                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  February 21, 2006 Session

              GORDON C. COLLINS v. BARRY L. ARNOLD, ET AL.

                      Appeal from the Circuit Court for Davidson County
                       No. 02C-807     Hamilton V. Gayden, Jr., Judge


                  No. M2004-02513-COA-R3-CV - Filed November 20, 2007


The plaintiff was severely injured when the automobile he was driving was struck by a car driven
by an impaired driver who was killed in the collision. The plaintiff’s suit named as defendants the
estate of the deceased driver, the nightclub from which the driver departed immediately before the
accident, and the company which provided security services to the bar. The jury declined to find the
nightclub liable for serving alcoholic beverages, thereby making the only available basis for liability
negligence in controlling the conduct of the deceased driver so as to prevent harm to others. The
jury heard evidence that employees of the club and the security company had made efforts, albeit
unsuccessful, to prevent the driver from leaving the premises in an intoxicated state. The jury found
the plaintiff’s damages resulted from negligence and amounted to over $1,162,000. They allocated
30% of the fault to the deceased driver, 30% to the security company, and 40% to the club’s owner.
The jury also awarded punitive damages of $1.5 million against the club’s owner and $500,000
against the security company. The club owner appealed. Because the jury was not instructed as to
the conditions for liability under an assumed, rather than imposed, duty of care as established in
Section 324A of the Restatement of Torts, we must reverse the verdict and judgment thereon. For
separate and independent reasons, we reverse the award of punitive damages, because the conduct
of the bar’s personnel in attempting to prevent its adult customer from driving while impaired did
not reach the level of recklessness necessary to sustain a punitive award. Additionally, we find no
error in evidentiary rulings or other procedures in the trial court that justify reversal.

           Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                                Reversed and Remanded

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which FRANK G. CLEMENT, JR., J.,
joined. WILLIAM C. KOCH , JR., P.J., M.S., filed a concurring opinion in which FRANK G. CLEMENT,
JR., J. joined.

J. Randolph Bibb, Jr., Brigid M. Carpenter, G. Douglas Tackett, Jr., Nashville, Tennessee, for the
appellants Barry L. Arnold, et al.

William D. Leader, Jr., Joseph G. DeGaetano, Nashville, Tennessee, for the appellee, Gordon C.
Collins.
                                         OPINION
                                         I. BACKGROUND

        This lawsuit arose from a tragic accident that occurred at about 11:15 p.m. on October 24,
2001. Brett Arnold, who had just reached the age of twenty-one, was driving a Jeep Grand Cherokee
at high speed on Briley Parkway in Nashville. His vehicle crossed the median and collided violently
with a Nissan Maxima driven by the plaintiff, Gordon Collins. Brett Arnold died in the collision.
Gordon Collins was severely injured. He had to undergo surgery for hip and facial fractures, and
he underwent months of painful rehabilitation. He ultimately had a good recovery, but residual pain
and impairments to his vision and mobility have permanently restricted his ability to practice his
profession as a photographer.

        Mr. Collins filed a timely complaint against the estate of Brett Arnold and against Brett
Arnold’s father, Barry Arnold, who was the registered owner of the vehicle and is the executor of
his son’s estate. The complaint asked for both compensatory and punitive damages. Mr. Collins
subsequently learned that shortly before the accident Brett Arnold had been a patron of a bar in
Madison named Denim & Diamonds. An autopsy on Brett Arnold’s body revealed a blood alcohol
concentration of 0.119%, well in excess of the legal limit.

        Mr. Collins amended his complaint, adding Graham Brothers Entertainment of Nashville
d/b/a Denim & Diamonds (hereafter “Denim & Diamonds” or “appellant”) as a defendant. The
amended complaint alleged that the nightclub’s employees had sold alcoholic beverages to a visibly
intoxicated Mr. Arnold, making Denim & Diamonds liable under Tennessee Code Annotated § 57-
4-203(c)(1), part of the Dram Shop Act. It also alleged that Denim & Diamonds was guilty of
negligence and recklessness in the supervision of its employees for allowing an intoxicated person
to leave its premises behind the wheel of an automobile.

        Denim & Diamonds filed an answer to the complaint, in which it asserted several affirmative
defenses, including contributory negligence, comparative fault, and lack of causation. An
amendment to the answer named Tennessee Protection Agency (“TPA”) as a potential non-party
tortfeasor. TPA was a private company that had been hired to provide security for the club. Denim
& Diamonds alleged that Brett Arnold had been allowed to drive off in an intoxicated state because
of the negligence of one of TPA’s employees. Mr. Collins amended his complaint once again and
named TPA as an additional defendant.

                                       II. THE JURY TRIAL

        At the outset of the trial, Barry Arnold admitted that Brett Arnold had been negligent,
although he disputed the severity of Mr. Collins’ injuries. The basic facts of the accident were then
established through the testimony of a police officer and a motorist who had called 911 after
witnessing the collision. The officer testified that Mr. Arnold’s Jeep Cherokee had apparently
sideswiped a concrete barrier and a guard rail which separated the two directions of travel on the
parkway, then hit a road sign and a utility pole before crossing a grassy median and striking Mr.




                                                -2-
Collins’ car going the other way. According to his testimony, there was nothing Mr. Collins could
have done to avoid the accident.1

        A forensic toxicologist interpreted the results of the autopsy performed on Brett Arnold, as
well as the toxicology reports that were entered into evidence. He testified that the reported blood
alcohol level of 0.119% showed that Arnold was intoxicated due to the influence of alcohol at the
time of death.2 He also testified that a man of Mr. Arnold’s size (217 pounds) would have had to
consume at least six to eight 12-ounce beers or an equivalent amount of alcohol over a period of
about an hour in order to reach that level of intoxication.

        The post-mortem tests also indicated the presence of metabolites of Valium and Xanax in the
decedent’s blood and urine, in quantities indicating abuse of those drugs. According to the
toxicologist, the concentration and distribution of the metabolites showed that Mr. Arnold had taken
those drugs six or more hours before his death. Under cross-examination, he acknowledged that Mr.
Arnold might still have been feeling the effects of the drugs at the time of the accident, despite the
passage of time. He further testified that the combination of those drugs with alcohol could have
increased Mr. Arnold’s impairment.

       The witnesses to the events that occurred on the premises of Denim & Diamonds prior to the
accident gave generally consistent accounts of most of those events, and we summarize them here.
The proof showed that Denims & Diamonds was one of thirty-three clubs operated by Graham
Brothers Entertainment. Denim & Diamonds is a large operation (30,000 to 40,000 square feet) with
seven different bars, each with a separate entertainment theme and each in its own operating area.
Uniformed security guards employed by defendant TPA patrol the premises and maintain order as
necessary. The general manager of Denim & Diamonds has the authority to deploy the guards as
he judges most effective, and he notifies TPA as to how many to send on any particular night.

       On the night in question, the establishment was offering its customary long neck beer special.
Patrons could pay $6 and then drink an unlimited number of long neck bottles of beer between the
hours of 6:00 p.m. and 11:00 p.m. Brett Arnold was one of about 500 customers patronized Denim
& Diamonds during the course of that night. Although it is unclear when he arrived at the club, he
and another patron named Walkup got into an argument at around 10:00 p.m. After some hostile
words passed between them, Mr. Arnold allegedly lifted a beer bottle in a threatening manner, and
Mr. Walkup hit Mr. Arnold in the face with his fist. Mr. Arnold fell to the floor.

        A security guard seized Mr. Walkup and brought him to the office of Mark Gangwer, the
general manager of Denim & Diamonds. Brett Arnold had been knocked unconscious, and two
security guards tried to rouse him. After a minute or two he regained consciousness. He was woozy

         1
           Because the facts of the accident and the extent of Mr. Collins’ injuries are not in dispute and not relevant to
the issues on appeal, we need not recount the detailed testimony about the accident itself.
         2
          The autopsy was performed eight or eight-and-a-half hours after Mr. Arnold’s death. The toxicologist testified
that with the cessation of circulation, metabolism and elimination that accompanies death, the blood alcohol
concentration would have remained about the same as it was at the time of death.

                                                           -3-
and unsteady on his feet, and he needed the help of both guards to walk into the office of the
manager.

        Mr. Gangwer talked to both patrons and determined that neither wanted to press charges
against the other. Mr. Walkup was told that he could go, and he left with his friends. However, it
was apparent that Mr. Arnold was in no condition to drive; he was fidgety and nervous, and he had
apparently told one security guard that he was not intoxicated but had been taking Xanax. The
manager testified that he appeared to be under the influence of something other than alcohol and that
it took a while for him to calm down.

       The manager told Mr. Arnold he could not drive himself home and proposed several other
possible options. Mr. Arnold was told that he could get a friend to drive him home, take a taxi
(which Denim & Diamonds would pay for), or Mr. Gangwer could call a Metro police officer and
Mr. Arnold could get a ride from him.3

        Mr. Gangwer’s offers were consistent with a set of printed policies that Denim & Diamonds
followed for dealing with excessive intoxication by their patrons. One policy was to forbid
employees from allowing anyone who was obviously intoxicated to be admitted to the premises.
Another was to prevent intoxicated patrons from driving away while under the influence. Incident
reports were supposed to be prepared to document problems with patrons, such as those arising from
attempts to enforce those policies.

         Mr. Gangwer testified that while Mr. Arnold was in his office, he made several calls to locate
a friend or relative who would be willing to drive him home, but with no success. Mr. Arnold
initially resisted the idea of a taxi because he did not want to leave his vehicle behind. However,
after about 45 minutes in the office, he finally agreed. The manager called for a taxi, and when it
arrived, he led Mr. Arnold out to the front of the building.

        Mr. Arnold told Mr. Gangwer that he needed to get a few things out of his car. The manager
used his lapel microphone and earpiece radio to call Aimee Kirby to escort Mr. Arnold to his car.
She was one of four security guards on duty that night and was supervising the others. According
to Ms. Kirby’s testimony, Mr. Gangwer told her that Mr. Arnold needed a safe ride, but did not give
her any details as to the reason he was being removed from the club. The manager then went back
into the building. Ms. Kirby said that Mr. Arnold did not look like he was in a very good mood and
that he seemed to be impaired, but he was not acting in an aggressive way.

       At first, Mr. Arnold could not find his car, and had to use his key alarm to locate it. Every
parking space in the vicinity of Mr. Arnold’s car was filled, and there was only enough room for one
person to walk sideways between the parked vehicles. Aimee Kirby testified that she followed Mr.


         3
           A security guard testified that this last choice was mostly offered to scare the customer into choosing one of
the other options. The management did not like having the police come to the premises because it was considered bad
for business.



                                                          -4-
Arnold towards his car. He opened the driver’s side door, and as Ms. Kirby approached, he put his
hands on her and pushed her down to the ground.4

        Mr. Arnold then got into the car, locked the door, and started the engine. Ms. Kirby rose to
her feet and tried to open the car door, but could not. She then ran to the rear of the car to get the
license number, but Mr. Arnold threw the car into reverse, almost hitting her. She jumped out of the
way “and pretty much had to roll underneath another car to keep him from hitting me.” With brakes
squealing and the vehicle fishtailing, he raced out of one of the four exits of the parking lot. Ms.
Kirby did not get the license number and did not see in which direction he went. She then told Mr.
Gangwer what had happened. He decided there was no point in calling the police to report the
incident because “. . . there’s nothing else we can do. He’s gone.”

        The plaintiff called William Barton Butler as an expert witness. Mr. Butler is the founder
of Rock Solid Security, a security agency with about 200 employees. He testified that the employees
of Denim & Diamonds and TPA had committed numerous errors in the way they dealt with Mr.
Arnold and that they had failed to follow sound security practices. Among other things, he claimed
that Mr. Gangwer should have taken control of Mr. Arnold’s car keys at the outset and should have
conveyed more information to Aimee Kirby as to the reasons Mr. Arnold was being removed from
the property, including the fact that he had been involved in a fight and had admitted to using drugs.

         He further stated that two people should have escorted the customer to his car, both to
maintain control over him and to provide for an additional eyewitness to protect the company from
liability in the event of a later claim of mishandling or of theft of property from the car. He also
testified that Mr. Arnold should never have been allowed to enter the car from the driver’s side. The
security guard should either have retrieved whatever item was needed herself or made Mr. Arnold
access the car from the passenger side. Finally, he stated that the management should have called
the police after Mr. Arnold fled from the parking lot.

        Charles Grider, the owner of TPA, testified as to his own opinion of the proper way to deal
with a situation like that presented by Mr. Arnold. His testimony indicated that his agency had about
as many employees as Rock Solid Security, but that it did more nightclub work. He testified that
it would be an unsound practice to take a customer’s car keys away from him. He contended that
such an act would be illegal because it would amount to theft and that it would leave the guard
vulnerable to later accusations of tampering with the customer’s car.

       The testimony of several of TPA’s employees closely echoed Mr. Grider’s position.
However, the deposition testimony of one security guard read into evidence contradicted this
testimony. That witness testified that Denim & Diamond’s usual practices included taking an


         4
           An incident report filled out by Ms. Kirby that evening made no mention of her being pushed down by Mr.
Arnold. The plaintiff first heard of the alleged assault when taking Ms. Kirby’s deposition over a year later. Under
questioning at trial, Ms. Kirby explained the discrepancy by saying that the incident left her unhurt, without any cuts
or bruises, and that because she was a female, she thought the other guards and the management would not take her
seriously if they knew that a drunk had been able to successfully overpower her.

                                                         -5-
intoxicated customer’s keys away in the security office and holding onto them until he entered the
taxi that had been called for him.

        The jury found that Mr. Collins’ damages amounted to $1,162,335.57 and that negligence
by all three defendants contributed to Mr. Collins’ injuries. Fault was apportioned among the
defendants as follows: Brett Arnold, 30%; Denim & Diamonds, 40%; and TPA, 30%. The jury
declined to find that Denim & Diamonds had been guilty of a violation of the Dram Shop Act. The
jury also found that the plaintiff was entitled to punitive damages from both Denim & Diamonds and
TPA.

        The court conducted an additional hearing on punitive damages. At the conclusion of that
hearing, the jury found that the plaintiff was entitled to punitive damages of $1.5 million against
Denim & Diamonds and $250,000 against TPA. These two defendants had earlier filed motions for
directed verdict on punitive damages, and they renewed those motions after the jury verdict was
announced. The trial court denied the motions and affirmed the awards. A subsequent motion for
new trial was likewise denied. This appeal followed.

         On appeal, Denim & Diamonds challenges the allocation of liability to it on the grounds that
the jury instruction incorrectly led the jury to hold it to a higher standard of care than the law
required and that the actual apportionment of fault has no basis in the evidence. Denim & Diamonds
also contends that the jury should not have been permitted to consider awarding punitive damages
and/or that the trial court should not have affirmed the award because the facts of the case did not
rise to the level required for such an award. Additionally, Denim & Diamonds objects to specific
evidence whose erroneous introduction, it asserts, had a prejudicial effect on the verdict.

                                   III. THE BASIS FOR LIABILITY

        Necessary to an analysis of the issues raised herein is a clear understanding and identification
of the basis for the jury’s finding of liability on the part of Denim & Diamonds. The plaintiff alleged
various negligent acts as well as a violation of Tennessee’s Dram Shop Act, which was, essentially,
a claim that Denim & Diamonds negligently sold alcohol to an intoxicated Mr. Arnold.

        Tennessee Code Annotated § 57-10-101 codifies the common law rule that an individual who
furnishes alcohol to another is not liable for injuries resulting from the other’s intoxication. Biscan,
160 S.W.3d at 473. An exception to this general rule, however, exists that applies to sellers of
alcohol beverages, “dram shops,” in certain specified situations. In order to find a party liable for
injuries resulting from selling alcoholic beverages, a plaintiff must meet the standard described in
Tenn. Code Ann. § 57-10-102, which provides as follows:

       Notwithstanding the provisions of § 57-10-101, no judge or jury may pronounce a
       judgment awarding damages to or on behalf of any party who has suffered personal
       injury or death against any person who has sold any alcoholic beverage or beer,
       unless such jury of twelve (12) persons has first ascertained beyond a reasonable



                                                  -6-
       doubt that the sale by such person of the alcoholic beverage or beer was the
       proximate cause of the personal injury or death sustained and that such person:

       (1) Sold the alcoholic beverage or beer to a person known to be under the age of
       twenty-one (21) years and such person caused the personal injury or death as the
       direct result of the consumption of the alcoholic beverage or beer so sold; or

       (2) Sold the alcoholic beverage or beer to an obviously intoxicated person and such
       person caused the personal injury or death as the direct result of the consumption of
       the alcoholic beverage or beer so sold.

        Accordingly, for a judgment to be entered against Denim & Diamonds on the claim based
on sale of alcohol to Brett Arnold, the jury was required to find “beyond a reasonable doubt” that Mr.
Arnold was obviously intoxicated and the sale of alcohol to him was the proximate cause of Mr.
Collins’ injuries. In the case before us, the Jury Verdict Form posed the relevant question:

       Do you find beyond a reasonable doubt that Denim & Diamonds sold alcoholic
       beverages to Mr. Arnold while he was obviously intoxicated and that Mr. Arnold
       caused injury to Gordon Collins as the direct result of his consumption of the
       alcoholic beverages so sold?

               Yes __________                          No __________

         While the jury answered all of the other questions on the Jury Verdict Form, no answer was
provided by the jury to this particular question. It was left blank. Therefore, the jury did not make
the affirmative finding required by the statute and, consequently, pursuant to Tenn. Code Ann. § 57-
10-102, a judgment awarding damages against Denim & Diamonds for injuries resulting from the
sale of alcoholic beverages could not be entered. In other words, Denim & Diamonds was not liable
on the claim based on the Dram Shop Act.

        The jury did indicate that it found Denim & Diamonds negligent and such negligence was
the proximate cause of plaintiff’s injuries. Since the finding of negligence cannot pertain to the sale
of alcoholic beverages, it must be limited to other acts alleged to be negligent by the plaintiff. In
other words, Denim & Diamonds’ liability must be based on acts that resulted in Mr. Arnold driving
away from the night club and proceeding to the point of the accident.




                               IV. ISSUES RELATING TO LIABILITY

        Denim & Diamonds has raised several issues challenging the verdict finding it negligent and
liable for 40% of the compensatory damages. While several challenges relate to the apportionment



                                                 -7-
of fault and to the sufficiency of evidence to support a finding of any negligence by Denim &
Diamonds, we begin our analysis with the arguments regarding the scope of duty.

        The elements that must be proved to establish a claim for negligence have been stated many
times. They are (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 that duty; (3) an injury or loss;
(4) causation in fact; and (5) proximate or legal cause. Draper v. Westerfield, 181 S.W.3d 283, 290
(Tenn. 2005); Biscan v. Brown, 160 S.W.3d 462, 478 (Tenn. 2005); Coln v. City of Savannah, 966
S.W.2d 34, 39 (Tenn. 1998).

        Denim & Diamonds contends that the trial court misconstrued the element of duty in this case
and that there was insufficient evidence of breach of the correctly defined duty of care on its part to
sustain the apportionment of any fault to it or the share that was apportioned to it. The questions
posed by these arguments are: (1) whether Denim & Diamonds was under a duty imposed by law
or a duty it voluntarily assumed; (2) whether the scope of those duties differs significantly; (3) if they
do differ, whether the jury instructions incorrectly directed the jury to apply a higher standard than
the standard that was applicable; and (4) whether the evidence was sufficient to sustain the jury’s
allocation of fault to Denim & Diamonds for a breach of the applicable standard.

                                                     A. DUTY

        Whether a particular defendant owed a particular plaintiff a duty of care is a question of law,
which we review de novo. West v. East Tenn. Pioneer Oil Co., 172 S.W.3d 545, 550 (Tenn. 2005);
Westerfield, 181 S.W.3d at 290; Coln, 966 S.W.2d at 39. Generally, all persons have a duty to use
reasonable care to refrain from conduct that will foreseeably cause injury to others. Biscan, 160
S.W.3d at 478; Turner v. Jordan, 957 S.W.2d 815, 818 (Tenn. 1997). In all cases, the duty owed
to a plaintiff is that of reasonable care under all of the circumstances. East Tenn. Pioneer Oil Co.,
172 S.W.3d at 550.

        The general duty to conform one’s own conduct to a reasonableness standard so as to lessen
the likelihood of injury to others does not, in most circumstances, impose a duty to control the
conduct of others to the same end. Biscan, 160 S.W.3d at 478; Lett v. Collis Foods, Inc., 60 S.W.3d
95, 99-100 (Tenn. Ct. App 2001) (holding that one generally does not have a duty to control the
conduct of another so as to prevent that person from injuring a third party). Individuals “do not
ordinarily have a duty to act affirmatively to protect others from conduct other than their own.”
Nichols v. Atnip, 844 S.W.2d at 655, 661 (Tenn. Ct. App. 1992) (citing RESTATEMENT (SECOND )
                          5
OF TORTS § 314 (1964)).


       However, there are exceptions to this general statement of the law. One exception applies
where the individual “stands in some special relationship to either the person who is the source of


         5
          Similarly, courts have generally distinguished between action (or misfeasance) and inaction (or nonfeasance)
in determining whether a duty exists. Bradshaw, 854 S.W.2d at 870.

                                                         -8-
the danger, or to the person who is foreseeably at risk from the danger.” Biscan, 160 S.W.3d at 478-
79 (quoting Turner, 957 S.W.2d at 818); Bradshaw, 854 S.W.2d at 871.

         [W]hile an actor is always bound to prevent his acts from creating an unreasonable
         risk to others, he is under an affirmative duty to act to prevent another from
         sustaining harm only when certain socially recognized relations exist which
         constitute the basis for such legal duty.

Bradshaw, 854 S.W.2d at 871 (quoting Harper & Kime, The Duty to Control the Conduct of
Another, 43 Yale L. J. 886, 887 (1934)).

        These principles are embodied in the Restatement, which has been cited in all Tennessee
cases discussing duty arising from a special relationship. While § 314A of the Restatement gives
several examples of such special relationships, which include those of innkeeper and guest, and
possessors of premises open to the public and their invitees, that list is not exhaustive. Instead, in
determining whether a special relationship exists so as to create an affirmative duty to act for the
protection of a third party, Tennessee courts must “consider whether public policy and foreseeability
favor recognizing a special relationship” as well as the remaining factors in the balancing test
generally applied to determine whether a duty of care is owed in a particular situation. Biscan, 160
S.W.3d at 480.

        That balancing test “attempts to align the imposition of a duty with ‘society’s contemporary
policies and social requirements concerning the right of individuals and the general public to be
protected from another’s act or conduct’” in order to determine whether all the factors favor the
imposition of a legal duty. Id. (quoting Bradshaw, 854 S.W.2d at 870).6

        The Tennessee Supreme Court applied that test in Biscan and determined that an adult host
who allowed minors attending a party at his home to drink alcohol had a special relationship with
the minor guests that imposed a duty to act with reasonable care to prevent them from being injured;
specifically, in that case, to use reasonable care to prevent a minor guest from driving after drinking
or leaving with a driver who had been drinking. Id. at 481-82. In finding that the adult host had a
special relationship to his minor guests, Id. at 482, the court placed importance on the public policy,
established by the legislature, against minors consuming alcohol as well as the foreseeability of the
injuries sustained by the minor guest who left with an intoxicated minor driver. Id. at 480-81.

       The Court also noted, however, that the total absence of the means or ability to control the
guests would have precluded the finding of a special relationship, relying on Lett, 60 S.W.3d at 100

         6
           The balancing test generally applied in considering whether a defendant owed a duty of care to a particular
plaintiff includes the following factors: the foreseeable probability of the harm or injury occurring; the possible
magnitude of the potential harm or injury; the importance or social value of the activity engaged in by the defendant;
the usefulness of the conduct to defendant; the feasibility of alternative, safer conduct and the relative costs and burdens
associated with that conduct; the relative usefulness of the safer conduct; and the relative safety of alternative conduct.
Biscan, 160 S.W.3d at 479; McCall v. Wilder, 913 S.W.2d 150, 153(Tenn. 1995).

                                                            -9-
and Newton, 970 S.W.3d at 493. Biscan, 160 S.W. 3d at 481. The court found, however, that an
adult host “who is ‘in charge’ of a party held for minors . . . certainly has some ability to control the
conduct of his guests.” Id. The Court further stated that the adult host “did not have an absolute
duty to control his guests; rather, he had an absolute duty to use ordinary care to control his guests
and ensure their safety.” Id.

         After determining the existence of a special relationship between the defendant adult host
and the injured minor guest, the Court considered the remainder of the factors in the balancing test.
The Court recognized the apparent tension between the legislative determination that one who
furnishes alcohol cannot, as a matter of law, be liable for injuries resulting from the consumption of
that alcohol, as evidenced by Tennessee Code Annotated § 57-10-101,7 and the imposition of a legal
duty in the context of a social host who did not provide any of the alcohol that was consumed. Id.
The Court resolved that tension, however, by holding that the duty of care the adult host owed his
minor guests “lies separate and apart from furnishing alcohol. Because he knowingly permitted and
facilitated the consumption of alcohol by minors, an illegal act, Worley had a duty to exercise
reasonable care to prevent his guests from harming third persons or from befalling harm
themselves.” Id.

         Although the Court referred to a duty to prevent the minor guests from harming third parties,
the “special relationship” discussion centered on the relationship of the host and the minor guests,
not on third parties such as the general motoring public. In other words, if a special relationship
exists, the defendant may have a duty to control the conduct of the party who is the subject of the
relationship so as to protect others from foreseeable harm. In the case before us, the party seeking
to use the special relationship exception is Mr. Collins, who had no relationship to Denim &
Diamonds and was simply a member of the general public.8

       Mr. Collins asserts that Denim & Diamonds had a legally recognized special relationship
with both himself and Brett Arnold on the basis of two other sections of the Restatement of Torts.
He argues that §318 of the Restatement “recognizes a special relationship between a possessor of
land and a licensee where the possessor of land had the ‘ability to control’ the licensee and knows
of the ‘necessity and opportunity for exercising such control.’” Section 318 establishes that a
possessor of land or chattel has a duty to use reasonable care to control the conduct of a party whom
the possessor allows to use the land or chattel so as to avoid harm to others. However, that duty


         7
             That statute provides:

                     The general assembly hereby finds and declares that the consum ption of any
                     alcoholic beverage or beer rather than the furnishing of any alcoholic beverage or
                     beer is the proximate cause of injuries inflicted upon another by an intoxicated
                     person.
         8
         As a general rule, a property owner does not stand in a special relationship with members of the general public
who are not on their property. See Newton v. Tinsley, 970 S.W .2d 490, 493 (Tenn. Ct. App. 1997); Atnip, 844 S.W .2d
at 662.

                                                           -10-
relates to controlling the use of the chattel or the activity on the land. RESTATEMENT (SECOND ) OF
TORTS § 318 cmt. a and b. It is not applicable in the case before us.

         Similarly, Mr. Collins argues that Section 319 recognizes a special relationship “where a
person ‘takes charge of a third person whom he knows or should know to be likely to cause bodily
harm to others if not controlled.’” Again, that section creates a duty in specific situations, and those
situations are not present in the case before us. According to the comments, the rule in Section 319
applies in two situations: (1) where the actor has charge of a class of persons to whom the tendency
to act injuriously is normal and (2) where the actor has charge of a person not in such a class but who
has a peculiar tendency so to act that the actor knows or should know of. RESTATEMENT (SECOND )
OF TORTS § 319 cmt. a. The examples of persons under such a duty are the operators of a hospital
for contagious diseases or the operators of an institution for the mentally ill who know one of the
inmates is a homicidal maniac. Id. Additionally, the Tennessee Supreme Court has declined to
impose a duty on a commercial establishment to physically control an intoxicated driver to prevent
him or her from leaving the premises. East Tenn. Pioneer Oil Co., 172 S.W.3d at 552.

        Since neither of the Restatement provisions specifically relied on by Mr. Collins applies in
this case to establish a duty, the general rules regarding special relationships must be applied. As
stated earlier, there is no duty to control the conduct of another person to prevent him from causing
physical harm to someone else (a third party) unless (a) a special relation exists between the actor
and the other person or (b) a special relation exists between the actor and the “someone else” that
gives rise to a right of that third party to a right to protection.

         We agree with Mr. Collins that the foreseeability of harm and the seriousness of potential
harm associated with an intoxicated driver operating a vehicle on public streets is obvious. East
Tenn. Pioneer Oil Co., 172 S.W.3d at 551-52; Burroughs v. Magee, 118 S.W.3d 323, 332 (Tenn.
2003). In fact, the employees of Denim & Diamonds recognized that risk and gravity. Additionally,
there is certainly a public policy against operating a vehicle while under the influence of intoxicants,
as evidenced by legislation criminalizing such conduct.

       However, we can find no authority for the proposition that the owners or employees of a
commercial establishment have a special relationship with a customer or with the public that would
impose upon that establishment a duty to control the conduct of an adult customer9 to prevent his
leaving the premises or driving while intoxicated.

        In East Tenn. Pioneer Oil Co., the Tennessee Supreme Court held that employees of a
convenience store had a duty of reasonable care to persons on the roadways not to sell gasoline or
to assist in providing gasoline to a person that the employee knows or ought to know is intoxicated
and a driver. 172 S.W.3d at 552. However, the Court made clear that the duty of care did not arise
out of any special relationship, but was imposed by weighing the relevant principles from the


        9
          The Supreme Court stated in Biscan that “public policy considerations favor imposing a duty to act for the
protection of minors where such a duty might be absent when dealing with adults.”

                                                       -11-
generally applicable rules regarding duty. Id. at 551. The Court specifically held that the plaintiff’s
claims were not based on a “‘special relationship’ arising from the sale of gasoline” to the
intoxicated driver and that those claims did not

        revolve around any duty of the defendant to control the conduct of a customer.
        Instead, the claims are predicated on the defendant’s employees affirmative acts in
        contributing to the creation of a foreseeable and unreasonable risk of harm, i.e.,
        providing mobility to a drunk driver which he would otherwise not have had, thus
        creating a risk to persons on the roadways.

Id. Importantly, the Court specifically pointed out that “by our decision today we do not hold that
convenience store employees have a duty to physically restrain or otherwise prevent intoxicated
persons from driving.” Id. at 552.10

        Similarly, in Lett v. Collis Foods, Inc., this court held that a restaurant employer was under
no duty to prevent an intoxicated employee from leaving in her own car. 60 S.W.3d 95. Not only
did the court find no special relationship existed under various Restatement provisions relied on by
the plaintiff who was injured in an accident with the intoxicated employee, it also found that the
employer had taken no affirmative steps that facilitated the employee’s negligent act of driving a
vehicle while intoxicated. Id. at 104-05. The employer was presented with an employee who
showed up intoxicated, tried to sober her up, had her clock out since she was unable to work, and
tried to find someone who could take her home, but any desire to help her get home safely was
“thwarted by [the employee’s] determination to drive herself.” 60 S.W.3d at 105.

      Particularly relevant to the case before us were the court’s statements regarding the
employer’s lack of legal control over the off-duty employee:

        [The employer] had no legal right to tie her up or “sit on her” or otherwise prevent
        her from driving away in her own car. From a legal standpoint, it did not have the
        means or ability to control its employee when she made the decision to drive a
        vehicle in her condition. . . . The employer’s passive acquiescence in her leaving the
        premises and driving away in her own vehicle, acts they had no legal right to prevent,
        is simply not enough to impose a duty on this employer . . .

Id. at 105. This reasoning is consistent with the general principle that a defendant’s duty to control
the conduct of another depends in part on the defendant having the means and ability to control the
third party. Biscan, 160 S.W.3d at 481; Puckett v. Roberson, 183 S.W.3d 643, 652 (Tenn. Ct. App.
2005). The analysis in Collis Foods recognizes that “means and ability” include not just the physical
means and ability, but also the legal right to impose physical restraint.



        10
          .In Biscan, the Court, in response to the host’s arguments, also stated that, “Reasonable care under the
circumstances may not have included physically restraining his guests.” Biscan, 160 S.W .3d at 482.

                                                      -12-
        We conclude that Denim & Diamonds did not owe a duty to Mr. Collins or to other members
of the motoring public to protect them from the actions of Brett Arnold by virtue of any special
relationship. Additionally, we can find no other basis for deciding that Denim & Diamonds was
under a legally-imposed duty to control the conduct of Mr. Arnold by physical restraint or otherwise.

        Regardless of whether it had a duty to try to control Mr. Arnold’s conduct for the protection
of others, Denim & Diamonds did, in fact, try to stop Mr. Arnold from driving and does not dispute
that once it made those attempts it was under a duty to use reasonable care. Once the management
of the club determined that Mr. Arnold was so intoxicated that it would be unsafe to allow him to
drive, and once they took steps to prevent him from doing so, they assumed the duty to act
reasonably to accomplish that purpose. Denim & Diamonds itself acknowledges that it undertook
to prevent Mr. Arnold from driving, detained him, and thereby assumed a duty to act with reasonable
care to prevent him from harming others by driving.

        Even though the law may not impose a duty to act, once a party voluntarily assumes a duty
to act for the protection of others, he or she must then act reasonably. Draper v. Westerfield, 181
S.W.3d 283, 291 (Tenn. 2005) (distinguishing between a duty based on a special relationship and
a duty that is assumed). “One who assumes to act, even though gratuitously, may thereby become
subject to the duty of acting carefully.” Bennett v. Trevecca Nazarene University, 216 S.W.3d 293,
299 (Tenn. 2007); Biscan, 160 S.W.3d at 482-83; Stewart v. State, 33 S.W.3d 785, 793 (Tenn. 2000)
(quoting Marr v. Montgomery Elevator, 922 S.W.2d 526, 529 (Tenn. Ct. App. 1995)). A party
cannot relinquish that duty prematurely or perform it carelessly, or he or she will run the risk of
being found liable for resulting injuries. Biscan, 160 S.W.3d at 483.

                                 B. JURY INSTRUCTIONS ON DUTY

        Denim & Diamonds agrees that it assumed a duty once it detained Brett Arnold and that “its
duty to do so with reasonable care has never been disputed.” However, it argues that it was only
required to exercise reasonable care and that the trial court misstated the extent of that duty in
instructing the jury.

        We must apply well-settled principles to the challenge to the jury instruction. The soundness
of every jury verdict rests on the fairness and accuracy of the trial court's instruction. Bara v.
Clarksville Memorial Health Systems, Inc., 104 S.W.3d 1, 3 (Tenn. Ct. App. 2002). Since the
instructions are the sole source of the legal principles needed to guide the jury's deliberations, trial
courts must give substantially accurate instructions concerning the law applicable to the matters at
issue. State ex. rel Myers v. Brown, 209 351 S.W.2d 385, 388 (Tenn. 1961).

        However, jury instructions need not be perfect in every detail. In re Estate of Elam, 738
S.W.2d 169, 174 (Tenn.1987); Benson v. Tennessee Valley Elec. Coop., 868 S.W.2d 630, 642-43
(Tenn. Ct. App. 1993). A single erroneous statement will not necessarily undermine otherwise
proper instructions that, on the whole, fairly define the issues and do not mislead the jury. Cortazzo
v. Blackburn, 912 S.W.2d 735, 745 (Tenn. Ct. App. 1995). Jury instructions must be viewed as a


                                                 -13-
whole, and the challenged portion of the instructions should be considered in light of its context.
Abbott v. American Honda Motor Co., Inc., 682 S.W.2d 206, 209 (Tenn. Ct. App. 1984).

        A party seeking to set aside a jury verdict has a particularly heavy burden to carry, because
our courts have a duty to uphold a jury verdict whenever possible. Grandstaff v. Hawks, 36 S.W.3d
482, 497 (Tenn. Ct. App. 2000); Henshaw v. Continental Crescent Lines, Inc., 499 S.W.2d 81, 86
(Tenn. Ct. App. 1973). Accordingly, “we should not set aside a jury’s verdict because of an
erroneous instruction unless it affirmatively appears that the erroneous instruction actually misled
the jury.” Grandstaff, 36 S.W.3d at 497; Ladd v. Honda Motor Co., Ltd., 939 S.W.2d 83, 84 (Tenn.
Ct. App. 1996); Carney v. Coca-Cola Bottling Works of Tullahoma, 856 S.W.2d 147, 150 (Tenn.
Ct. App. 1993).

        Thus, a jury verdict may be reversed if it can be shown that a jury instruction contained an
inaccurate statement of the law or was confusing, and that the instruction more likely than not
affected the outcome of the trial. Bara, 104 S.W.3d at 3; see also Richardson v. Miller, 44 S.W.3d
1, 26 (Tenn. Ct. App. 2000) (failure to give jury instructions as to inferences to be drawn from
missing evidence was not reversible error); Helms v. Weaver, 770 S.W.2d 552, 553 (Tenn. Ct. App.
1989) (citation of an inapplicable statute in a jury instruction was not reversible error).

        In the case before us, the trial court gave the instruction on duty that Mr. Collins requested.
Its language is derived from RESTATEMENT (SECOND ) OF TORTS § 319:

        One who takes charge of a third person whom he knows or should know to be likely
        to cause bodily harm to others if not controlled is under a duty to exercise reasonable
        care to control the third person to prevent him from doing such harm.

        As discussed earlier, this provision, establishing one of the “special relationships” that creates
a duty to control the conduct of others, does not apply to the factual circumstance presented in this
case. It is derived from the Restatement section that applies to parties who are under a legally
imposed obligation to control individuals who are likely to cause harm to others, such as the
operators of a private hospital for contagious diseases or of a private sanitarium for the insane, and
we have earlier determined this provision does not apply herein. See RESTATEMENT (SECOND ) OF
TORTS § 319.

        Even though this Restatement provision does not apply herein, reversal on the basis of the
instruction actually given is not justified unless the instruction is an inaccurate statement of the law
or misleading or confusing and more likely than not affected the outcome of the trial.

        Denim & Diamonds contends that the instruction that was given subjected them to a duty of
extraordinary care and “more or less makes Denim & Diamonds the absolute guarantor of Plaintiff’s
safety.” We do not agree with this characterization of the instruction. We see nothing in the
language of the instruction that would have required the jury to impose a duty of extraordinary care,
rather than reasonable care, on Denim & Diamonds. To the contrary, it specifically uses the phrase


                                                  -14-
“duty to exercise reasonable care.” Nothing in this language would require a defendant to guarantee
the safety of another, nor does it establish strict liability.

       However, that does not end our analysis of the jury instruction issues, because Denim &
Diamonds also raises the trial court’s failure to give an instruction it requested. The instruction
requested by Denim & Diamonds, and declined by the trial court, tracked verbatim § 324A of the
Restatement, which pertains to voluntary assumption of a duty:

        One who undertakes, gratuitously or for consideration, to render services to another
        which he should recognize as necessary for the protection of a third party or his
        things, is subject to liability to the third person for physical harm resulting from his
        failure to exercise reasonable care to protect his undertaking, if:

        (a) his failure to exercise reasonable care increases the risk of such harm, or
        (b) he has undertaken to perform a duty owed by the other to the third person, or
        (c) the harm is suffered because of reliance of the other or the third person upon the
        undertaking.

       Denim & Diamonds argues on appeal that the court’s failure to give its requested instruction
was error that unfairly affected the result. A trial court should instruct the jury on every issue of fact
and theory of the case that is raised by the pleadings and is supported by the proof. Street v. Calvert,
541 S.W.2d 576, 584 (Tenn. 1976); Spellmeyer v. Tenn. Farmers Mut. Ins. Co., 879 S.W.2d 843,
846 (Tenn. Ct. App. 1993). More specifically, trial courts should give requested jury instructions
where those instructions are supported by the evidence, embody the party’s theory, and are correct
statements of the law. Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 445 (Tenn. 1992).
Conversely, a trial court can refuse to give a requested charge to the jury if it is not supported by the
evidence, its substance is already covered in the general charge, or it is incorrect or incomplete in
any respect. Ingram v. Earthman, 993 S.W.2d 611, 635 (Tenn. Ct. App. 1998). Only when the
denial of a requested instruction that could have been given under the previously stated rules
prejudices the rights of the requesting party must this court vacate the judgment. Souter v. Cracker
Barrel Old Country Store, Inc., 895 S.W.2d 681, 684 (Tenn. Ct. App. 1994).



       The Restatement provision that is the basis for the instruction requested by Denim &
Diamonds applies specifically to parties who voluntary assume the duty to protect others from
foreseeable risk. As we concluded earlier, that is the only type of duty that exists in this case.
Consequently, the instruction requested by Denim & Diamonds was the more applicable of the
requested instructions. The question is whether the requested instruction was a correct statement of
the law whose omission prejudiced the rights of Denim & Diamonds.

       Denim & Diamonds contends that there is a substantial distinction between the instruction
that was given and the one that it requested. It argues that under the instruction it requested, it would
only have been liable if its failure to exercise reasonable care, once it assumed a duty, increased the

                                                  -15-
risk of harm to the plaintiff. That is the wording of a portion of the Restatement provision on
assumed duty, as repeated in the requested instruction.

         There was at one time some question as to whether Tennessee had adopted that provision in
its entirety as establishing the elements for liability under an assumed duty. With regard to Section
324A of the Restatement, this court observed in 2001, that it was “not entirely clear that Tennessee
has adopted this section of the Restatement.” Lett v. Collis Foods, 60 S.W.3d at 104. Tennessee
courts have clearly adopted the rule that one who undertakes to act may become subject to the duty
to act carefully. Bennett , 216 S.W.3d at 300; Westerfield, 181 S.W.3d at 291; Biscan, 160 S.W.3d
at 482-83; Stewart, 33 S.W.3d at 793; Marr v. Montgomery Elevator, 922 S.W.2d 526, 529 (Tenn.
Ct. App. 1995). Although many opinions recognize that duty, no Tennessee court has explicitly
adopted Section 324A as establishing the only situations under which liability attaches.

        However, the Tennessee Supreme Court has quoted and applied the conditions set out in
Restatement §324A(a)-(c) in a context indicating that those conditions establish the applicable bases
for liability when there has been a breach of the assumed duty of reasonable care. In Biscan, the
Supreme Court rejected an argument by the defendant that since the minor guests had not relied on
his protection, he could not be liable under the assumption of a duty rationale. Biscan, 160 S.W.3d
at 483. As set out above, reliance is one of the three alternatives set out in Section 324A. In
rejecting that argument, the Court stated that the defendant could have been liable if any of the three
conditions in Section 324A were present, not just reliance.11 Id.

        While the Court did not explicitly state it was adopting Section 324A as establishing
conditions for imposition of liability in an assumption of duty situation, its application of those
conditions indicated its adoption of the entirety of Restatement § 324A. We conclude that, if
confronted with the question directly, the Court would hold that Section 324A, including subsections
(a) through (c), establishes the law in Tennessee regarding liability under a duty that is voluntarily
assumed. See Gaines v. Excel Indus., Inc., 667 F.Supp. 569, 571 (M.D. Tenn. 1987)(finding that
a Tennessee court, when faced with the appropriate situation, would “apply the Restatement
formulation”).

        Essentially, subsections (a) through (c) of Section 324A establish additional requirements,
beyond a failure to act with due care, for liability to attach to a party who assumes a duty and tries,
although unsuccessfully, to prevent harm to others. In the case before us, the requirement at issue
is found in subsection (a), that the failure of the party who undertook to protect another to exercise
reasonable care “increases the risk of such harm.” This requirement is consistent with public policy.
Without this requirement, the law would deter people from trying to prevent harm to another when
they are under no legal duty to do so because they might incur liability they would not otherwise
face. Rather than subjecting such parties to liability for merely failing to use reasonable care in such
an attempt, subsection (a) requires that the unsuccessful efforts have increased the risk of harm. In


         11
           The Court had already decided that the minor guests had, as a matter of fact, relied on the defendant’s rule
regarding drinking at parties, so the Court did not examine whether either of the other conditions was shown to apply.

                                                        -16-
other words, Section 324A(a) ensures that liability continues to rest with the primary actor or
tortfeasor unless the intervening party’s attempts increase the danger to others over that posed by the
primary actor’s conduct.

        Herein, Section 324A(a) would require proof that Denim & Diamonds’ conduct in certainly
delaying and attempting to prevent Mr. Arnold from driving in his impaired condition made the risk
of harm to the motoring public greater or more likely than if Denim & Diamonds had done nothing.
More to the point, had the jury been instructed on Section 324A (a), it would have been required to
determine whether the conduct of Denim & Diamonds’ employees in detaining Mr. Arnold while
trying to arrange a ride for him increased the risk that he would drive in an impaired condition and
harm others. The jury was not given that instruction, and therefore did not make the analysis
necessary to finding Denim & Diamonds liable under Section 324A.

        Based on the record before us, we cannot conclude that the jury’s finding of liability for
negligence on the part of Denim & Diamonds would not have been different had it been given the
instruction requested by Denim & Diamonds. To the contrary, we hold that the failure to give the
requested instruction, more likely than not, affected the outcome of the trial. We must, therefore,
reverse the verdict and the judgment based thereon.

        In addition to his arguments in support of the instruction that was given, Mr. Collins argues
that, even if the “increase the risk of harm” instruction should have been given, Denim & Diamonds’
conduct did, in fact, increase the risk of Mr. Arnold speeding away and harming others. Because the
jury was not given the instruction, it did not have the opportunity to decide whether there was
sufficient evidence that Denim & Diamonds’ attempts to keep Mr. Arnold from driving increased
the risk of harm to others. Consequently, we cannot on appeal determine whether the evidence
would support such a jury finding. The question must be submitted to the factfinder first.

                                    C. FINDING OF NEGLIGENCE

        Separate and apart from its arguments regarding the scope of any duty it was under, Denim
& Diamonds argues that, even if the “increase the risk” requirement did not apply, it could not be
held liable for negligence. It asserts that there was insufficient proof that it breached its duty to use
reasonable care, even under the instruction given by the trial court, to prevent Mr. Arnold from
driving away or from harming himself or others. In the interest of judicial economy, we will address
those arguments.

        “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. Rule 13(d). See also Barnes v. Goodyear Tire
& Rubber Co., 48 S.W.3d 698, 704 (Tenn. 2000). In determining whether there is material evidence
to support a verdict, the appellate court must: (1) take the strongest legitimate view of all the
evidence in favor of the verdict; (2) assume the truth of all evidence that supports the verdict; (3)
allow all reasonable inferences to sustain the verdict; and (4) discard all countervailing evidence.
Whaley v. Perkins, 197 S.W.3d 665, 671 (Tenn. 2006); Barnes, 48 S.W.3d at 698; Crabtree Masonry
Co. v. C & R Construction, Inc., 575 S.W.2d 4, 5 (Tenn. 1978).

                                                  -17-
         Appellate courts shall neither re-weigh the evidence nor decide where the
         preponderance of the evidence lies. If the record contains “any material evidence to
         support the verdict, [the jury's findings] must be affirmed; if it were otherwise, the
         parties would be deprived of their constitutional right to trial by jury.”

Barnes, 48 S.W.3d at 704 (citations omitted).

         Having thoroughly reviewed the record, we find that it contains material, albeit disputed,
evidence to support the jury’s verdict finding Denim & Diamonds liable for negligence as instructed
by the trial court. The testimony set out earlier in this opinion details some of that evidence. Among
other things, the jury could have found the following acts or omissions as falling below the standard
of reasonable care and contributing to the accident: the failure to require that more than one security
officer escort him to his car; the failure to advise the security officer of all the circumstances; and
the failure to notify the police that an impaired and potentially dangerous driver had left the parking
lot.

                                      D. THE ALLOCATION OF FAULT

         In this appeal, Denim & Diamonds also challenges the jury’s allocation of fault among the
defendants. Since we have found that the verdict must be reversed, we are not required to address
this issue. However, in the interest of economy for the parties, the trial court, and any reviewing
court, we will consider the issue of the jury’s allocation of fault. Denim & Diamonds’ argument on
this issue, and our analysis of the issue, address the verdict found by the jury under the instruction
that did not include the requirements of Section 324A of the Restatement.

       Tennessee has adopted a system of modified comparative fault for tort litigation. McIntyre
v. Balentine, 833 S.W.2d 52 (Tenn. 1992). Under that system, liability may be allocated among
defendant tortfeasors in proportion to their degree of fault, so long as the plaintiff’s negligence is less
than that of the defendant or defendants. McIntyre, 833 S.W.2d at 57. In the case before us, the
defendants concede that the plaintiff was without fault, and that there was nothing he could have
done to avoid the injuries that were caused by the fault of others.

         Although Denim & Diamonds continues to object to any liability for negligence on its part,
it also specifically challenges the jury’s allocation of fault, which it describes as “incomprehensible.”
Denim & Diamonds argues that under the facts of this case, either Brett Arnold should have been
held primarily responsible for his actions or TPA should have been found to bear a greater degree
of responsibility than Denim & Diamonds for allowing him to retrieve his car and drive it off. It
contends that since the actions of Brett Arnold were the direct cause of the plaintiff’s injuries,
allocating a greater degree of fault to Denim & Diamonds than to Mr. Arnold defies all sense or
reason.12

         12
           In support of this argument, the defendant relies heavily on an unpublished opinion of this court, Morgan
v. State, No. M2002-02496-COA-R3-CV, 2004 WL 170352 (filed January 27, 2004) (No Tenn. R. App. P. 11
                                                                                                        (continued...)

                                                        -18-
         Denim & Diamonds also argues that it made no sense for the jury to allocate a greater degree
of fault to it than to TPA. It notes that TPA was responsible for the training of its own employees,
that it chose which of those employees to send to the various clubs for which it provided security,
that a TPA employee was charged with the duty of safely escorting Brett Arnold to his car, and that
she was the one who made it possible for Mr. Arnold to escape.

        While these facts are undisputed, Denim & Diamonds ignores other facts which show the role
it played in the sequence of events that led to the plaintiff’s injuries. Mark Gangwer, the bar’s
manager, exercised the ultimate responsibility over the daily operation of the club and had authority
over both Denim & Diamonds’ own employees and the employees of TPA. Mr. Gangwer
determined how many security guards to ask TPA for, and he had the authority to deploy them as
needed. He also had superior knowledge of Brett Arnold’s condition and behavior, having observed
him for forty-five minutes in his office. Finally, Denim & Diamonds and its manager were in the
position to alert police to the danger posed by Mr. Arnold, thereby having a final opportunity to
prevent injuries.

          In the final analysis, the allocation of fault under Tennessee's system of comparative fault
is a matter for the jury to decide. Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785, 789 (Tenn.
2000); Ward v. Glover, 206 S.W.3d 17, 35 (Tenn. Ct. App. 2006); LaRue v. 1817 Lake, Inc., 966
S.W.2d 423, 427 (Tenn. Ct. App. 1997). A reviewing court will not set aside a jury’s allocation of
fault if it is supported by any material evidence. Braswell v. Lowe’s Home Centers, Inc., 173 S.W.3d
41, 43 (Tenn. Ct. App. 2005).

         The process of ascertaining the evidentiary support for a jury’s verdict is very
         deferential toward the verdict. The reviewing courts must (1) take the strongest
         legitimate view of the evidence that favors the verdict, (2) assume the truth of all the
         evidence that supports the verdict and (3) allows all reasonable inferences that sustain
         the verdict.

Id. (citing Kelley v. Johns, 96 S.W.3d 189, 194 (Tenn. Ct. App. 2002)).

         Again, if the jury were not required to consider the “increase the risk of harm” condition for
liability under an assumed duty, then we conclude there was material evidence in this case to support
the jury’s conclusion that all three defendants had acted negligently. Under the facts presented, it
is conceivable that the jury could have allocated fault among the defendants in different proportions
than it did. But there was nothing illogical or “incomprehensible” about the jury’s allocation of fault.

                                              V. PUNITIVE DAMAGES



         12
           (...continued)
application filed), in which we stated that a party’s voluntary intoxication did not relieve her from the responsibility for
her own negligence. Morgan, 2004 WL 170352 at *8. We do not disagree with that well-settled principle, and it was
obviously applied herein since a portion of the liability was assigned to Mr. Arnold.

                                                           -19-
        The jury awarded, and the trial court approved, punitive damages against Denim &
Diamonds, which award Denim & Diamonds asserts was error. We have already determined that
the finding of negligence must be reversed because of an omission in the jury instructions. That
conclusion necessarily requires reversal of the punitive damage award.

         However, we feel it prudent to address the arguments raised by Denim & Diamonds
regarding the propriety of the award of punitive damages in the even our conclusion regarding
Restatement Section 324A and the jury instructions is reversed. Additionally, should the case be
retried, some guidance with regard to punitive damages is in order.

       The leading case in Tennessee governing the award of punitive damages is Hodges v. S.C.
Toof & Co., 833 S.W.2d 896 (Tenn. 1992). In Hodges, the Tennessee Supreme Court decided to
“reexamine and modify” the manner in which punitive damages are awarded in Tennessee. Id. at
900. The Court’s decision to revamp punitive damage law resulted from the Court’s concerns that
“unlimited jury discretion . . . in the fixing of punitive damages may invite extreme results that jar
one’s constitutional sensibilities.” Id. (quoting Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 18
(1991)).

        After discussing the history of punitive damages in Tennessee, the Court concluded that the
“contemporary purpose” of punitive damages is to both punish the wrongdoer and deter others from
behaving the same way. Hodges, 833 S.W.2d at 900. Unlike other types of damages, punitive
damages are not designed to compensate the plaintiff. Id. The Court found that the litany of
offenses that once merited a punitive damage award were vague and overbroad.13 Id. at 900-01.
Consequently, the Court decided to “restrict the awarding of punitive damages to cases involving
only the most egregious of wrongs.” 833 S.W.2d at 901 (emphasis added). Examples cited by the
Court in Hodges include “conscious action of a reprehensible character” and “malicious commission
of a tort.” Id.

         Considering the twin purposes of protection and deterrence, the Court in Hodges decided to
restrict the availability of punitive damages in order to avoid “dull[ing] the potentially keen edge of
the doctrine as an effective deterrent of truly reprehensible conduct.” Hodges, 833 S.W.3d at 901.
Consequently, a court can award punitive damages “only if it finds a defendant has acted either (1)
intentionally, (2) fraudulently, (3) maliciously or (4) recklessly.” Id. The parties herein agree that
the issue here is whether Denim & Diamonds met the fourth ground, namely whether its behavior
was reckless.14


         13
           At the time of the Hodges decision, Tennessee law allowed punitive damages in cases involving “fraud,
malice, gross negligence, evil motives, conscious indifference and reckless conduct implying ‘disregard of social
obligation.’” Id. at 900-01.
         14
             A review of the definitions of the other three grounds helps to illuminate the degree to which the Court meant
to restrict the availability of punitive damages.

                                                                                                            (continued...)

                                                          -20-
        In a further attempt to limit the availability of punitive damages “only in the most egregious
of cases,” the Court in Hodges also required proof of one of the four grounds by clear and convincing
evidence. Id. at 901.

        This higher standard of proof is appropriate given the twin purposes of punishment
        and deterrence: fairness requires that a defendant’s wrong be clearly established
        before punishment, as such, is imposed; awarding punitive damages only in clearly
        appropriate cases better effects deterrence.

Id. In order to avoid confusion about the standard in this context, the Court defined “clear and
convincing evidence” to mean “evidence in which there is no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.” Id.

         In addition to the substantive proof to be presented, the Court in Hodges also addressed the
procedural framework. When punitive damages are alleged, the trial is to be bifurcated so that in
the first phase the factfinder shall determine whether the defendants are liable for punitive damages
under the stringent standards enunciated.15 The amount of damages shall then be determined in the


        14
          (...continued)
        A person acts intentionally when it is the person’s conscious objective or desire to engage in the
        conduct or cause the result. Cf. T.C.A. § 39-11-302(a) (1991) (criminal definition of “intentional”).
        A person acts fraudulently when (1) the person intentionally misrepresents an existing, material fact
        or produces a false impression, in order to mislead another or to obtain an undue advantage, and (2)
        another is injured because of reasonable reliance upon that representation. See First Nat’l Bank v.
        Brooks Farms, 821 S.W.2d 925, 927 (Tenn. 1991). A person acts maliciously when the person is
        motivated by ill will, hatred, or personal spite.

Id. (emphasis added).


        15
          The factfinder is to be instructed that “the primary purpose” of punitive damages is to “deter misconduct”
and must consider, to the extent they are relevant, at least the following factors:

        (1) The defendant’s financial affairs, financial condition, and net worth;
        (2) The nature and reprehensibility of defendant’s wrongdoing, for example
                 (A) The impact of defendant’s conduct on the plaintiff, or
                 (B) The relationship of defendant to plaintiff;
        (3) The defendant’s awareness of the amount of harm being caused and defendant’s motivation in
        causing the harm;
        (4) The duration of defendant’s misconduct and whether defendant attempted to conceal the conduct;
        (5) The expense plaintiff has borne in the attempt to recover the losses;
        (6) Whether defendant profited from the activity, and if defendant did profit, whether the punitive
        award should be in excess of the profit in order to deter similar future behavior;
        (7) Whether, and the extent to which, defendant has been subjected to previous punitive damage
        awards based upon the same wrongful act;
        (8) Whether, once the misconduct becam e known to defendant, defendant took remedial action or
        attempted to make amends by offering a prompt and fair settlement for actual harm caused; and
                                                                                                      (continued...)

                                                       -21-
immediate second phase. Thereafter, the trial judge is to review any award of punitive damages
“giving consideration to all matters on which the jury is required to be instructed.” 833 S.W.2d at
902. As part of the review, the trial court “shall clearly set forth the reasons for . . . approving all
punitive awards in findings of fact and conclusions of law demonstrating a consideration of all
factors on which the jury is instructed.” Id.

        It is abundantly clear that the Supreme Court made every attempt to structure a procedure for
consideration of punitive damages that would result in their award only in cases where the behavior
is so reprehensible that it must be both punished and deterred. See Culbreath v. First Tenn. Bank
Nat’l Ass’n, 44 S.W.3d 518, 529 (Tenn. 2001) (holding bank’s conduct was “reprehensible”
supporting punitive damage award); Metcalfe v. Waters, 970 S.W.2d 448, 452 (Tenn. 1998) (holding
attorney’s “repeated transgressions and callous disregard” for clients supported punitive damages
in attorney malpractice case).

        It is against this backdrop that the appropriateness of the award of punitive damages against
Denim & Diamonds is to be measured. The very high standards detailed above must be applied only
to the conduct of Denim & Diamonds employees in attempting to prevent Mr. Arnold from injuring
others by driving in his impaired condition. As explained earlier in this opinion, the jury did not find
that Denim & Diamonds had any liability related to furnishing alcohol. Just as Denim & Diamonds
cannot be liable for compensatory damages based on conduct related to serving alcohol, it cannot
be liable for punitive damages based on that conduct. By statute, because the jury did not find that
Denim & Diamonds was liable under the statutory exception to the Dram Shop Act, the jury could
not have awarded and the trial judge could not have approved punitive damages against Denim &
Diamonds based upon it selling alcohol to Mr. Arnold. Tenn. Code Ann. § 57-10-102.
Consequently, any alleged recklessness relating to the furnishing of alcohol is not relevant to the
analysis of the punitive damage award and cannot be considered as a justification of that award.

        That distinction is important because of arguments made by Mr. Collins as to the basis for
finding that Denim & Diamonds acted recklessly. He argued below, and argues on appeal, that
Denim & Diamonds was guilty of misconduct or reckless or reprehensible conduct, but the examples
of such conduct all relate to the service or sale of alcohol. While the causes of action based on sale
of alcohol were viable when the case went to the jury, the jury’s verdict eliminated them as a basis
for liability for either compensatory or punitive damages.

       In its Memorandum Opinion, the trial court adopted some of Mr. Collins’ arguments and
included in Denim & Diamonds’s “reprehensible conduct” the fact that Denim & Diamonds was
aware that 90% of its customers left intoxicated and that Denim & Diamonds ran the beer specials

        15
          (...continued)
        (9) Any other circumstances shown by the evidence that bear on determining the proper amount of
        the punitive award.

Hodges, 833 S.W.2d at 901-02. (emphasis added).



                                                     -22-
without adequate staff. That is conduct relating to the cause of action based on serving alcohol.
Thus, to the extent the trial court relied on that conduct as a ground for punitive damages, such
reliance is prohibited by Tenn. Code Ann. §57-10-102.

        Additionally, the fact of the matter is that Denim & Diamonds’s employees recognized Mr.
Arnold’s impaired condition, regardless of how he arrived at that state. They recognized the risk he
posed and attempted to remove that risk. In other words, Mr. Arnold did not leave without his
intoxication being perceived. Therefore, any knowledge on the part of the club employees about
other patrons leaving intoxicated has no relevance to any negligence in Mr. Arnold’s situation. For
the same reasons, the manner in which the club ran its beer specials is also irrelevant to the
recklessness or misconduct in how the employees attempted to prevent his leaving.

        As the trial court recognized, the negligence finding by the jury herein was based on the
efforts of Denim & Diamonds’ employees to prevent Mr. Arnold from driving and in failing to
immediately call the police when he left. The question, therefore, is whether that conduct meets the
stringent test for recklessness justifying an award of punitive damages. The Court in Hodges defined
recklessness as follows:

         A person acts recklessly when the person is aware of, but consciously disregards, a
         substantial and unjustifiable risk of such a nature that its disregard constitutes a gross
         deviation from the standard of care that an ordinary person would exercise under all
         the circumstances. Cf. T.C.A. § 39-11-302(c) (1991) (criminal definition of
         “reckless”).

Hodges, 833 S.W.2d at 901 (emphasis added).16
        The Tennessee Supreme Court in Doe v. Roman Catholic Diocese of Nashville, 154 S.W.3d
22, 37-41 (Tenn. 2005), recently had occasion to discuss the concept of recklessness in the context
of the tort of outrageous conduct. The Doe court cited the above quoted Hodges’ definition of
“recklessly” and then proceeded to elaborate on its meaning. The Court in Doe defined “disregards”




         16
            The Court also directed us to compare the definition of reckless for purposes of punitive damages with the
definition used in our laws defining criminal conduct. Id. A comparison leads to the obvious conclusion that the
definitions are almost identical. Tenn. Code Ann. § 39-11-302(c) defines “reckless” as follows:

         (c) “Reckless” refers to a person who acts recklessly with respect to circumstances surrounding the
         conduct or the result of the conduct when the person is aware of but consciously disregards a
         substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must
         be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care
         that an ordinary person would exercise under all the circumstances as viewed from the accused
         person’s standpoint.



                                                          -23-
to mean “to give no thought to: [to] pay no attention to.” Doe, 154 S.W.3d at 37 (quoting Webster’s
Third New Int’l Dictionary 655 (1971)).17

        Thus, in order to act recklessly, a defendant must disregard or pay no attention to a
substantial risk. The proof showed that Denim & Diamonds did not ignore the threat posed by Mr.
Arnold driving in his impaired condition. To the contrary, the employees took significant steps to
address this risk. They put a lot of time, effort and attention into deterring Mr. Arnold from driving
his vehicle. The fact that once the club’s employees undertook to act they did so negligently is not
tantamount to recklessness.

       As the jury is to be instructed, “the primary purpose” of punitive damages is to “deter
misconduct” Hodges, 833 S.W.2d at 901. The Court in Hodges was clear that punitive damages were
aimed at reprehensible conduct and misconduct. The conduct of Denim & Diamond’s employees
in attempting to prevent Mr. Arnold from driving off was simply neither misconduct nor
reprehensible. While their efforts were unsuccessful, they were not reckless.

        Accordingly, we conclude that the award of punitive damages must be reversed.

                               VI. OBJECTIONS TO TRIAL PROCEEDINGS

        Denim & Diamonds also asserts that errors in the conduct of the trial would justify a reversal
of the verdict and a remand for new trial. Although we have already determined that reversal is
required on another ground, we will nonetheless address the issues raised by Denim & Diamonds
so as to reduce the possibility of another review by this court and to provide guidance for a retrial.
In reviewing the alleged errors, we must consider the requirement of Tennessee Rule of Appellate
Procedure 36(b) that a final judgment “shall not be set aside unless, considering the whole record,
error involving a substantial right more probably than not affected the judgment or would result in
prejudice to the judicial process.”




                                   A. Admission of Prior Complaints

        Denim & Diamonds objected to the admission of two (2) complaints initiating lawsuits
previously filed against it. The attorney for the plaintiff played excerpts from the videotaped
deposition testimony of a corporate officer of Graham Brothers Entertainment, Denim & Diamonds’
parent company. Among other things, he acknowledged that the club’s “free beer nights” were an
important part of its operations, that they were still continuing, and that management had never
considered eliminating them. He also testified that by offering unlimited beer between 6:00 and


        17
           As the Court in Doe found, “Recklessness is a hybrid concept which resembles both negligence and intent,
yet which is distinct from both and can be reduced to neither.” Id. at 39.

                                                       -24-
11:00 p.m., the club drew customers in earlier, and that with contests and other entertainments, the
customers would stay around longer and start paying full price for other alcoholic beverages.

       Plaintiff’s attorney was also allowed to read into evidence two prior complaints against
Denim & Diamonds for accidents caused by drunk drivers leaving their premises. A 1994 complaint
involved the death of an underage drinker. A 1996 complaint alleged serious injuries to a
motorcycle rider from collision with a car driven by an intoxicated Denim & Diamonds customer.
The trial court conducted a jury-out hearing, during which Denim & Diamonds argued that the
introduction of those complaints would be irrelevant and misleading, since the complaints only
amounted to allegations and the cases never resulted in final judgments against Denim & Diamonds.

        The plaintiff argued that the complaints were relevant because the fact that they were filed
provided notice to Denim & Diamonds as to the possible dangers arising from its unlimited beer
special. After discussion, the judge ruled that the complaints would be admitted for identification
only, and he informed the jury that the allegations were never proved as true, that no final judgment
had been entered finding Denim & Diamonds at fault, and that the jury could consider them in its
discretion only as some kind of notice to Denim & Diamonds of the degree of risk involved in the
way it conducted its business.

        A trial court’s decision to admit or exclude evidence is reviewed under an abuse of discretion
standard. Biscan, 160 S.W.3d at 468; Mercer v. Vanderbilt University, 134 S.W.3d 121, 121 (Tenn.
2004). A trial court abuses its discretion “only when it applies an incorrect legal standard, or reaches
a decision which is against logic or reasoning that causes an injustice to the party complaining.” Id.
(quoting Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)).

        Evidence is relevant and therefore admissible if it has “any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.” Tenn. R. Evid. 401. Evidence that is relevant under Rule
401 “may be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury . . .” Tenn. R. Evid. 403. The court must
therefore balance the probative value of the evidence and the potential prejudice to the objecting
party.



         Denim & Diamonds argues that the allegations of the two complaints were completely
irrelevant to the present case because neither complaint involved facts similar to those in the present
case, i.e., an unsuccessful attempt to prevent an intoxicated customer from driving away from its
premises. It also argues that the complaints caused unfair prejudice by inflaming the jury against
Denim & Diamonds. The plaintiff contends, to the contrary, that the complaints were relevant to
both his claim under the dram shop laws and his claim for punitive damages.

       At the time the complaints were offered into evidence, the claim based on the exception to
the Dram Shop Act, as well as the claim based on negligence in preventing Mr. Arnold from leaving,
were still viable. So was the claim for punitive damages based on reckless conduct in the sale of

                                                 -25-
alcohol. Knowledge of prior incidents where customers left intoxicated was relevant to the
recklessness standard.

        Mr. Collins directs our attention to several cases from other jurisdictions where the trial court
allowed the plaintiff to introduce evidence of prior claims or lawsuits against the defendant solely
for the purpose of establishing that the defendant had prior notice of possible defects, dangers or
wrongdoing. For example, the plaintiff in Skil Corp v. Lugsdin, 309 S.E.2d 921, 922-23 (Ga. Ct.
App. 1983), was injured while operating an electric saw which he claimed was defective. The court
allowed the admission of testimony as to numerous informal complaints or lawsuits involving the
same defect in the same or similar models of saw.

        In Bradbury v. Phillips Petroleum Co., 815 F.2d 1356, 1364 (10th Circuit 1987), a landowner
claimed that a uranium exploration subcontractor had trespassed on his land and assaulted him. He
was allowed to introduce evidence of seven previous complaints of trespass brought by the plaintiff’s
neighbors against the same subcontractor. Although the earlier incidents did not involve assaults
and they each arose out of separate events and transactions, the court ruled that they were admissible,
in part to prove that the incident at issue was not just a one-time mistake or accident but part of a
pattern of reckless conduct, and thus relevant to the plaintiff’s claim for punitive damages.

        Purcell v. Zimberlman, 500 P.2d 335, 343-45 (Ariz. Ct. App. 1972), involved a claim of
medical malpractice against a hospital and several doctors. The plaintiff was allowed to admit
evidence that the defendant surgeon had been named as a defendant in several other malpractice
suits. Although none of those suits involved the claim at issue, the court held that they were relevant
to the claim against the hospital for allowing the surgeon to maintain privileges in its facilities,
despite its knowledge of his possible incompetency. In each of the above cases, the appellate court
affirmed the lower court’s judgment and its use of such evidence for the purposes it stipulated.

       In the case before us, we conclude that the prior complaints had some relevance to the issues
presented to the jury. The question, therefore, is whether their prejudice outweighed whatever
probative value they may have had.



        The trial court was clearly aware of the danger of prejudice from the reading of the
complaints, but rather than shielding the jury from any knowledge of them, he instead chose to limit
their prejudicial effect in several ways. He ruled that the complaints would be admitted for
identification only, and thus they did not accompany the other exhibits to the jury room during
deliberations. He also informed the jury that the allegations were never proved as true, that no final
judgment had been entered finding Denim & Diamonds at fault, and most importantly, that the jury
could consider them in its discretion only as some kind of notice as to the degree of risk involved
in the way Denim & Diamonds conducted its business.

      We conclude that the trial court did not abuse its discretion in allowing admission of the prior
complaints and limiting the jury’s consideration of them.


                                                  -26-
        In any event, we cannot conclude that the introduction of the complaints, with the limiting
instruction, even if improper, more probably than not affected the outcome of the trial. The jury
declined to find Denim & Diamonds liable for serving alcohol to Mr. Arnold while he was
intoxicated. Consequently, we must conclude that the jury was unaffected by the information that
on two prior occasions patrons of the bar had driven while intoxicated after leaving the bar. We have
set aside the punitive damages award.

                                      B. A Stale Conviction

        During cross-examination of Mark Gangwer, Denim & Diamonds’ manager and primary
witness, it was disclosed that Mr. Gangwer had been convicted of a crime thirteen years earlier.
Denim & Diamonds argues that this information was improperly disclosed to the jury and affected
the verdict. The series of events leading to the disclosure is as follows:

       On cross-examination, the plaintiff’s attorney asked Mr. Gangwer if he had a permit with the
Tennessee Alcohol and Beverage Commission. Mr. Gangwer answered that he did. The attorney
then had his permit application placed on the overhead projector and the following exchange ensued:

       Q.      One of the questions on the permit is – I’ll read it to you. “Have you or any
               person employed by you in the sale or dispensing of alcoholic or malt
               beverages ever been convicted of any violation of any law against possession,
               sale, manufacture, or transportation of intoxicating liquor or any crime
               involving moral turpitude.” That’s a copy of your application. And you
               answered “No.”

       A.      Right.

       Q.      Is that a correct statement, Mr. Gangwer?

       A.      Which, the – any crime of moral turpitude.

       Q.      That’s not a correct statement, is it?

       A.      No.

       Q.      Because in 1990 you were convicted of a felony in Florida of lewd and
               lascivious assault on a child under the age of 14; correct?

       A.      Yes.

       Q.      That’s correct isn’t it?

       A.      Yes, it is.



                                                -27-
       Q.      So this statement that you made to the Tennessee Alcoholic Beverage
               Commission was incorrect?

       A.      Yes.

       Q.      Lewd and lascivious assault on a child under the age of 14 involves moral
               turpitude, doesn’t it Mr. Gangwer?

       A.      I guess so, yes.

        At that point, the attorney for Denim & Diamonds objected, and the court ordered a jury-out
hearing. In chambers, the Denim & Diamonds’ attorney asked for a mistrial, and asserted that the
introduction of Mr. Gangwer’s conviction was in violation of Rule 609 of the Tennessee Rules of
Evidence, which regulates the use of evidence of conviction of a crime to impeach a witness. Under
section (b) of that rule, evidence of a conviction that is more than ten years old is admissible only

       ...if the proponent gives to the adverse party sufficient advance notice of intent to use
       such evidence to provide the adverse party with a fair opportunity to contest the use
       of such evidence and the court determines in the interests of justice that the probative
       value of the conviction, supported by specific facts and circumstances, substantially
       outweighs the prejudicial effect.

Tenn. R. Evid. 609(b).

       Mr. Collins contended, however, that Rule 609 did not apply in this case, since it was not the
evidence of Mr. Gangwer’s crime that was used to impeach him, but rather his failure to disclose his
conviction in his application to the Tennessee Alcoholic Beverage Commission, which was signed
under oath in July of 2000.

        He argued that the applicable rule of evidence was Tenn. R. Evid. 608, which regulates
evidence of the character and conduct of a witness. Under that rule, evidence of specific incidents
of conduct that is probative solely of truthfulness or untruthfulness also requires a hearing outside
the jury’s presence. For the evidence to be admitted, the court must, upon request, determine that
“the alleged conduct has probative value and that a reasonable factual basis exists for the inquiry.”
Tenn. R. Evid. Rule 608(b)(1).

       The trial court listened to arguments for both sides and found that the plaintiff had not
followed the substance of Rule 609 and should have given prior notice of his intentions to the other
side. The judge also commented on the practical situation he faced, stating, “the cat is out of the bag,
the skunk has been thrown to the jury.”

        However, the trial court ruled that if the evidence had been presented through appropriate
notice to Denim & Diamonds and then referred to the court, the court would have allowed it, because
the evidence was extremely relevant to the question of the witness’s credibility, which was of critical


                                                 -28-
importance to the outcome of the case because of his central role in the events leading up to the
accident.

        The court refused to grant a mistrial, ordered that the permit application be admitted for
identification only, and declared that the plaintiff’s attorney could ask only one follow-up question
on the matter. The attorney’s question was “Mr. Gangwer, is it true that you lied on your ABC
application that you filed in July of 2000 for a permit to serve alcohol by failing to list a felony
conviction?” The witness answered in the affirmative. He then testified in detail as to the operations
of the club he managed, the measures it used to monitor the sobriety of its patrons, and his
recollection of the events on the night of the accident.

        On appeal, Denim & Diamonds renews its Rule 609 objection to the use at trial of Mr.
Gangwer’s old conviction. In addition to challenging the correctness of its admission, Denim &
Diamonds complains that if it had been given advance notice of the intended use of the conviction
and of the court’s willingness to allow the jury to learn of it, it could have followed a different trial
strategy, perhaps choosing not to call Mr. Gangwer as a witness at all.

       For his part, Mr. Collins renews his argument under Rule 608, emphasizing that the relevant
conduct for the purpose of that rule was Mr. Gangwer’s untruthful answer on his permit application,
not the earlier conviction that rendered the answer untruthful. He also insists that Denim &
Diamonds itself put the honesty and integrity of its star witness at issue by prompting him to offer
a generous helping of self-serving testimony about his background as an explorer scout and other
experiences to depict himself as a virtual police officer.18

       There are two separate components of the testimony at issue here.19 The first is the evidence
regarding Mr. Gangwer’s untruthful or incorrect answer on the application. The second is the
disclosure of the actual prior conviction and its nature. Mr. Collins has always maintained that the
questions at issue were aimed at eliciting evidence that was relevant to Mr. Gangwer’s credibility,
and that was the sole purpose of the questions. Both Rule 608(b) and Rule 609 of the Tennessee
Rules of Evidence govern the admissibility of prior conduct for the purpose of impeaching a
witness’s credibility. However, only one of the rules specifically addresses prior criminal
convictions, and that is Rule 609. Specific instances of prior conduct, other than convictions, are
addressed in Rule 608(b).


         18
           When Mark Gangwer was called to the stand, the attorney for Denim & Diamonds first asked him whether
he had a background in law enforcement. He answered that he did, and that,

         ...when I was out of high school I was involved in the Police Explorers in M elbourne [Florida]. M y
         mother was a dispatcher at the police department, and I basically went through all the training like
         a police officer would such as how to handle a domestic dispute, traffic investigation, basically all the
         same things a police officer would cover. And I was involved in the Ride Along Program, which I
         actually went out on patrol with officers and got to participate in different activities.
         19
           Of course, the actual statements about the conviction itself were made by counsel in his question. Since the
witness affirmed the fact and nature of the conviction, we will describe it as testimony or evidence.

                                                          -29-
        Rule 609(a) provides the conditions under which “evidence that a witness has been convicted
of a crime” may be admitted “[f]or the purpose of attacking the credibility” of that witness. On the
other hand, Rule 608(b) covers the admission of “[s]pecific instances of conduct of a witness for the
purpose of attacking or supporting the witness’s character for truthfulness, other than convictions
of crime as provided in Rule 609.” (emphasis added.) Accordingly, the admissibility of the prior
misrepresentation on the application must be determined by reference to Tenn. R. Evid. 608(b),
while the admissibility of the information regarding the conviction and the nature of the offense must
be measured by the requirements in Tenn. R. Evid. 609.

       We first examine the questions regarding Mr. Gangwer’s answer on the ABC application.
Rule 608(b) provides in pertinent part:

         Specific instances of conduct of a witness for the purpose of attacking or supporting
         the witness’s character for truthfulness, other than convictions of crime as provided
         in Rule 609, may not be proved by extrinsic evidence. They may, however, if
         probative of truthfulness or untruthfulness and under the following conditions, be
         inquired into on cross-examination of the witness concerning the witness’s character
         for truthfulness or untruthfulness or concerning the character for truthfulness or
         untruthfulness of another witness as to which the character witness being cross-
         examined has testified. The conditions which must be satisfied before allowing
         inquiry on cross-examination about such conduct probative solely of truthfulness or
         untruthfulness are:

         (1) The court upon request must hold a hearing outside the jury’s presence and must
         determine that the alleged conduct has probative value and that a reasonable factual
         basis exists for the inquiry;20

        Thus, Rule 608(b) describes when, and under what conditions, specific instances of conduct
may be used to impeach a witness if they reflect on the truthfulness or untruthfulness of the witness.
Neil P. Cohen, Sarah Y. Sheppeard, and Donald F. Paine, Tennessee Law of Evidence § 6.08[2]
Specific instances of conduct may be asked about on cross-examination, but only if certain
procedures are followed, specifically a jury-out hearing to assess whether there is a reasonable
factual basis for the inquiry and whether the alleged conduct has probative value. Id. at § 6.08[4].

        The specific conduct at issue herein was Mr. Gangwer’s untruthful answer on his ABC
application. The plaintiff asked about that conduct on cross-examination without requesting a jury-
out hearing and without giving notice to the defendant so that it could request such a hearing. One
of the conditions that must be satisfied before inquiry can be made into specific instances of conduct


         20
           Subsection (b)(2) deals with prior bad acts more than ten years old and is, therefore, not relevant here. It
requires notice to the adverse party of the intent to use the evidence and requires that the court determine that the
probative value of the evidence substantially outweighs its prejudicial effect.

                                                         -30-
probative of truthfulness is that the court conduct a jury out hearing and make the determinations set
out in Tenn. R. Evid. 608(b)(1). State v. Reid, 91 S.W.3d 247, 303 (Tenn. 2002) (Tenn. Crim. App.
opinion appendix).

         Although the rule does not specify whose responsibility it is to make the request for a
hearing, courts have held that the party seeking to use the evidence must make the request.21 State
v. Philpott, 882 S.W.2d 394, 404 (Tenn. Crim. App. 1994); State v. Davis, 741 S.W.2d 120, 123
(Tenn. Crim. App. 1987); Tennessee Law of Evidence § 6.08[7][b]. “The purpose of the hearing is
to eliminate the possibility that the jury will hear the question and its response before a judge has the
opportunity to rule.” Philpott, 882 S.W.2d at 404 (citing Tennessee Law of Evidence § 6.08.3, at
265). By not requesting a Rule 608(b)(1) hearing, the plaintiff herein frustrated the trial court’s
ability to further that purpose.

         Although the courts have indicated that the failure of the party seeking to use specific acts
of prior conduct to impeach the truthfulness of a witness to request a hearing as required by the rule
constitutes error on the part of the questioning party and is to be disapproved by the courts, that
failure has not necessarily resulted in reversal because of other circumstances surrounding the
questioning and any objection thereto or curative action. See, e.g., Philpott, 882 S.W.2d at 404;
State v. Peoples, No. E2005-001110CCA-R3-CD, 2006 WL 74150 (Tenn. Crim. App. Oct. 25, 2005)
(perm. app. denied May 30, 2006).

        At the jury-out hearing that was held after the evidence was heard by the jury, the trial court
conducted the analysis set out in Tenn. R. Evid. 608(b)(1). Our review of the trial court’s decision
to admit the evidence after that analysis is reviewed under an abuse of discretion standard. State v.
Reid, 91 S.W.3d at 303. We agree there was a reasonable factual basis for asking Mr. Gangwer if
his answer to the application question regarding prior convictions was correct. The purpose of the
requirement that there be a reasonable factual basis before permitting an inquiry into prior specific
acts is “to ensure that such questions are proposed in good faith, rather than in an effort to place
before the jury unfairly prejudicial information supported only by unreliable rumors.” State v.
Nesbit, 978 S.W.2d 872, 882 (Tenn. 1998). Herein, Mr. Gangwer immediately admitted his
application answer was incorrect.

        We also agree that the fact that his application answer was false is probative of his
truthfulness or lack thereof. Consequently, we agree with the trial court that, had the plaintiff
requested a timely jury-out hearing, the inquiry into the false answer on the application would have
been admissible to impeach the credibility of Mr. Gangwer. We also cannot conclude that the trial
court abused its discretion in allowing the evidence even though the plaintiff had not requested a
jury-out hearing before asking about the prior answer on the application.


         21
          Since the plaintiff in this case had not apparently given notice to the defendants of his intent to use the
impeaching evidence, the defendant would have had no basis upon which to request a jury-out hearing before the
question was asked.



                                                        -31-
        However, the questioning did not stop with the application answer. Instead, counsel for Mr.
Collins asked specifically about the prior conviction, giving the details of that conviction. At the
point the witness acknowledged that his answer on the application was not a correct statement, the
evidence probative of the witness’s character for truthfulness was established. The witness
responded “No” to the question of whether his prior answer to the application question regarding
prior convictions was correct.22 The actual crime and the date of the conviction did not add any
information relevant to impeachment of the witness’s credibility. Having established the fact that
Mr. Gangwer had misrepresented the facts on the application, the plaintiff was not authorized by
Rule 608 to ask the next question regarding the conviction or to rely on that rule to justify his failure
to comply with Rule 609.23

         As explained above, the language of Rule 608(b) specifically excludes criminal convictions,
stating that the admissibility of such convictions is governed by Rule 609. While Rule 608(b) allows
inquiry into specific instances of prior conduct that may be a criminal offense, “acts that were a
criminal offense and were the object of a criminal conviction must be introduced pursuant to Rule
609 rather than Rule 608. Rule 609 covers criminal convictions for impeachment.” Tennessee Law
of Evidence § 6.08[4].

        Under the applicable rule, evidence of a prior conviction may be admitted to impeach a
witness’s credibility if the crime is a felony or a crime involving dishonesty or a false statement.
Tenn. R. Evid. 609(a)(2). However, a conviction that is more than ten years old24 is not admissible
unless (1) the party seeking to use the conviction gives the other party advance notice of its intent
to use the conviction, and (2) the court determines that the probative value of the conviction,
supported by the facts and circumstances, outweighs its prejudicial effect. Tenn. R. Evid. 609(b).
Subsection (b) creates a presumption against admission, and the burden is on the party seeking to
use the conviction to prove that the probative value outweighs the prejudice. Tennessee Law of
Evidence § 6.09[6][e].

         22
           Rule 608 expressly prohibits introduction of extrinsic evidence of prior bad acts, so the plaintiff could not,
under that rule, introduce documents establishing the conviction, regardless of whether Mr. Gangwer had admitted or
denied that his answer on the application was incorrect. See Sneed v. Stovall, 22 S.W.3d 277, 281 (Tenn. Ct. App.
1999). If the conviction had been properly offered under Rule 609, and if the trial court’s decision to admit the
conviction under that rule were correct, however, a copy of the adjudicating documents could have been introduced.
Tenn. R. Evid. 609(a)(1).
         23
           Further, where a party inquires during cross-examination about specific instances of prior conduct for
impeachment purposes, “the witness should be asked about the act itself, not about rumors, arrests, charges, or
indictments for the act.” Philpott, 822 S.W .2d at 404 (quoting Tennessee Law of Evidence § 6.08.3, at 267). W hile the
question herein was not about a conviction for the act of lying on the ABC application, the principle nonetheless is
consistent with Rule 608's explicit exclusion of conviction evidence.

         24
           The ten year time period runs from the date of release from confinement where the witness was sentenced
to incarceration and from the date of conviction where no incarceration was imposed. Tenn. R. Evid. 609(b). In the
case before us, the plaintiff does not argue that subsection (b) does not apply because the witness was released from
confinement fewer than ten years earlier.



                                                         -32-
       In the case before us, the plaintiff did not give the notice required by the rule and did not
request a hearing outside the jury’s presence to give the court an opportunity to make the required
determination before the question revealing the conviction and the nature of the offense was asked
and answered.

         At the jury-out hearing requested immediately after the subject inquiry, the court first
examined the question of whether the plaintiff was required to give notice of his intent to use the
prior misrepresentation and/or the prior conviction. The court determined that Rule 609 required
that such notice be given, since the conviction was more than ten years old, and that the plaintiff
should have given that notice. The court then proceeded to conduct the jury-out hearing that should
have occurred prior to the disclosure of the conviction to determine “whether the Court would have
let this out.” 25

        The trial court determined that he would have allowed the evidence had the required notice
been given and a hearing held before the evidence was revealed to the jury. The court found that
“this evidence, if it had been produced . . . through notice to the defendant would have been allowed
by the Court. It is relevant as to the issue of credibility.” Defendants requested a limiting
instruction,26 which was denied, and a mistrial, which was also denied.

         In its ruling on Denim & Diamond’s motion for a new trial, the trial court stated:

         . . . it is the opinion of the Court that under Rule 608 and 609 that plaintiff should
         have given opposing side notice of this prior conviction and should have had a
         hearing outside of the jury’s presence. Even though there was a jury out hearing, by
         that time, the skunk had already been thrown to the jury and even if it had been
         determined that the evidence should have been excluded it was already too late.
         There is no doubt that this impeachment evidence weighed heavily in the jury’s mind
         when reaching their verdict.

         Even though the evidence was not properly introduced, this evidence was relevant
         and was probative of the manager’s truthfulness. Therefore, if done correctly, this
         evidence would have been allowed in. The jury would have, therefore, heard the
         statements made either way. For these reasons, a new trial should not be granted on
         these grounds.

       A trial court’s ruling on the admissibility of a prior conviction for impeachment purposes is
reviewed under an abuse of discretion standard. Waller, 118 S.W.3d at 371. Appellate review of

         25
           Counsel for defendants argued that the lack of timely notice put the defendants at a great disadvantage in
terms of the analysis under Rule 609 as well as the trial strategy adopted. Counsel for defendants were unaware of the
conviction.
         26
           They specifically asked that the court instruct the jury that plaintiff’s counsel should not have gone into the
matter without giving the court and the parties prior notice and that it was extremely improper.

                                                          -33-
a discretionary decision includes determining whether the trial court correctly applied the appropriate
legal standards and based its decision on the preponderance of the evidence. D v. K, 917 S.W.2d
682, 685 (Tenn. Ct. App. 1995).

       Under the abuse of discretion standard, a trial court’s ruling “will be upheld so long
       as reasonable minds can disagree as to the propriety of the decision made.” A trial
       court abuses its discretion only when it “applies an incorrect legal standard, or
       reaches a decision which is against logic or reasoning or that causes an injustice to
       the party complaining.” The abuse of discretion standard does not permit the
       appellate court to substitute its judgment for that of the trial court.

Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (citations omitted).

        Under Rule 609(b) evidence of a stale conviction is not admissible unless the court
determines that the probative value of the conviction outweighs its prejudicial effect. Tenn. R. Evid.
609(b). Appellate courts have reviewed decisions to admit a stale conviction to determine whether
the jury-out hearing “actually developed specific facts and circumstances to justify admission of the
evidence. A summary conclusion is clearly inadequate.” Tennessee Law of Evidence, § 6.09[6][d]
(citing State v. Lingrel, 692 S.W.2d 41(Tenn. Crim. App. 1985)).

        With regard to the regard to the required analysis, “[t]wo criteria are especially relevant in
determining whether the probative value of a conviction on the issue of credibility outweighs its
unfair prejudicial effect upon the substantive issues: (1) the impeaching conviction’s relevance as
to credibility; and (2) the impeaching conviction’s similarity to the offense charged.” State v. Waller,
118 S.W.3d 368, 371 (Tenn. 2003) (citing State v. Mixon, 983 S.W.2d 661, 674 (Tenn. 1999)). A
trial court should first determine whether the impeaching conviction is relevant to the issue of
credibility, because a felony conviction per se is not necessarily probative of credibility. Waller, 118
S.W.2d at 371. In determining how probative a conviction is to the issue of truthfulness, the trial
court must assess whether the offense involves dishonesty or a false statement. Id.

        In the case before us, the trial court did not explain the reasoning underlying its conclusion
that the conviction was relevant and probative of the witness’s truthfulness. The reason behind the
balancing standard to be applied to old convictions, and the general inadmissibility of such
convictions, is that criminal conduct in the distant past may have little bearing on a witness’s current
credibility. Tennessee Law of Evidence § 6.09[6][a]. We cannot agree with the trial court’s
conclusion that the nature of the conviction was probative of Mr. Gangwer’s truthfulness. Nothing
was produced in the hearing to show that the offense, or the facts and circumstances surrounding it,
involved dishonesty or false statement. Thus, we cannot find that the trial court applied the correct
legal standards in reaching its probity determination.

        The disclosure of the nature of the offense, however, was highly prejudicial because it was
described by plaintiff’s counsel as “lewd and lascivious assault on a child under the age of 14.” The
trial court itself recognized this disclosure was likely on the minds of the jury during their



                                                 -34-
deliberation. Nonetheless, the trial court did not weigh the prejudice against the probity. Its decision
to admit the evidence was based on its finding that the evidence was relevant and probative, and
was not the result of its application of the test of whether the probative value as to credibility
substantially outweighed its prejudicial effect. Consequently, the trial court did not apply the
correct legal standards. Based on our review of the record, we cannot conclude that the probative
value of the evidence regarding the conviction substantially outweighed its prejudicial effect.
Accordingly, the ruling to admit the evidence of the old conviction was in error.

         Our inquiry does not, however, end here. As discussed earlier, under Tennessee Rule of
Appellate Procedure 36(b) a final judgment “shall not be set aside unless, considering the whole
record, error involving a substantial right more probably than not affected the judgment or would
result in prejudice to the judicial process.” Based upon our review of the entire record, we cannot
say that the introduction of Mr. Gangwer’s prior conviction more probably as not affect the jury’s
determination of liability for negligence in allowing Mr. Arnold to drive away in an impaired
condition, the amount of compensatory damages awarded, or the allocation of fault among the
defendants. These determinations are supported by evidence in the record and do not appear to have
been affected by any prejudice created by the nature of the offense underlying the conviction.
Whether or not such prejudice more likely than not affected the award of punitive damages against
Denim & Diamonds is an issue we need not reach since we have vacated that award on another basis.

                                        C. Juror Misconduct

       One of the grounds raised by Denim & Diamonds in its motion for a new trial was juror
misconduct. According to Denim & Diamonds, one of the jurors brought extraneous prejudicial
information into jury deliberations. The plaintiff, on the other hand, argued that the evidence
regarding juror misconduct was not admissible and, alternatively, that no misconduct occurred. In
its Memorandum Opinion, the trial court denied the motion and found that there was no juror
misconduct.

        Denim & Diamonds introduced several affidavits from jurors discussing the behavior of one
particular juror. During the jury deliberations, one of the jurors disclosed that she had a relationship
with a police officer and implied that through this relationship she had discovered that the defendant
could have done more to prevent the accident. She also intimated that she knew something about
the case she was not supposed to know but did not disclose any additional information.

       Whether and to what extent a juror may testify about juror behavior and deliberations is
governed by Tennessee Rule of Evidence 606(b), which provides as follows:

       (B) Inquiry Into Validity of Verdict or Indictment. Upon an inquiry into the
       validity of a verdict or indictment, a juror may not testify as to any matter or
       statement occurring during the course of the jury’s deliberations or to the effect of
       anything upon any juror’s mind or emotions as influencing that juror to assent to or
       dissent from the verdict or indictment or concerning the juror’s mental processes,
       except that a juror may testify on the question of whether extraneous prejudicial

                                                 -35-
         information was improperly brought to the jury’s attention, whether any outside
         influence was improperly brought to bear upon any juror, or whether the jurors
         agreed in advance to be bound by a quotient or gambling verdict without further
         discussion; nor may a juror’s affidavit or evidence of any statement by the juror
         concerning a matter about which the juror would be precluded from testifying be
         received for these purposes. (emphasis added).

        Clearly, as a general rule jurors may not testify about a verdict, and no affidavit or evidence
about a juror may be presented. Walsh v. State, 166 S.W.3d 641, 647 (Tenn. 2005). There are,
however, three quite narrow exceptions to this general rule. Under these exceptions, evidence from
a juror may be admitted to impeach a verdict only if there has been “(1) extraneous, prejudicial
information, (2) outside influence, or (3) antecedent agreements to be bound by a quotient or
majority result.” Caldararo v. Vanderbilt University, 794 S.W.2d 738, 742 (Tenn. Ct. App. 1990).
As explained by this Court in Caldararo, this rule and its exceptions represent a “compromise”
between competing public policies. Id. at 741. It allows the courts to protect the integrity of the
process from verdicts “tainted” by information outside the record and outside influence. Id.; Walsh
v. State, 166 S.W.3d at 646. At the same time, the sanctity of jury deliberations is protected. Id. at
741-42.

        Denim & Diamonds relies upon the extraneous prejudicial information exception found in
Rule 606(b) to question the verdict. The burden of introducing evidence sufficient to support a
finding that Rule 606(b) has been satisfied rests with Denim & Diamonds. State v. Stinnett, 958
S.W.2d 329, 330 n.5 (Tenn. 1997). If this burden is met, then a rebuttable presumption of prejudice
arises and the burden shifts the other party to explain the conduct or demonstrate it was harmless.
Walsh, 166 S.W.3d at 647.

        We believe that this matter is analogous to the facts in Caldararo.27 The Caldararos sued
Vanderbilt Hospital claiming that injuries to Mr. Caldararo were caused by the attending nurses’
misdiagnosis of his condition and their failure to provide timely aid. 794 S.W.2d at 740. Mr.
Caldararo, a diabetic, had a heart attack that resulted in severe brain damage. Id. After a jury trial,
a verdict was returned for Vanderbilt Hospital. Id. The Caldararos filed a motion for a new trial
contending that the jury foreman acted improperly during deliberations. According to the affidavit
of two jurors, the jury foreman repeatedly told them during the trial that he was married to a nurse
and also described how he believed a nurse would examine a patient with diabetes. Id. at 740-41.
The trial court denied the Caldararos’ motion, and this court affirmed.



         27
            Since Caldararo was decided before the effective date of Tenn. R. Evid. 606(b), it was decided under Fed.
R. Evid. 606(b) which was incorporated into Tennessee law in State v. Blackwell, 664 S.W.2d 686, 688 (Tenn. 1984).
Caldararo, 794 S.W.2d at 741. The federal rule is almost identical to Tenn. R. Evid. 606(b), Walsh, 166 S.W.3d at 648,
n.3, except it does not list the ground involving a quotient or gambling verdict. Walsh, 166 S.W.3d at 646, n. 1 This
ground, however was recognized by Tennessee at the time of Caldararo. 794 S.W.2d at 742. In all other respects
relevant to the case, the federal rule and Rule 606(b) are the same, making the Caldararo decision applicable to the
interpretation of Tenn. R. Evid. 606(b).

                                                        -36-
        The appellate court noted that if a party is seeking a new trial based on alleged jury
misconduct, the first step is to satisfy the trial court that there is admissible evidence on the issue.
Id. at 741. In order to be “extraneous information” it must be “information from a source outside
the jury.” Id.

        External influences that could warrant a new trial if found to be prejudicial include:
        (1) exposure to news items about the trial, (2) consideration of facts not admitted in
        evidence, and (3) communications with non-jurors about the case. Government of
        Virgin Islands v. Gereau, 523 F.2d at 149-50; United States v. Blackston, 547
        F.Supp. at 1217. Internal influences that are not grounds to overturn a verdict
        include: (1) discussions among jurors, (2) intimidation or harassment of one juror by
        another, (3) a juror’s personal experiences not directly related to the litigation, and
        (4) a juror’s subjective thoughts, fears, and emotions. United States v. Norton, 867
        F.2d 1354, 1366 (11th Cir. 1989); United States v. Krall, 835 F.2d 711, 716 (8th Cir.
        1987); Carson v. Polley, 689 F.2d 562, 581 (Former 5th Cir. 1982); United States v.
        Duzac, 622 F.2d 911, 913 (5th Cir. 1980).

Id. at 742.

       While under the exception, a juror may testify to establish the fact of extraneous information
or improper influence, testimony about the effect of such information or influence on the deliberative
process is nevertheless still inadmissible. Walsh, 166 S.W.3d at 649. It is for the court to determine
“whether there is a reasonable possibility that the communication altered the verdict.” Walsh, 166
S.W.3d at 649, (quoting Haugh v. Jones & Laughlin Steel Corp., 949 F.2d 914, 917 (7th Cir. 1991)).

          The court in Caldararo did not believe that the juror making reference to his wife’s
occupation that then imputed to him an understanding of nursing entitled the Caldararos to a new
trial, stating:

        Jurors must render their verdict based on the evidence introduced at trial. See
        Citizens’ St. Ry. v. Burke, 98 Tenn. 650, 653, 40 S.W. 1085, 1085 (1897); Stone v.
        O’Neal, 19 Tenn. App. 512, 519, 90 S.W.2d 548, 552 (1936). However, they are
        permitted to weigh the evidence in light of their own knowledge and experience. See
        High v. Lenow, 195 Tenn. 158, 168, 258 S.W.2d 742, 746 (1953). Thus, trial courts
        routinely instruct juries, as the trial court did in this case, that “you are not required
        to set aside your common knowledge . . . as you have the right to weigh the evidence
        in light of your own observations and experiences.” See 8 Tenn. Prac. Tennessee
        Pattern Jury Instructions-Civil 1.15.

        It is virtually impossible to shield jurors from every contact or influence that might
        theoretically affect their vote. Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940,
        946, 71 L.Ed.2d 78 (1982). Thus, it would be unreasonable, and perhaps unwise, to
        expect juries to be completely sterilized and free of any external influences. The


                                                  -37-
       jurors’ various attitudes, philosophies, experiences, and backgrounds are the “very
       human elements that constitute one of the strengths of the jury system.” United
       States v. McKinney, 429 F.2d 1019, 1022-23 (5th Cir. 1970), cert. denied, 401 U.S.
       922, 91 S.Ct. 910, 27 L.Ed.2d 825 (1971).

       Accordingly, jurors are not required to be completely ignorant about a case, and a
       verdict will not be overturned because of jurors’ generalized knowledge of the parties
       or of some other aspect of the case. Government of Virgin Islands v. Gereau, 523
       F.2d at 151; Garcia v. State, 777 P.2d 603, 608 (Wyo. 1989). A juror’s personal
       experiences unrelated to the litigation are not external information. Martinez v. Food
       City, Inc., 658 F.2d at 374; United States v. Duzac, 622 F.2d at 913. However, a
       juror’s personal experiences directly relating to the parties or events directly involved
       in the litigation may be. Hard v. Burlington Northern R.R., 870 F.2d 1454, 1462 (9th
       Cir. 1989).

Id. at 743-744.

      We affirm the trial court’s denial of the motion for new trial on the ground of juror
misconduct.

                                         VII. CONCLUSION

        We reverse the judgment against Denim & Diamonds for both compensatory damages and
punitive damages. The case is remanded for further proceedings consistent with this opinion. The
costs of this appeal are taxed to the appellee, Gordon Collins.



                                                        ____________________________________
                                                        PATRICIA J. COTTRELL, JUDGE




                                                 -38-
