                                                                                               12/18/2019
                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                   May 22, 2019 Session

                   JIMMY WAYNE HELTON v. EARL LAWSON

                   Appeal from the Circuit Court for Hawkins County
                       No. CC17CV150 Beth Boniface, Judge
                       ___________________________________

                            No. E2018-02119-COA-R3-CV
                        ___________________________________


The plaintiff sued the defendant for negligence after he was injured in a construction
accident on the defendant’s property. The defendant claimed that he was not the
employer of the plaintiff. Following a trial, the jury returned a verdict in favor of the
defendant and awarded the plaintiff no damages. The plaintiff appeals. We reverse the
jury’s verdict only as to damages.

           Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                   Reversed in part; Affirmed in part; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and ARNOLD B. GOLDIN, J., joined.

Jimmy Wayne Helton, pro se.

Earl Lawson, pro se.


                                          OPINION

                                     I. BACKGROUND

       In the fall of 2012, local “handyman” Gene Housewright was planning to help the
defendant, Earl Lawson, construct a house. The plaintiff, Jimmy Wayne Helton,
contacted Housewright seeking employment.1 According to Helton, Housewright
informed him that Lawson was going to build his own home and would need laborers for
       1
          Helton stated: “I went and asked him if he had any extra work, something he didn’t
want to do, couldn’t get to . . . .” Housewright testified that the electrician who had worked on
the build was Helton’s brother, who mentioned that his sibling was looking for work.
that project. On November 6, 2012, the day of the accident, Housewright and another
worker “started assembling bracing to screw it to the house for [a] board to sit on.” Later
that morning, Helton was standing on the board while hanging vinyl siding. Another
worker was on the other end of the board and one was on the ground handing up the
pieces of siding. According to Helton, as he started to nail up a piece of siding, the board
flew out from under him. It appears that the bracing pulled loose from the house and
collapsed, sending Helton feet first into a footer ditch containing concrete. The worker
handing up the siding to Helton testified at trial that “[t]he board come loose, and he fell
straight down, and the walk board was on top of his leg when we got him back up.”

       Despite Lawson attempting to take him to the emergency room, Helton, believing
that he had only suffered a sprained ankle, refused to go. About 30 days after the injury,
however, Helton informed Lawson that the ankle was not improving and that he needed
to see a doctor. He requested and was provided Lawson’s insurance information. After
evaluation, Helton was given a brace boot for a fractured ankle. He was informed that
Lawson’s insurance would not cover the work-related accident, as Lawson did not carry
workers’ compensation insurance or hold a valid certificate of insurability under the
Workers’ Compensation Act. Helton eventually learned that in addition to the fractured
ankle, he had sustained other related painful and permanent personal injuries in the fall.

       Rather than seeking Workers’ Compensation benefits, Helton brought this action
and the prior nonsuited lawsuit in tort for negligence. Helton asserted that because
Lawson failed to have a certificate of insurability and did not insure Helton on the date of
the accident, he was entitled to seek his remedy in tort. He argued that Lawson employed
him and should have had workers’ compensation coverage at the time of the accident. He
further contended that Lawson was the provider of the unsafe and defective bracing
equipment and breached his duty of care to Helton and proximately caused the damages
Helton sustained. Lawson denied liability on the ground that he was not Helton’s
employer and was not responsible for the negligent acts of Housewright and his
employees.

       Helton moved for partial summary judgment on the issue of liability – duty and
breach of duty. He asserted that Lawson, on the date of the accident: (a) did not have a
proper certificate of insurability showing that he had complied with the Workers’
Compensation Act; (b) did not carry Workers’ Compensation Insurance on any of the
persons he employed; and (c) had no Workers’ Compensation Insurance coverage on
Helton. Helton argued that Tennessee Code Annotated section 50-6-405(a) required an
employer to “[i]nsure and keep insured” his liability under the Act, and to “[p]ossess a
valid certificate of authority from the commissioner of commerce and insurance by
furnishing satisfactory proof” of his ability to pay all claims arising under the Act.
Helton relied upon section 50-6-406(b), which provides as follows:

              If an employer fails to comply with 50-6-405, then during the
                                          -2-
              continuance of the failure, the employer shall be liable to an
              injured employee . . . for damages to be recovered as if this
              chapter had not been enacted . . . ; and in the case suit for
              damages is brought instead of a suit to recover compensation
              under this chapter, the employer, when sued, shall not be
              allowed to set up as defense to the action that the employee
              was negligent or that the injury was caused by negligence of a
              fellow servant or fellow employee, or that the employee had
              assumed the risk of injury.2

Helton thus contended that Lawson was not allowed to set up the defense that Helton was
negligent, as the statute’s terms negate any comparative fault defense. He further argued
that Lawson could not “pawn” the accident off on a supervisory employee
(Housewright), as Lawson would be precluded from raising the defense that the injury
was “caused by negligence of a fellow servant or fellow employee.”

       In response, Lawson asserted reliance on Tennessee Code Annotated section 50-6-
106(1)(B)(2) relating to exemption of “casual employees”3 from the provisions of the
Workers’ Compensation Act, and sections 50-6-902(b)(4) and (b)(5), exempting from
coverage a construction services provider4 who is either performing work directly for the
owner of the property or is employed to provide services, maintenance, or improvements
on the construction services provider’s own property. Helton replied that the test of
casual employment is whether the employee is employed in the usual course of trade,
business, profession or occupation of the employer, and that the period of time the
employee is employed is immaterial to this test (emphasis added). He argued that
Lawson had admitted that he was in the construction business, negating the “casual
employee” defense. Thus, contended Helton, Lawson could not rely on Tennessee Code
Annotated section 50-6-102(1)(B)(2).

        As to section 50-6-902(b)(4), Helton argued that it applied only to those who
totally subcontract out work on their own property and he asserted that there was no
allegation that Lawson did not supervise the work of Helton and the others. Helton
further contended that Lawson affirmed in the permit that he was the principal contractor
on the job, negating the section 50-6-902(b)(4) exemption. As to section 50-6-902(b)(5),

       2
         The “institution and prosecution to final judgment of a suit for damages shall be deemed
a waiver of a right to claim compensation under” the Workers’ Compensation Act. Tenn. Code
Ann. § 50-6-406(c).
       3
         “Any person whose employment at the time of injury is casual, that is, one who is not
employed in the usual course of trade, business, profession or occupation of the employer.”
Tenn. Code Ann. § 50-6-106(1)(B)(2).
       4
          A “construction services provider” means any person or entity engaged in the
construction industry. Tenn. Code Ann. § 50-6-901(5).
                                              -3-
Helton asserted that a construction services provider like Lawson would be exempt from
compliance with the terms and provisions of the Workers’ Compensation Act if he
himself was “building a dwelling or other structure, or performing maintenance, repairs,
or making additions to structures, on the construction service provider’s own property,”
but that the exemption was inapplicable because Lawson was not building the house for
himself and had sold the home.

        Lawson admitted that he carried no certificate of compliance or any workers’
compensation insurance on the date of the accident. He contended, however, that
summary judgment was inappropriate because there was a disputable issue of material
fact as to who served as Helton’s employer. Lawson relied on an affidavit in which
Housewright maintained that it was he who had hired Helton and that “[a]t all times any
individual who worked on the home at issue worked for me at my direction and did what
I told them by way of their work efforts.”5

      The trial court ruled that summary judgment was not appropriate because Helton’s
employment status was in dispute. The jury trial came to be heard on July 2, 2018.

       At trial, Lawson again acknowledged that he did not have workers’ compensation
insurance. Lawson contended that because the non-party Housewright was Helton’s
employer, Housewright would be at fault and responsible for any injuries Helton could
prove.

        Lawson admitted that the project’s accounts were in his name, that the invoices for
materials bore his name, that he paid the bills, and that he basically controlled the
operation. He acknowledged that he secured the building permit in his name, affirming
on the form the following: “I am a record owner of the property on which the work is to
be performed and this residential structure is for my own individual use and is not for
sale, lease or rent . . . .”; “I will perform all work for which the building permit was
issued . . . and agree to ensure anyone hired must show proof of license . . . .”; “I am not
hiring a construction manager to oversee the project[,]”; and “[S]hould I cease to act as
the owner-builder of the project, and hire a contractor to complete the project, . . . the
contractor will apply for a new permit.” In essence, by obtaining the building permit in
his name, Lawson agreed that he would be acting as his own “general contractor” or
“prime contractor” on the project.6 Despite signing an acknowledgment that he had “read

       5
          It appears that Housewright also did not have workers’ compensation coverage.
       6
          “General contractor” means the person or entity responsible to the owner or developer
for the supervision or performance of substantially all of the work, labor, and the furnishing of
materials in furtherance of the construction, erection, remodeling, repair, improvement, alteration
or demolition of a building, structure or other undertaking and who contracts directly with the
owner or developer of the building, structure or other undertaking; “general contractor” is also
referred to as a prime contractor. Tenn. Code Ann. § 50-6-901(10); Winter v. Smith, 914 S.W.2d
                                               -4-
the important notices document and understand the requirements and responsibilities that
accompany a Homeowner’s Permit and that I have truthfully completed this application,”
Lawson testified that he did not read the notices on the building permit application;
rather, he just marked what “[t]he lady told me to mark – to answer these questions and
sign here.” Lawson asserted that he did not understand that his answers on the permit
meant that he “couldn’t hire people to help . . . work on that home or get Gene to run the
job or anything like that.” He stated that he had built other buildings and had never
secured a permit.7

       Lawson testified that he did not witness Helton’s fall, but when he arrived, Helton
declared to him that the injury was just an ankle sprain. Lawson claimed that he was not
involved in any way with the bracing and did not provide any equipment or tools. He
asserted that the bracing was hand built by Housewright, who, with the help of another
worker, assembled it to “screw it to the house for the board [a piece of aluminum] to sit
on.” Lawson did comment that perhaps the bracing did not collapse but rather that
Helton was under the influence of marijuana or alcohol, or a combination of the two,
when he fell. Suggestions that drug use was an issue, were made throughout the trial, by
the defense but, no proof of Helton’s impairment was established. Another witness, the
worker who was handing the vinyl up to Helton, opined that Helton was not impaired and
was able to do his job.


527, 539 (Tenn. 1995). A general contractor is normally responsible for obtaining the necessary
construction permits and for hiring and supervising the work of the subcontractors on the project.
Winter, 914 S.W.2d at 539-40. A contractor is defined in section 62-6-102(2) as one who
engages in “contracting.” Contracting, according to section 62-6-102(1)(A), includes only those
construction activities undertaken “for a fixed price, fee, commission, or gain of whatever
nature.” Winter, 914 S.W.2d at 540. While many of the responsibilities that Lawson took on
during the construction would normally be a general contractor’s responsibilities, the mere fact
that he assumed the responsibilities does not transform an owner into a “contractor.” Id. at 539-
40.
        7
          Tennessee Code Annotated section 62-6-103(a)(2)(A & B) recognizes an exemption to
state law requiring that licensed contractors be used on all construction projects defined as
“contracting” by Tennessee Code Annotated section 62-6-102; however, the exemption only
allows a person who owns his own property to construction a single residence, farm building, or
other building for individual use in the county of residence, and not for resale, lease, rent, or
other similar purpose, provided that no such owner may be allowed to claim the exemption if
such owner constructs more than one single residence within a period of two years. The
exemption and the provisions of section 13-7-117 require that the owner perform his own work
or immediately supervise the work on such person’s own property. Failure by the owner to do
so, or to use the exemption as a subterfuge to use a non-licensed contractor to perform such
work, is a violation of Tennessee Code Annotated sections 13-7-117, 62-6-103, and 62-6-126,
which violations constitute criminal offenses. The Workers’ Compensation Act requires any
person or entity engaged in the construction industry to carry workers’ compensation insurance
on themselves. Tenn. Code Ann. § 50-6-902(a).
                                              -5-
       Lawson related that he did not know Helton before the work on the house; rather,
according to Lawson, Housewright hired Helton to work for him. Lawson declared that
he did not instruct Housewright to hire other workers for the project, but Housewright
secured other individuals to work with him. Lawson claimed that he had no control over
the laborers – he did not hire or fire any of them nor did he schedule the work hours.
Lawson stated that he paid Housewright in cash and was unaware of how Housewright
paid the workers. Lawson acknowledged that Housewright never purchased anything
with his own money.

        Housewright testified that he “was working on [Lawson’s house] with a couple of
boys that work with me.” He stated that he hired Helton upon the suggestion of the
electrician, Helton’s brother. According to Housewright, Helton “’worked for me,’ and I
‘was his boss and/or supervisor.’ I was the one building the house. [Lawson] paid us,
but [Helton] worked for me.” Housewright claimed to be “the prime contractor on th[e]
house” and was “overseeing the project.” He testified that Lawson designed the house,
“drawed the prints out and told . . . what he wanted,” and “[h]e’d come over there after
work of the evening and say if it was all right or not all right.” According to
Housewright, Lawson paid for everything. In an affidavit, Housewright maintained that
he was hired by Lawson to construct the house and that it was his choice who to hire as
laborers. He stated that “[a]t all times any individual who worked on the home at issue
worked for me at my direction and did what I told them by way of their work efforts.”
Housewright claimed that “[a]t no time did I ever tell anyone working for me that they
worked for anyone other than me,” nor “did I ever tell anyone that they would be
working for Earl Lawson.” He observed that Lawson “had no knowledge” of Helton
being hired and probably “did not even know” Helton. As to the bracing, Housewright
claimed that Helton helped construct it, and if it was improperly built, it was due to
Helton’s own negligence. Housewright claimed to be unaware that he lacked the
authority to construct a building exceeding $25,000 in value because he was not a
licensed contractor. He acknowledged that he smoked two joints of marijuana with
Helton the day of the accident before work started.

       Helton claimed that Housewright informed the workers that while on Lawson’s
property, they worked for Lawson. He noted at trial as follows:

             I thought I worked for [Lawson] because [Housewright]
             introduced me to [him] and told him I was there to help [him]
             build his house. We shook hands. We went to work. Just
             because I’d been in around the business for many years, I
             knew that [Lawson] was the employer, and I knew that he had
             to have the building permit because it was his property and
             there was no licensed contractor on the property. It had to be
             [Lawson].”

                                         -6-
According to Helton, Housewright located the experienced workers for the construction
of the house for Lawson and served as a supervisor to Lawson on the build. He observed
that Housewright would total the hours worked by the workers, and Lawson paid them in
cash. Helton acknowledged that Housewright assembled the bracing that failed to
support the platform. On appeal, he contends that the bracing was present that morning
when he arrived and that Lawson purchased the materials. He asserts that incorrect
anchors (screws) were purchased, delivered, and supplied by Lawson for use on the
structure. Overall, he claimed Lawson is liable because “it is his job, his property, his job
site. He is liable and responsible for his people.”

        According to Helton, on the day of the accident, he was not under the influence of
anything at 9:30 in the morning. He contended that he did not see Housewright smoking
marijuana at the job site. Helton testified that the last time he had water skied or used a
waterboard was about six years before the accident. He acknowledged that he had
suffered falls since the accident because his right ankle will not hold up his weight and
his left leg will not “work right” and will “quit working for no reason at all and [with] no
warning . . . .” His girlfriend testified that she had witnessed him falling several times.
Helton asserted that prior to the accident, he had no problems with his back, neck, or leg,
but now every day is a struggle. A physician’s testimony confirmed Helton’s injuries and
observed that Helton had difficulty walking.

     After the jury trial, Helton was found to be an employee of the non-party
Housewright, 30 percent at fault for his injuries, and entitled to no damages.
Housewright was found to be 60% at fault and Lawson 10%.

       Helton filed a “Motion for Re-Trial,” asserting that the jury did not appear to
comprehend their responsibilities pursuant to the jury instructions. He contended that
because Housewright was not a licensed contractor and could not obtain a building
permit on the project, Lawson should be considered the employer of anyone working on
the property – Housewright as well as Helton. According to Helton, pursuant to the
building permit, Lawson assumed all responsibility on the project. After the trial court
denied the motion for a new trial, Helton filed a timely appeal.



                                        II. ISSUES

       Helton contends that the jury verdict was contrary to the weight of the evidence
presented at trial. Helton argues that Lawson, as the permit holder, was responsible for
the safety of the persons working on the home. According to Helton, the individual
absolutely liable for his injuries was Lawson.


                                            -7-
                             III. STANDARD OF REVIEW

        Rule 13(d) of the Tennessee Rules of Appellate Procedure narrowly limits the role
of appellate courts in reviewing the factual findings of a jury. Duran v. Hyundai Motor
Am., Inc., 271 S.W.3d 178, 204 (Tenn. Ct. App. 2013). “Findings of fact by a jury in
civil actions shall be set aside only if there is no material evidence to support the verdict.”
Tenn. R. App. P. 13(d); Goodale v. Langenberg, 243 S.W.3d 575, 583 (Tenn. Ct. App.
2007). “Material evidence is ‘evidence material to the question in controversy, which
must necessarily enter into the consideration of the controversy and by itself, or in
connection with the other evidence, be determinative of the case.’” Meals ex rel. Meals
v. Ford Motor Co., 417 S.W.3d 414, 422 (Tenn. 2013) (quoting Knoxville Traction Co. v.
Brown, 89 S.W. 319, 321 (Tenn. 1905)). Material facts may be proven “by direct or
circumstantial evidence or a combination of both.” State v. Phillips, 138 S.W.3d 224,
230 (Tenn. Ct. App. 2003) (citations omitted). Testimony alone may be sufficient to
establish a material fact. See Strickland v. City of Lawrenceburg, 611 S.W.2d 832, 835
(Tenn. Ct. App. 1980) (finding testimony was material evidence to support the jury’s
verdict); Henley v. Amacher, No. M1999-02799-COA-R3-CV, 2002 WL 100402, at *13
(Tenn. Ct. App. Jan. 28, 2002) (“[T]he surgeon’s testimony provides the material
evidence needed to sustain the jury’s determination that the June 28, 1995 wreck left Mr.
Henley permanently impaired.”). When determining whether there is material evidence
to support a jury verdict, we must “take the strongest legitimate view of all the evidence
in favor of the verdict, assume the truth of all evidence that supports the verdict, allow all
reasonable inferences to sustain the verdict, and discard all countervailing evidence.”
Barkes v. River Park Hosp., Inc., 328 S.W.3d 829, 833 (Tenn. 2010) (quoting Whaley v.
Perkins, 197 S.W.3d 665, 671 (Tenn. 2006)).

        When reviewing a jury’s verdict, we “do not recalibrate the jury’s preponderance
of the evidence assessment” or reevaluate credibility determinations. Ferguson v. Middle
Tennessee State Univ., 451 S.W.3d 375, 380 (Tenn. 2014). Accordingly, “[w]here there
is material evidence to support the verdict, the judgment will be affirmed even though the
testimony of one or more witnesses supports a contrary verdict.” Higgins v. Channel
Five Television Co., No. 89-127-II, 1989 WL 115217, at *1 (Tenn. Ct. App. Oct. 4, 1989)
(citing City of Chattanooga v. Ballew, 354 S.W.2d 806 (Tenn. Ct. App. 1961); Tenn. R.
App. P. Rule 13(d)).




                                             -8-
                                     IV. DISCUSSION

                                 Workers’ Compensation8

        The purpose of the Workers’ Compensation Law is to provide a reliable and
equitable remedy to workers who are injured on the job, while limiting the liability to
which the employer is exposed. See Clanton v. Cain-Sloan Co., 677 S.W.2d 441, 443
(Tenn. 1984); Sasser v. Averitt Express, 839 S.W.2d 422, 429 (Tenn. Ct. App. 1992).
Tennessee Code Annotated section 50-6-101, et seq. The law requires employers to
compensate employees for injuries arising out of and occurring in the course of
employment. Tenn. Code Ann. § 50-6-103. Employers and employees in Tennessee
subject to the Workers’ Compensation Law “shall, respectively, pay and accept
compensation for personal injury or death by accident arising out of and in the course of
employment without regard to fault as a cause of the injury or death[.]” Tenn. Code Ann.
§ 50-6-103(a)(2008).9 An injury must arise “primarily out of and in the course and scope
of employment that causes . . . the need for medical treatment.” Tenn. Code Ann. § 50-6-
102(14). An injury arises out of employment when there is a causal connection between
the conditions under which the work is required to be performed and the resulting injury.
Fritts v. Safety Nat’l Cas. Corp., 163 S.W.3d 673, 678 (Tenn. 2005).

      Generally, only employers with five or more employees are required to provide
workers’ compensation coverage for their employees. Tenn. Code Ann. § 50-6-106(5).
However, this limitation does not apply to the construction industry, “perhaps because of
the dangers arising in many construction trades and because many small contractors
employ fewer than five workers. CNA (Continental Cas.) v. King, No. M2004-02911-
COA-R3-CV, 2006 WL 2792159, at *4 (Tenn. Ct. App. 2006). See Tenn. Code Ann. §
50-6-102(11); Tenn. Code Ann. § 50-6-902.

       As noted in CNA (Continental Cas.),

              Tennessee Code Annotated [section] 50-6-113(f)(1)10
              provides that “any person engaged in the construction

       8
           Extensive changes in the workers’ compensation system in Tennessee took effect on
July 1, 2014, by legislation originally enacted in 2013. The submission and disposition of
workers’ compensation claims arising on or after July 1, 2014, was taken out of the circuit and
chancery courts of the State. There is now a court of workers’ compensation claims. See 2013
Tenn. Pub. Acts, c. 269.
        9
          Helton’s injury occurred prior to the amendment of the statute in 2014.
        10
           The legislature in 2010 deleted Tennessee Code Annotated section 50-6-113(f) and (g),
effective March 1, 2011, and adopted Tennessee Code Annotated Part 9 – Construction Services
Providers, §§ 50-6-901 et seq.
                                             -9-
              industry, including principal contractors, intermediate
              contractors, or subcontractors,11 shall be required to
              carry workers’ compensation insurance.            This
              requirement shall apply whether or not the person
              employs fewer than five (5) employees. Sole proprietors
              and partners shall not be required to carry workers’
              compensation insurance on themselves. . . .”

       Id.(emphasis added).

       Tennessee Code Annotated section 50-6-901, et seq. applies to the construction
industry.

       Any person engaged in construction is required to carry workers’ compensation
insurance regardless of whether the provider employs fewer than five employees. Tenn.
Code Ann. § 50-6-902(a). The statutory provision provides as follows:

              (a) Except as provided in subsection (b), all construction
              services providers shall be required to carry workers'
              compensation insurance on themselves. The requirement
              set out in this subsection (a) shall apply whether or not the
              provider employs fewer than five (5) employees.

              (b) To the extent there is no restriction on applying for an
              exemption pursuant to § 50-6-903, a construction services
              provider shall be exempt from subsection (a) if the provider:

              …

              (4) Is a construction services provider performing work
              directly for the owner of the property; provided, however, that
              this subdivision (b)(4) shall not apply to a construction
              services provider who acts as a general or intermediate
              contractor and who subsequently subcontracts any of the
              work contracted to be performed on behalf of the owner;


       11
           This court has previously defined “subcontractor” in the construction context as “a
person who has a contract with the general or prime contractor to perform a portion of the work
that the general or prime contractor has already contracted with the owner to perform.” Winter v.
Smith, 914 S.W.2d 527, 539 (Tenn. Ct. App. 1995). This definition of “subcontractor” requires
the existence of at least two contracts-one between an owner and the general or prime contractor
and another between the general or prime contractor and the subcontractor. Id.
                                             - 10 -
              (5) Is a construction services provider building a dwelling or
              other structure, or performing maintenance, repairs, or
              making additions to structures, on the construction service
              provider’s own property; or

              (6) Is a provider whose employment at the time of injury is
              casual as provided in § 50-6-106.

              …

              (d) Nothing in this part shall be construed as exempting or
              preventing a construction services provider from carrying
              workers’ compensation insurance for any of its
              employees. The requirement set out in this subsection (d)
              shall apply whether or not the provider employs fewer than
              five (5) employees.

              Tenn. Code Ann. § 50-6-902 (2010 Pub.Acts, c. 1149, § 13,
              eff. March 1, 2011; 2011 Pub.Acts, c. 422, § 4.) (Section
              applicable to injuries occurring prior to July 1, 2014).

(emphasis added).

        When Lawson obtained the building permit, he affirmed in an affidavit that he was
“record owner of the property on which the work is to be performed.” (Emphasis
added.). He further asserted that he would “perform all work for which the building
permit was issued” and “agree[d] to ensure anyone hired must show proof of
license.” (Emphasis added.). Lawson acknowledged that he was “act[ing] as the
owner-builder of the project” and was “not hiring a construction manager to oversee
the project.” (Emphasis added.). An owner of property may be considered his own
principal contractor. Brown v. Canterbury Corp., 844 S.W.2d 134, 136-37 (Tenn. 1992)
(citing Stratton v. United Inter-Mountain Telephone Co., 695 S.W.2d 947, 952 (Tenn.
1985)). Lawson was serving as the general contractor.12 But was he Helton’s employer?

                                    Employer/Employee

      To establish that an employee-employment relationship existed, the claimant must
be an employee and not an independent contractor or a casual employee. Bargery v.

       12
          Any “person that owns property and constructs on the property single residences, farm
buildings or other buildings for individual use, and not for resale, lease, rent or other similar
purpose, is exempt from the requirements” of the licensing law. Tenn. Code Ann. § 62-6-
103(2)(A).
                                             - 11 -
Obion Grain Co., 785 S.W.2d 118, 121 (Tenn. 1990). The determination of whether an
individual is characterized as an employee or an independent contractor is a question of
law, Cromwell Gen’l Contractor, Inc. v. Lytle, 439 S.W.2d 598, 600 (Tenn. 1969), which
we review de novo with no presumption of correctness. Overstreet v. TRW Commercial
Steering Div., 256 S.W.3d 626, 630 (Tenn. 2008). No single aspect of a work
relationship is conclusive in making this determination, and in deciding whether a worker
is an employee or independent contractor, “the trier of fact must examine all relevant
factors and circumstances” of the relationship. Boruff v. CNA Ins. Co., 795 S.W.2d 125,
127 (Tenn. 1990).

       The following factors shall be considered in making the determination:

   (i)     The right to control the conduct of the work;
   (ii)    The right of termination;
   (iii)   The method of payment;
   (iv)    The freedom to select and hire helpers;
   (v)     The furnishing of tools and equipment;
   (vi)    Self-scheduling of working hours; and
   (vii)   The freedom to offer services to other entities.

Tenn. Code Ann. § 50-6-102(12)(D). See Murray v. Goodyear Tire & Rubber Co., 46
S.W.3d 171 (Tenn. 2001); Stratton, 695 S.W.2d 947 (Tenn. 1985); Barber v. Ralston
Purina, 825 S.W.2d 96 (Tenn. Ct. App. 1991).

       The factors are not absolutes that preclude examination of each work relation as a
whole and are no more than a means of analysis. Masiers v. Arrow Transfer & Storage
Co., 639 S.W.2d 654, 656-57 (Tenn. 1982) (citing Jackson Sawmill v. West, 619 S.W.2d
105 (Tenn. 1981)). While no single factor is determinative, the Tennessee Supreme
Court “has repeatedly emphasized the importance of the right to control, the relevant
inquiry being whether the right existed, not whether it was exercised.” Galloway v.
Memphis Drum Service, 822 S.W.2d 584, 586 (Tenn. 1991). Another factor that has
gained significance is the right of termination. Masiers, 639 S.W.2d at 656 (citing
Wooten Transports, Inc. v. Hunter, 535 S.W.2d 858 (Tenn. 1976)). “As noted in
Masiers, ‘the power of a party to a work contract to terminate the relation at will is
contrary to the full control of work activities usually enjoyed by an independent
contractor.’” Boruff, 795 S.W.2d at 127 (internal citation omitted).

      When an injured worker files a claim for a workplace injury, the burden of
proving that the worker is an independent contractor rather than an employee rests on the
employer. Galloway, 822 S.W.2d at 586; Jones v. Crenshaw, 645 S.W.2d 238, 240
(Tenn. 1983). Where there is any doubt as to whether the worker is an employee or an
independent contractor, the doubt must be resolved in favor of the former. Seals v. Zollo,
327 S.W.2d 41, 44 (Tenn. 1959).
                                         - 12 -
       Counsel for Helton argues that Lawson was the employer of the plaintiff:

                 [W]as Mr. Lawson required to carry worker’s compensation
                 on Mr. Helton at the time of this accident or to cover him
                 under the Tennessee Worker’s Compensation Act? The
                 answer is yes. He was a construction services provider. . . .

                 . . . [W]ith respect to the worker’s compensation, [Lawson]
                 was supposed to insure them under worker’s comp. If he
                 didn’t insure them under worker’s comp, then [Helton] gets
                 all his damages regardless of the fault. He can’t set up . . .
                 anything about Mr. Helton being at fault. . . .

        Looking to the plain language of the statutory provisions and upon reviewing the
building permit and other evidence of record, Lawson was serving as the general
contractor. What role did Housewright play? He was serving as an independent
contractor hired by Lawson. An independent contractor is “one who undertakes to
produce a given result without being in any way controlled as to the methods by which he
attains [a] result.” Galloway, 822 S.W.2d at 587 (internal citations omitted). Most of the
factors reveal that Housewright had the right to control the conduct of the work, the right
to schedule working hours, the freedom to select and hire helpers, and the right of
termination. An individual who contracts directly with the owner of the property is not a
“subcontractor” even if the owner holds himself out as, and performs the duties of, a
general contractor. Winter, 914 S.W.2d at 539-40. Thus, under the facts of this case,
Housewright was not a “subcontractor,” as he contracted directly with Lawson, the owner
of the property and general contractor.

       Helton sued Lawson as his employer instead of Housewright in tort “for damages
to be recovered as if [Workers’ Compensation Act] had not been enacted.” The jury
determined that Housewright, not Lawson, was the employer. As noted, we must “take
the strongest legitimate view of all the evidence in favor of the verdict, assume the truth
of all evidence that supports the verdict, allow all reasonable inferences to sustain the
verdict, and discard all countervailing evidence.” Barkes, 328 S.W.3d at 833. We find
that material evidence supports the determination of the jury that Helton was the
employee of the non-party independent contractor Housewright, rather than Lawson.

      “[T]he institution and prosecution to final judgment of a suit for damages [is] a
waiver of a right to claim compensation under [the Workers’ Compensation Law].”
Tenn. Code Ann. § 50-6-406(c). Thus, possibly applicable provisions of the Act such as
Tennessee Code Annotated section 50-6-914 are not applicable.13

       13
            Generally, the property owner who enters into a contract with an independent contractor
                                                - 13 -
                                        Negligence

        With regard to negligence, our Supreme Court has explained: “[A] negligence
claim requires a plaintiff to prove the following elements: (1) a duty of care owed by the
defendant to the plaintiff; (2) conduct by the defendant falling below the standard of care
amounting to a breach of the duty; (3) an injury or loss; (4) causation in fact; and (5)
proximate (legal) causation.” See, e.g., Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn.
1993). Duty is the legal obligation a defendant owes to a plaintiff to conform to the
reasonable person standard of care in order to protect against unreasonable risks of harm.
Cullum v. McCool, 432 S.W.3d 829, 833 (Tenn. 2013). The existence of a duty is a
question of law, but the elements of causation in fact and proximate cause are matters to
be resolved by the trier of fact. Hale v. Ostrow, 166 S.W.3d 713, 716-19 (Tenn. 2005).
Likewise, the determination of damages in a personal injury case is within the province
of the finder of fact. Grandstaff v. Hawks, 36 S.W.3d 482, 499 (Tenn. Ct. App. 2000).

       We have determined that non-party Housewright was an independent contractor
employed by Lawson. The general rule is that a premises owner owes an independent
contractor hired to perform work on the property a duty to provide a reasonably safe
place in which to work. Blair v. Campbell, 924 S.W.2d 75, 76 (Tenn. 1996). “This
general duty includes the specific responsibility of either removing, or warning an
independent contractor of, any hidden or latent dangers on the property.” Id. Ordinarily,
an employer is not liable for the negligence of an independent contractor. Pryor v.
Southbrook Mall, No. 02A01-9709-CV-00217, 1998 WL 802005, at *4 (Tenn. Ct. App.
Nov. 18, 1998).

       In premises liability cases, persons in control of real property have a duty to
exercise reasonable care under the circumstances to prevent injury to persons lawfully on
the premises. Johnson v. EMPE, Inc., 837 S.W.2d 62, 65 (Tenn. Ct. App. 1992). Under
Tennessee law, the employee of an independent contractor enjoys the status of an invitee
while performing work on the premises of the owner-contractee. Dempster Bros. Inc. v.
Duncan, 452 S.W.2d 902, 906 (Tenn. Ct. App. 1969). As a result of the employee’s
status as an invitee, the premises owner owes the employee “the duty to exercise
reasonable care to see that an employee has a reasonably safe place to work.” Id.


to have work performed on the owner’s property is not liable for compensation as a “statutory
employer” to the employees of the contractor. See Tolan v. Brown, No. 03501-9603-CH-0027,
1996 WL 654116 (Tenn. WC Panel Nov. 5, 1996). However, a property owner may, if the
owner undertakes some direct supervisory control over the work of another contractor’s
employee, be a “principal contractor” within the meaning of the section. Brown, 844 S.W.2d at
136-37 (Tenn. 1992); Acklie v. Carrier, 785 S.W.2d 355, 357-38 (Tenn. 1990).
                                           - 14 -
      In Johnson, we relied on the Tennessee Pattern Jury Instructions, Civil (2d ed.),
which state in pertinent part:

              An owner of premises who employs a contractor to perform
              work on the property, but who remains in control of the
              premises where the work is being done, owes to the
              employees of the contractor a duty to exercise ordinary care
              in the management of the premises in order to avoid exposing
              the employees to an unreasonable risk of harm.

              If, however, the contractor had complete control of the
              premises where the accident occurred and the owner had
              retained no control of that part of the premises except to the
              extent of determining if the work was being performed
              according to the contract, then the owner owes no duty of
              care to the employees of the contractor.

              The rule may be more concisely stated. The law places the
              duty upon the person in control of premises to exercise
              reasonable and ordinary care, under the circumstances, not to
              cause injury to one lawfully upon the premises. See Ruth v.
              Ruth, 372 S.W. 2d 285 (Tenn. 1963).

Johnson, 837 S.W.2d at 65 (citing T.P.I. – CIVIL 9.06 Duty to Workers – Control, Tenn.
Prac. Pattern Jury Instr. T.P.I. – Civil 9.06 (2d ed.)).

       The trial court properly laid out the law of negligence. Further, it specifically
addressed the fact that Housewright was “not a party to this lawsuit,” but that Lawson
“claims that . . . Housewright was at fault and has the burden of proving this fault.” The
court advised the jury that despite Housewright not being a party, “it is necessary that you
determine whether . . . Housewright was at fault and determine the percentage of fault, if
any, chargeable to him.”

       On appeal, we must give the verdict “the most favorable interpretation and give
effect to the intention of the jurors if that intention be permissible under the law and
ascertainable from the phraseology of the verdict.” Hogan v. Doyle, 768 S.W.2d 259,
263 (Tenn. Ct. App. 1988) (quoting Templeton v. Quarles, 374 S.W.2d 654, 660 (Tenn.
Ct. App. 1963)). The verdict must be upheld if, after examining it, “the court is able to
place a construction thereon that will uphold it.” Id. The jury found that Lawson was
only responsible for 10% of the negligence in this matter. Upon our review, we find that
material evidence supports the determination of the jury.

                                           - 15 -
                                         Damages

       The purpose of compensatory damages is to compensate a party for the loss of
injury caused by a wrongdoer’s conduct. Inland Container Corp. v. March, 529 S.W.2d
43, 44 (Tenn. 1975). The goal is to restore the injured party, as nearly as possible, to the
position the party would have been in had the wrongful conduct not occurred. Beaty v.
McCraw, 15 S.W.3d 819, 828-29 (Tenn. Ct. App. 1998).

       The party seeking damages has the burden of proving them. Walker v. Sidney
Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000). Damages may never be
based on speculation or conjecture. Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 703
(Tenn. Ct. App. 1999). However, damages become too speculative only when the
existence of damages is uncertain, not when the precise amount is uncertain. Church v.
Perales, 39 S.W.3d 149, 172 (Tenn. Ct. App. 2000). The evidence required to support a
claim for damages need only prove the amount of damages with reasonable certainty.
Overstreet, 4 S.W.3d at 703.

       Generally, a plaintiff in a negligence action is entitled to recover reasonable
expenses for medical examinations to determine if the plaintiff sustained injuries, even
where it is determined that he sustained no injury. Newsom v. Markus, 588 S.W.2d 883,
887 (Tenn. Ct. App. 1979). Recovery may be denied, however, for expenses that the jury
determines were unreasonable or unnecessary. Brown v. Chesor, 6 S.W.3d 479, 484
(Tenn. Ct. App. 1999).

       The jury’s duty to assess damages necessarily requires a determination of the
credibility of the witnesses at trial, and the jury is not bound to accept the medical
testimony presented. Baxter v. Vandenheovel, 686 S.W.2d 908, 912 (Tenn. Ct. App.
1984); see Karas v. Thorne, 531 S.W.2d 315, 317 (Tenn. Ct. App. 1975) (“The fact a
given amount is proven as undisputed medical expenses does not prove those expenses
were necessary.”). Additionally, when a physician’s opinion is based on statements
given him by the plaintiff as to when pain commenced, the plaintiff’s credibility may
weigh largely in a jury’s acceptance or rejection of expert medical testimony. See Baxter,
686 S.W.2d at 912.

       The jury form provided, inter alia, as follows:

              (… PROCEED TO QUESTION #7 AND DETERMINE THE
              PERCENTAGE OF FAULT, IF ANY, OF ALL PERSONS
              LISTED.)

              7. Considering all the fault at 100 per cent (100%), what
              percentage of fault do you attribute to the following?
                                           - 16 -
          A. Earl Lawson                 _____% (0-100%)
          B. Jimmy Wayne Helton          _____% (0-100%)
          C. Gene Housewright            _____% (0-100%)

                                                Total 100%

             (IF YOU FIND PLAINTIFF, JIMMY WAYNE HELTON,
             TO BE 50% OR MORE AT FAULT, STOP HERE, SIGN
             THIS FORM AND RETURN TO THE COURT.        A
             PLAINTIFF 50% OR MORE AT FAULT IS NOT
             ENTITLED TO RECOVER DAMAGES. HOWEVER, IF
             YOU FIND THAT PLAINTIFF IS LESS THAN 50% AT
             FAULT, PROCEED TO QUESTION #8.)

             8       Decide the total amount of damages sustained by the
             plaintiff, Jimmy Wayne Helton, for the categories of damages
             below. Do not reduce those damages by any percentage of
             fault you may have assigned to plaintiff.          It is the
             responsibility of the Judge, after you return your verdict, to
             reduce the damages you award, if any, by the percentage of
             fault you assign to plaintiff. What amount of damages, if any,
             do you find were sustained by plaintiff, Jimmy Wayne
             Helton?

             $ _______:      Past and Present Medical, Hospital &
             Pharmaceutical Expenses
             $ _______: Past Loss of Wages
             $ _______: Past & Present Physical & Mental Pain &
             Suffering
             $ _______: Loss of Enjoyment of Life

      As to fault, the jury found as follows:

          D. Earl Lawson                 10% (0-100%)
          E. Jimmy Wayne Helton          30% (0-100%)
          F. Gene Housewright            60% (0-100%)

As to the amount of damages, the jury found as follows:

             $ 0: Past and Present Medical, Hospital & Pharmaceutical
             Expenses
             $ 0: Past Loss of Wages
                                     - 17 -
              $ 0: Past & Present Physical & Mental Pain & Suffering
              $ 0: Loss of Enjoyment of Life

        The issues before the jury in this case were whether Helton sustained injuries that
were proximately caused by the accident, and the amount of damages to which he was
entitled. The jury determined that Helton was entitled to no damages. On appeal, Helton
asserts there is no material evidence to support the jury’s award of “zero” damages. He
submits that the jury award of “zero” damages is not supported where the testimony is
that Helton suffered an injury requiring medical evaluation and treatment.

       Taking the strongest legitimate view of all the evidence in favor of the verdict,
assuming the truth of all that tends to support it, allowing all reasonable inferences to
sustain the verdict, and discarding all to the contrary, as we must, we find that there was
not material evidence to support an award of zero damages. It is obvious that Helton did
incur serious injuries as a result of the accident, notwithstanding the jury’s finding of $0
damages in response to question #8. In similar personal injury cases where the jury has
apparently overlooked or ignored uncontroverted proof that an injury was sustained,
thereby returning a verdict of zero or other inadequate amount of damages, we have
determined that the jury’s verdict was not supported by material evidence and
accordingly remanded the cases for a new trial on the issue of damages only. See Taylor
v. Smith, No. E2002–01158–COA–R3–CV, 2003 WL 21487112 at *3-4 (Tenn. Ct. App.
June 24, 2003); Dent v. Holt, No. 01–A–01–9302–CV–00072, 1994 WL 440916 at *2–3
(Tenn. Ct. App. Aug.17, 1994). In this case, there is no material evidence to support the
jury’s award of damages in the amount of $0. We vacate the verdict and remand for
further consideration on the issue of damages.


                                   V. CONCLUSION

       The jury’s verdict awarding zero damages for Helton’s claims of personal injury is
vacated and the case is remanded for further action consistent with this opinion. The
jury’s verdict is affirmed in all other aspects. Costs on appeal are assessed to the
Appellee, Earl Lawson.



                                                    _________________________________
                                                    JOHN W. MCCLARTY, JUDGE




                                           - 18 -
