to duty execute his well fore affirm the trial court’s decision to started; after the he stated in his deny summary judgment on that basis as deposition “patrolled that he and walked well.5
around” in an attempt “keep eye things” during the party. Conclusion Worley argues that even if he assumed a Having ap- reviewed the record and the duty protect guests who were invit- plicable authority, ed to party, duty he did not we hold that the trial assume Brown, as to either Jennifer or court in excluding because did not err evidence of Brown testified that plaintiff, were unaware of the minor prior Jennifer Biscan’s decline, Because we have Appeals, determined that as did the Court of duty owed a plaintiffs' argument common-law to Jennifer Biscan reach the her, voluntarily negligent and that he per assumed was also se. objective has been at 56. The *21 prior ex- 833 S.W.2d offenses and her alcohol-related being hold that interest in plaintiffs alcohol. We also a periences with to reconcile determining not err in the trial court did interest in whole with a defendant’s made Biscan, sister, Dana was plaintiffs that the damages only percentage paying pursuant of law not at fault as a matter is re- particular defendant for which that statutory for furnishers shield Tennessee’s Brown Wal-Mart Discount sponsible. v. beverages. Finally, we hold of alcoholic (Tenn.2000). Cities, In 12 787 defendant, a Worley, Paul had the words, liability to fault means linking other Bis- duty common-law of care Jennifer liability be commen- that a defendant’s will voluntarily assumed can and that he also degree her actual surate with his or affirm the duty. therefore such We fault. Appeals result reached Court decided, McIntyre was years Four after set out herein. separate grounds M. Ralph v. Parsons Ridings the case of to the defendant- shall be taxed
Costs (Tenn.1996), sureties, Co., provided for which and their 914 S.W.2d appellants necessary. if may issue to decide opportunity execution with our first us comparative under Tennessee’s whether DROWOTA, III, C.J., F. filed FRANK assigned to an system fault could be fault dissenting opinion. concurring we ad- Specifically, immune tortfeasor. fault could question of whether dressed DROWOTA, III, C.J., F. FRANK in an employer to an immune assigned be in concurring part, dissenting part. arising action third-party tort employee’s majority’s conclu- fully agree I with held in injury. We out of a work-related pri- of Jennifer Biscan’s sion that evidence im- which were Ridings employers alcohol, including her experiences or with by virtue of the liability tort mune from citations, properly ex- juvenile court not be laws could compensation workers’ that Paul fully agree I also cludеd at trial. of fault because in the included assessment care to of reasonable owed McIntyre postulates “rationale of However, agree I not do Jennifer Biscan. per- only to those fault be attributed analysis concerning the majority’s with a cause has against plaintiff whom the sons Dana Biscan. I of fault to apportionment holding how, This my in tort.” Id. at 81. explain of action separately write in another view, analysis of this issue majority’s subsequently reaffirmed fairness goal achieving legisla- contradicts that the explained case which we by linking liability fault comparative under immunity to ture, of tort through grant to fault. already determined employers, may not be employer reasons policy I. em- cause of an legal, proximate, Balentine, McIntyre In v. 833 S.W.2d v. injuries. Snyder ployee’s work-related (Tenn.1992), a modified adopted this Court GmbH, 955 S.W.2d LTG Lufttechnische goal of comparative fault. The system of (Tenn.1997). 252, 256 this Court’s subse McIntyre and all of Rid- reaffirmed Shortly Snyder after has been fault decisions quent comparative Whitney, Carroll v. ings, we decided liability to by linking achieving fairness Carroll, (Tenn.2000). Fisher, Ali v. 145 S.W.3d fault. See appor- fault could question was whether (Tenn.2004); Whitney, 563-64 Carroll than immune other tortfeasors (Tenn.2000); tioned to McIntyre, employers.1 that fault from the situation in Carroll differently immune We held apportioned nonpar- to immune sub- “require drawing could be would difficult and ones, liability distinctions, to link fault and ties ordеr tle not artificial mak- thereby possible achieve the fairest result. im- unworkable standard in this ing for an explained “we would either have Id. at portant comparative fault.” area nonpar- to exclude evidence of an immune Accordingly, we concluded in Dotson ty’s thereby conduct blindfold only could assigned that fault *22 to relevant evidence or we have to would from who immune those tortfeasors were jury to par- force a allocate fault between also to who liability, those tortfeasors but wholly responsible. ties were not who liability” “effectively immune from were a This is choice that we to make.” decline an Id. by of affirmative defense. virtue Furthermore, Id. at 19. that explained we “Otherwise, liability might imposed be dis- holding the of nor McIntyre neither its fault, in- proportionately to a result plainly underlying rationale limits the attribution fault comparative with our consistent only persons of to against fault whom the scheme.” Id. plaintiff has a cause of tort. action in Id. Thus, at 17-18.2 not to under- wanting II. tight “fair and fault mine the fit” between illustrates, foregoing As the discussion liability when some tortfeasors are has been a this Court careful to craft fault, from of apportionment excluded the comparative system of fault which remains joined compara- we “the vast majority of goal fault. linking liability true to the of to jurisdictions broadly tive permit fault that However, below, majori- exрlained as the of fault to persons allocation all involved in ty’s comparative resolution of the fault is- injury-causing 21. event.” Id. at This in case that sue this is inconsistent with holding subsequently reiterated an- goal. case, other Johnson v. LeBonheur Chil- Ctr., dren’s Med. 346 S.W.3d majority correctly recognizes The (Tenn.2002), in which that “fault we stated 57-10- Code Annotated section Tennessee apportioned could be to not- nonparty, a it has “impossible 101 makes for one who withstanding that im- nonparty the by an to injured person been intoxicated from suit.” mune the negligence against state a claim for entity person or who alcohol be- Blake, (Tenn. furnishes In Dotson v. removes, of cause as a matter 2000), the statute expanded adopted we the rule law, required legal element of causa- the protected to include Carroll tortfeasors Thus, majority tion.” the that Dana defense, finds liability by from an affirmative Dotson, be held liable for a Biscan cannot Jennifer namely, repose. statute of I notion, injuries. agree Biscan’s rejected accepted by section now finding on the precludes legal liability a majority, may assigned fault be majori- Biscan. part a tortfeasor if there is a of Dana But then the nonparty only “[sjince cannot, granting ty immunity. explained statute concludes Dana law, treating the situation in Dotson a be at fault for matter of Jennifer’s malpractice Despite disagreeing was a 1. Carroll medical case in 2. with the rationale Snyder, Ridings were not jury assigned physicians those cases which fault to unique in Carroll because overruled liability who were immune from because employer’s right subrogation nature of an employees of the were State. Carroll, compensation cases. in workers’ injuries, only majority’s allow Not is the incon- opinion would have been error to linking liability Citing goal sistent apportion fault her.” fault, opinion departs from Dotson’s Carroll, majority notes that this result rejection the notion fault protected were Dana would different only assigned nonparty tortfeasor suit. making a statute her immune from granting immunity. The there is statute majority enacting that in sec- reasons from protected were tortfeasors Dotson make legislature tion “the did liability by an affirmative stat- defense—a im- or alcohol persons entities who furnish repose granting ute of statute rather, —not suit; legislature mune from following immunity. blanket Rather than furnishing is not determined that alcohol Dotson, adopted rule and rationale injuries proximate cause of inflicted majority on the has cast serious doubts Thus,' person. an intoxicated the effect Indeed, viability of that continued case. provision person entity make a is to *23 majority alto- opinion ignores the Dotson from fault who furnishes alcohol immune gether. liability.” well as immune from Furthermore, majority’s anаlysis the is disagree precludes I that section 101 premise flawed because it is based the allocating explained fault to Dana. As those only assigned that fault can be to Johnson, above, Carroll, make Dotson has against plaintiff tortfeasors whom the that in fairest clear order to achieve the majority of reasons a cause action. linking possible by liability result assigned to Dana be- that fault cannot be fault, assigned fault may be to tortfeasors not “merely cause section 101 does restrict immune effectively who are immune or action, of remedy [re- the a cause but liability. Dana from Section makes This entirely.” of action moves] cause effectively conduct immune because her rejected in very expressly notion was Car- legal cause Jennifer’s cannot the of roll, the in which “neither we said just injuries. Dana cannot be liable held underlying- nor holding [McIntyre of its ] like the in Carroll and Dotson tortfeasors only of fault rationale limits the attribution could not held liable. The Court against the has persons plaintiff whom Carroll, and Dotson allowed Carroll nevertheless cause of action in tort.” abandoning all of the assigned By fault to be the tortfeasors at 18. likewise Carroll, has cre- majority of the imposing liability dispro- in order to avoid rationale im- in this yet inconsistency the ated another using fault. of portionately to Instead area of the law. сase, portant the approach to resolve this same majority very has made choice which is that Dana Finally, majority insists make in “ex- we declined to Carroll-either therefore “statutorily fault” and without nonparty’s an clude evidence of immune legisla- the courts defer to “should jury to thereby blindfold the conduct fault eliminate the policy ture’s decision jury or ... relevant evidence force persons by section 57-10-101.” covered parties fault who were allocate between is this notion is derived From what source Carroll, wholly responsible.” im- unclear, precludes section By disallowing consider- 19. Dana. upon legal responsibility position fault, has majority nothing ation Dana’s the attribu- says The statute about Indeed, evidence 101 was to relevant section blindfolded tion fault. became years and forced allocation fault between six before Tennessee passed Thus, contrary responsible. comparative fault state. parties wholly who are not assertion, majority’s legislature policy did not make a decision to Judith CHRISTENBERRY eliminate persons covered section fault 101. Stanley TIPTON, F. et al. analysis, the final regardless of whether Dana protected by is a statute Tennessee, Supreme Court of making her immune or one such as at Knoxville. section 101 that precludes legal responsi- Jan. 2005 Session.
bility, the result is the same—Dana cannot extent, be held hable. To this present March case no different from Carroll and Dot- Accordingly,
son. there is no reason to
adopt analysis contrary analyses
used in those majority’s opin- cases. The pave way
ion will very for the problem
which sought to avoid in Dotson —re-
quiring the bench and bar to draw “diffi-
cult distinctions, and subtle if not artificial
ones, making for an unworkable standard important this area of comparative *24 Dotson,
fault.” at 29. I believe majority’s
that the needlessly decision in-
jects confusion previously into settled law.
III. majority’s abrupt departure from
Carroll, Johnson, and Dotson is inconsis-
tent with our in McIntyre decision consistency
undermines the reliability
of this subsequent Court’s decisions
area of comparative fault. I would adhere adopted
to the rule in Carroll and reiterat-
ed in Johnson and Dotson and find that
although Dana may be insulated from lia-
bility under jury may section nev-
ertheless consider her fault in determining “Otherwise,
the fault of all parties.
liability might imposed disproportion- fault,
ately to a result plainly inconsistent comparative
with our fault scheme.” Dot-
son, 29