                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                   November 18, 2015 Session

           MELANIE JONES, INDIVIDUALLY AND ON BEHALF OF
          MATTHEW H. v. SHAVONNA RACHELLE WINDHAM, ET AL.

                   Direct Appeal from the Circuit Court for Shelby County
                      No. CT-0044-2811     Robert Samual Weiss, Judge


                   No. W2015-00973-COA-R10-CV – Filed March 11, 2016


BRANDON O. GIBSON, J., dissenting

        I must respectfully dissent from the majority‟s Opinion, and I believe Tennessee
should adopt the preemption rule. In my view, once an employer has admitted
respondeat superior liability for an employee‟s negligence, it is improper to allow a
plaintiff to proceed against the employer on a negligent hiring or negligent supervision
theory of liability.

        The history of the concept of negligent hiring is instructive and is aptly described
as follows:

          The tort of negligent hiring emerged initially as an exception to the
          common law fellow servant rule. The fellow servant rule traditionally
          absolved employers from the liability they would otherwise face for torts
          committed among employees. For example, early employers often escaped
          liability for workplace violence and unlawful harassment among their
          employees. To ameliorate the harshness of the fellow servant rule, courts
          began allowing causes of actions for the negligent hiring of employees in
          the early 1900s. Where employees were previously unable to pursue an
          action against their employers for the actions of fellow employees,
          negligent hiring now allowed them to seek such recourse.

          Courts first recognized the cause of action of negligent hiring in this initial
          form in Ballard’s Administratrix v. Louisville & Nashville Railroad Co. in
          1908.[1] [Ballard’s Administratrix v. Louisville & Nashville Railroad Co.,
1
    In Ballard, an employee played a prank on another employee by using a high pressure air hose. The
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          110 S.W. 296 (Ky. 1908)]. In this case, the Kentucky Supreme Court held
          that “an employer could be liable for negligently hiring an employee who
          caused injury to a fellow employee if the act that caused the injury was
          within the employee‟s scope of employment.” Courts subsequently
          expanded the tort to include employee actions outside the scope of
          employment.

          The exception to the fellow servant rule resulting from Ballard and other
          decisions was a logical extension of a widely recognized common law
          doctrine requiring employers to ensure the safety of the workplace for their
          employees. Subsequently, this duty progressed from a duty to maintain a
          safe work place to “providing safe employees because a dangerous fellow
          employee was seen as being equally as dangerous as a defective machine.”
          With time, courts also began to extend the cause of action beyond the realm
          of employees “to create a duty between employers and third parties based
          upon the third party‟s relationship with the employer.” For example, where
          a department store employee pushed and injured a store patron, a Missouri
          court held that

                  [a] merchant owes to his customer, who comes upon his
                  premises by invitation, the positive duty of using ordinary
                  care to keep the premises in a reasonably safe condition for
                  use by the customer in the usual way; and this doubtless
                  includes the duty of using ordinary care to employ competent
                  and law-abiding servants.[2]

          Thus, because of the relationship between the plaintiff-customer and the
          defendant-department store, the court held that the department store had a
          duty to exercise ordinary care when hiring employees. Courts further
          expanded the doctrine in subsequent cases to landlords and their employees
          and to actions by employees beyond the immediate area of the employer‟s
          control. . . . Today, the tort of negligent hiring remains one of the fastest

result of the prank was the death of the employee upon whom the prank was played. The employer‟s
managers were aware of the dangerous nature of the high pressure air hose, and they were aware
that the playful employee had used it to play pranks on others. The managers took no action to
warn against, restrain, or prevent this conduct. The court held that the employer would be liable for
such actions under the theory of respondeat superior but only if those actions occurred within the scope of
the employee‟s employment. However, the court implied that an employer could be liable, in certain
situations, for the negligent hiring of an employee. See Ballard, 110 S.W. at 296.
2
    Priest v. F.W. Woolworth Five & Ten Cent Store, 62 S.W.2d 926, 927 (Mo. 1933).
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       growing areas of tort litigation.

Morgan, Fife, Predator in the Primary: Applying the Tort of Negligent Hiring to
Volunteers in Religious Organizations, 2006 BYU L. REV., 569, 578-79 (2006)
(internal footnotes omitted).

        In Tennessee, the torts of negligent hiring, supervision, and retention are based on
the principle that a person conducting an activity through employees is liable for harm
resulting from negligently employing improper persons or instrumentalities in the work
involving risk of harm to others. Gates v. McQuiddy Office Prods., No. 02A01-9410-
CV-00240, 1995 WL 650128, at *1 (Tenn. Ct. App. Nov. 2, 1995). Therefore, in order
for an employer to be held liable for negligent hiring or negligent supervision, a plaintiff
must show that the employee who was negligently hired or supervised by the employer
caused some injury. Id. The California Supreme Court, in adopting the preemption rule,
described the nexus that exists between an employer‟s negligent entrustment or negligent
hiring and its employee‟s own negligence:

       No matter how negligent an employer was in entrusting a vehicle to an
       employee, however, it is only if the employee then drove negligently that
       the employer can be liable for negligent entrustment, hiring, or retention.
       [Jeld-Wen, Inc. v. Superior Court (2005), 131 Cal.App.4th 853, 863-864,
       32 Cal.Rptr.3d 351]. If the employee did not drive negligently, and thus is
       zero percent at fault, then the employer‟s share of fault is zero percent.
       That is true even if the employer entrusted its vehicle to an employee whom
       it knew, or should have known, to be a habitually careless driver with a
       history of accidents.

Diaz v. Carcamo, 253 P.3d 535, 543 (Cal. 2011). Where an employer has already
admitted liability for the resulting harm through respondeat superior, a negligent hiring
claim can impose no additional liability. To illustrate, if the negligent conduct of an
employee caused a plaintiff $20,000 in damages and the employer admitted vicarious
liability for the actions of the employee, the employer would already be liable for the full
amount of harm caused by the employee. As the Missouri Supreme Court noted in
McHaffie v. Bunch, 891 S.W.2d 822, 826 (Mo. 1995), “[t]he liability of the employer is
fixed by the amount of the liability of the employee.”

       I disagree that adoption of the preemption rule runs afoul of Tennessee‟s
comparative fault principles. Again, an employer‟s admission of vicarious liability
imputes the full amount of the employee‟s liability to the employer. Additional theories
of negligence serve no real purpose. As the California Supreme Court went on to
explain:
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        Comparative fault “is a flexible, commonsense concept” adopted to enable
        juries to reach an “„equitable apportionment or allocation of loss.‟” (Knight
        v. Jewett (1992) 3 Cal. 4th 296, 314, 11 Cal. Rptr.2d 2, 834 P.2d 696.) If, as
        here, an employer offers to admit vicarious liability for its employee‟s
        negligent driving, then claims against the employer based on theories of
        negligent entrustment, hiring, or retention become superfluous. To allow
        such claims in that situation would subject the employer to a share of fault
        in addition to the share of fault assigned to the employee, for which the
        employer has already accepted liability. To assign to the employer a share
        of fault greater than that assigned to the employee whose negligent driving
        was a cause of the accident would be an inequitable apportionment of loss.

Diaz, 353 P.2d at 543-544.

        Here, the Defendant Employers admitted vicarious liability for any liability
attributable to Ms. Windham. Jones‟s additional negligence claims create no additional
liability, regardless of the amount of fault that might have been apportioned between the
Defendant Employers and Ms. Windham. In this case, under the comparative fault
principles of Tennessee and respondeat superior, if a jury finds that Ms. Windham drove
negligently, the Defendant Employers will be liable for any damages not apportioned to
the plaintiff due to his own negligence.

      I disagree with the majority‟s reliance on Harper v. Churn, 83 S.W.3d 142 (Tenn.
Ct. App. 2001), as I do not think it is instructive to the facts presented in the case at bar. 3

3
 In addition to relying on Harper v. Churn, 83 S.W.3d at 142, Appellant also argues that the Tennessee
Supreme Court‟s opinion in West v. East Tennessee Pioneer Oil Co., 172 S.W.3d 545, 555 (Tenn. 2005),
establishes that Tennessee courts consider negligent hiring, retention, supervision, training, and
entrustment as separate and distinct claims from vicarious liability under respondeat superior. In West,
the Tennessee Supreme Court noted that it “has recognized that negligent entrustment and vicarious
liability are separate and distinct concepts.” West, 172 S.W.3d at 555. I do not disagree that the two
theories are separate and distinct concepts. Being separate and distinct concepts does not necessarily
mean that the two are always separate and distinct claims. The West court was not addressing the
question at issue in the case at bar but instead was addressing whether a gas station‟s sale of alcohol to an
obviously inebriated driver constituted negligent entrustment after that driver injured another motorist.
The plaintiffs filed suit, alleging that the gas station was liable for their injuries based on the theories of
negligence, negligence per se, and negligent entrustment in furnishing the driver with gasoline. The West
court drew a distinction between negligent entrustment and vicarious liability because of apparent
confusion between the two theories in other courts. Id. at 555.

        Cases . . . such as [Brown v. Harkleroad, 287 S.W.2d 92 (Tenn. Ct. App. 1955)] appear
        to misconstrue the basic premise underlying negligent entrustment by confusing it with
        the theory of vicarious liability. See, e.g., Broadwater v. Dorsey, 688 A.2d 436, 441
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In Harper, the plaintiffs and defendants were traveling together on a church trip in a
rented vehicle at the time of the collision. Id. at 143. The plaintiffs claimed that Churn
was negligent in his operation of the vehicle and that the church‟s pastor was either
vicariously liable for their injuries or was liable under a theory of negligent entrustment.
Id. One of the issues on appeal was whether the trial court properly granted a directed
verdict in the pastor‟s favor. Id. at 146. Again, the plaintiffs offered two theories as to
the pastor‟s liability: negligent entrustment and vicarious liability. Id. This Court first
addressed plaintiffs‟ negligent entrustment claim and determined that the plaintiffs failed
to establish the first element of a negligent entrustment claim – that the pastor had “the
right to control the vehicle or that [the pastor] entrusted the vehicle to Mr. Churn.” Id. at
146-147.4 The court also examined plaintiffs‟ claim of vicarious liability and held that
“the evidence does not indicate that [the pastor] and Mr. Churn had an agency or
employment relationship that would impose liability on [the pastor] for Mr. Churn‟s
acts.” Id. at 148.

        In Harper, the church pastor did not admit vicarious liability, which is, in my
opinion, a paramount distinction between that case and the case presently before us. The
torts of negligent hiring, negligent supervision, and negligent retention should only
provide plaintiffs with an avenue of recovery from an employer for the tortious actions of
employees that fall outside of those employees‟ scope of employment. In other words,
the torts should only provide relief outside of the relief afforded by respondeat superior.
Certainly, when employers do not admit respondeat superior liability, plaintiffs should
be entitled to pursue alternative theories of recovery, including negligent hiring,
entrustment, and/or supervision. But when, as here, an employer admits respondeat
superior liability, to the extent liability exists at all, a plaintiff should not have those
additional and unnecessary alternative theories of recovery available.




        (Md. 1997) (holding that “without the right to permit or prohibit the use of the chattel at
        the time of the accident, an individual cannot be liable for negligent entrustment”).

Id. West clarified that liability for negligent entrustment is founded on the supplier‟s direct negligence in
entrusting a chattel to an incompetent user, while vicarious liability relies upon the supplier‟s right to
control the chattel at the time the entrusted misuses it. Id. This clarification allowed a claim of negligent
entrustment against the gas station owner although the gas station owner clearly had no right to control
the gasoline after selling it. Id. However, West did not involve a claim of vicarious liability, nor did it
involve any allegations of respondeat superior. The discussion in West is, therefore, inapplicable to the
present case.
4
  The court also noted that the plaintiffs “failed to provide sufficient evidence to establish the second and
third elements of negligent entrustment. There is no evidence in the record to establish that Mr. Churn
was incompetent to drive the Suburban. Further, the record fails to indicate that [the pastor] had
knowledge of any incompetency at the time of the purported entrustment of the vehicle.” Harper at 147.
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        Jones argues that the Defendant Employers‟ proposed preemption rule creates the
likelihood of a situation where a jury faced with allocating the negligence between a
single plaintiff and single defendant may just “split the baby,” thereby preventing the
plaintiff‟s recovery under Tennessee‟s modified comparative fault principles. The
majority agrees with Jones‟s assertion, but I do not believe Tennessee‟s comparative fault
principles preclude adoption of the preemption rule. On the contrary, our supreme court,
in McIntyre v. Balentine, directed that “[i]n all trials where the issue of comparative fault
is before a jury, the trial court shall instruct the jury on the effect of the jury‟s finding as
to the percentage of negligence as between the plaintiff or plaintiffs and the defendant or
defendants.” McIntyre v. Balentine, 833 S.W.2d 52, 57 (Tenn. 1992); see also 8 Tenn.
Prac. Pattern Jury Instr. T.P.I.-Civil 3.50 (2015 ed.)(“A party claiming damages will be
entitled to damages if that party‟s fault is less than 50% of the total fault in the case. A
party claiming damages who is 50% or more at fault, however, is not entitled to recover
any damages whatsoever.”). Additionally, the supreme court noted, “The attorneys for
each party shall be allowed to argue how this instruction affects a plaintiff‟s ability to
recover.” Id.

       Some jurisdictions adopting the preemption rule have created an exception that
allows a plaintiff to assert both theories of liability if a valid claim for punitive damages
is presented. McHaffie, 891 S.W.2d at 826; Durben v. Am. Materials, Inc., 503 S.E.2d
618, 619 (Ga. 1998); Clooney v. Geeting, 352 So.2d 1216, 1220 (Fla. Dist. Ct. App.
1977). The reason for allowing such an exception is that there are instances where
allegations against the employer are sufficiently reprehensible to allow a claim for
punitive damages to go before a jury. Because these punitive damages claims relate to
the employer‟s conduct and not the employee‟s negligence, the punitive damages
exception allows a plaintiff to proceed under both theories of liability. See Durben, 503
S.E.2d at 619.

        Generally, I believe Tennessee should adopt the punitive damages exception to the
preemption rule. In this particular case, however, I am unable to determine whether the
punitive damages exception would apply. Because the trial court‟s order did not comply
with Tennessee Rule of Civil Procedure 56.04 by stating legal grounds for its denial of
partial summary judgment with respect to the punitive damages claim, were we adopting
the preemption rule, we would be unable to appropriately address whether the punitive
damages exception applies.

       This case presents an issue of first impression in Tennessee. I acknowledge that
there are good arguments for the majority‟s adoption of the non-preemption rule. I
simply disagree that current Tennessee law requires adoption of the non-preemption rule.
Further, I think adoption of the preemption rule would encourage employers to take

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responsibility for the negligent conduct of their employees while still appropriately
compensating plaintiffs for injuries.



                                             _________________________________
                                             BRANDON O. GIBSON, JUDGE




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