                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    March 19, 2002 Session

GORDON LAIN McCAMMON, ET AL. v. WILLIAM GIFFORD, SR., ET AL.

                      Appeal from the Circuit Court for Davidson County
                          No. 99C-2526     Walter C. Kurtz, Judge



                     No. M2001-01357-COA-R3-CV - Filed April 26, 2002


This appeal involves a guest of two residents of a campground who was badly burned when a can
of paint thinner ignited in his hosts’ camper. The guest filed a negligence action in the Circuit Court
for Davidson County against his hosts and the owner of the campground. The trial court dismissed
the claims against the owner of the campground on summary judgment after concluding that the
owner’s duty to render aid ended once the guest’s brother undertook to provide this assistance. We
affirm the summary judgment because the record contains no evidence that the guest’s brother was
incompetent to come to his aid.


      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

WILLIAM C. KOCH, JR., J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J., M.S.,
and BUDDY D. PERRY, SP. J., joined.

Bruce Balcom, Nashville, Tennessee, for the appellants, Gordon Lain McCammon, Gordon F.
McCammon, and Gale L. McCammon.

Kent E. Krause and Gordon C. Aulgur, Nashville, Tennessee, for the appellee, William Gifford, Sr.,
d/b/a OK Campground.

                                             OPINION

                                                  I.

       On September 13, 1998, Gordon Lain McCammon (“Lain McCammon”), then seventeen
years old, accompanied his brother Gordon Zachery McCammon (“Zach McCammon”) on a visit
with two of Zach McCammon’s friends, Benjamin Bidwell and Hayden Morin. Messrs. Bidwell and
Morin were living in a camper at the OK Campground while they were attending Nashville Auto
Diesel College. When the McCammon brothers arrived at the campground, they joined Messrs.
Bidwell and Morin in the camper’s small main room.
        Messrs. Bidwell and Morin were sitting in the camper cleaning paint brushes with paint
thinner when the McCammon brothers arrived. Approximately ten minutes later, Mr. Morin
knocked over an open can of paint thinner as he reached across the table to put his cigarette ashes
in an ashtray. When the paint thinner spilled, the embers from Mr. Morin’s cigarette ignited the
paint thinner causing a fire on the table. Mr. Bidwell threw the flaming can of paint thinner through
the door of the camper just as Lain McCammon was trying to get out of the camper to avoid the fire.
The burning paint thinner struck Lain McCammon and set his clothes on fire. He quickly removed
his pants and then fell to the ground and rolled in the gravel in an effort to put out the fire. When
Zach McCammon escaped from the trailer, Lain McCammon begged him to “stomp . . . [the fire]
out,” and so Zach McCammon kicked his brother until the flames subsided. Lain McCammon,
temporarily numb to the pain, made his way back into the camper with his brother’s help.

        Zach McCammon ran to the campground’s office seeking a first aid kit. A worker told him
that the campground did not keep medical supplies on hand and suggested that he go to a nearby
restaurant. When the restaurant likewise did not have supplies to treat burns, Zach McCammon
returned to the trailer to call his mother. Gale McCammon instructed her son to drive his brother
home so she could take him to the hospital. Zach McCammon complied, and Ms. McCammon drove
her son to the hospital. Lain McCammon was treated and released, and in October 1998 underwent
skin graft surgery to repair the burn site on his left leg. As a result of the burn, Lain McCammon
lost a substantial amount of muscle mass and the full range of motion in his left leg.

         In September 1999, Lain McCammon and his parents filed suit in the Circuit Court for
Davidson County against Messrs. Bidwell and Morin and William Gifford, Sr., the owner of the OK
Campground. They alleged that Mr. Gifford and his employees had acted negligently by permitting
campers to possess volatile material, by not requiring campers to have fire extinguishers, and by
failing to summon emergency personnel immediately after learning of Lain McCammon’s injuries.1
Following discovery, Mr. Gifford filed a motion for summary judgment.2 The trial court filed an
order on May 11, 2001, granting Mr. Gifford a summary judgment after concluding that his duty to
provide aid to Lain McCammon “ended when [the] plaintiff’s brother was found to be caring or
attempting to care for [the] plaintiff.” The trial court also certified this order as final in accordance
with Tenn. R. Civ. P. 54.02. Lain McCammon and his parents have perfected this appeal.


         1
          The McCamm ons apparently aband one d their claims that the campground should not have permitted the
camp ers to po ssess volatile m aterials and th at the cam pgroun d sho uld have required fire extingu ishers after Lain
McC amm on conce ded in his deposition that Mr. Gifford “couldn ’t do nothing abou t the paint thinner” and “co uldn’t
have stopped the burn.” His parents, who own a trailer park, also conceded that they permit residents to use paint
thinner when they are painting.

         2
            Mr. Gifford’s summary judgment motion does not comply with Tenn. R. Civ. P. 7.02(1) because it does not
“state with particularity the grounds therefor.” Instead of including the ground s for relief in his motion, Mr. Gifford
app arently explained why he believed he was entitled to a judgmen t as a matter of law in a memo randum of law
accompanying the motion. However, this memorandum, by operation of Tenn. R. App. P. 24( a), is not a part of the
app ellate record. We su rmise from the M cCam mon s’ response to the motion that M r. Gifford argued that his employee
had no d uty to seek me dical treatm ent fo r Lain McCamm on. S uffice it to say that articulating a defense in a
memorandum accompanying a motion does not amount to compliance with Tenn. R. Civ. P . 7.02 (1). Robinson v.
Clement, 65 S.W.3d 632, 635 n.2 (Tenn. Ct. App . 2001).

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                                                 II.
                                   THE STANDARD OF REVIEW

        The standards for reviewing summary judgments on appeal are well-settled. Summary
judgments are proper in virtually any civil case that can be resolved on the basis of legal issues
alone. Fruge v. Doe, 952 S.W.2d 408, 410 (Tenn. 1997); Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.
1993); Church v. Perales, 39 S.W.3d 149, 156 (Tenn. Ct. App. 2000). They are not, however,
appropriate when genuine disputes regarding material facts exist. Tenn. R. Civ. P. 56.04. Thus, a
summary judgment should be granted only when the undisputed facts, and the inferences reasonably
drawn from the undisputed facts, support one conclusion – that the party seeking the summary
judgment is entitled to a judgment as a matter of law. Webber v. State Farm Mut. Auto. Ins. Co., 49
S.W.3d 265, 269 (Tenn. 2001); Brown v. Birman Managed Care, Inc., 42 S.W.3d 62, 66 (Tenn.
2001); Goodloe v. State, 36 S.W.3d 62, 65 (Tenn. 2001).

        The party seeking a summary judgment bears the burden of demonstrating that no genuine
dispute of material fact exists and that it is entitled to a judgment as a matter of law. Shadrick v.
Coker, 963 S.W.2d 726, 731 (Tenn. 1998); Pendleton v. Mills, ___ S.W.3d ___, ___, 2001 WL
1089503 at *4 (Tenn. Ct. App. 2001). In order to be entitled to a judgment as a matter of law, the
moving party must either affirmatively negate an essential element of the non-moving party’s claim
or establish an affirmative defense that conclusively defeats the non-moving party’s claim. Byrd v.
Hall, 847 S.W.2d at 215 n. 5; Cherry v. Williams, 36 S.W.3d 78, 82-83 (Tenn. Ct. App. 2000).

         Summary judgments enjoy no presumption of correctness on appeal. Scott v. Ashland
Healthcare Ctr., Inc., 49 S.W.3d 281, 285 (Tenn. 2001); Penley v. Honda Motor Co., 31 S.W.3d
181, 183 (Tenn. 2000). Accordingly, appellate courts must make a fresh determination that the
requirements of Tenn. R. Civ. P. 56 have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51
(Tenn. 1997); Mason v. Seaton, 942 S.W.2d 470, 472 (Tenn. 1997). We must consider the evidence
in the light most favorable to the non-moving party, and we must resolve all inferences in the non-
moving party’s favor. Doe v. HCA Health Servs., Inc., 46 S.W.3d 191, 196 (Tenn. 2001); Memphis
Hous. Auth. v. Thompson, 38 S.W.3d 504, 507 (Tenn. 2001). When reviewing the evidence, we
must determine first whether factual disputes exist. If a factual dispute exists, we must then
determine whether the fact is material to the claim or defense upon which the summary judgment
is predicated and whether the disputed fact creates a genuine issue for trial. Byrd v. Hall, 847
S.W.2d at 214; Rutherford v. Polar Tank Trailer, Inc., 978 S.W.2d 102, 104 (Tenn. Ct. App.1998).

                                              III.
                                    THE DUTY TO RENDER AID

        The outcome of this appeal hinges on the scope of the campground’s duty to render aid to
social guests of their campers. The McCammons assert that the campground had a duty to “seek
immediate medical treatment” for Lain McCammon even though his brother had already taken
charge of the situation and was providing him aid. While the precise contours of the McCammons’
understanding of the campground’s duty to render aid is unclear, their insistence that the



                                                -3-
campground was obligated to second guess Zach McCammon goes far beyond the common-law duty
to render aid.

                                                   A.

        Persons seeking to recover damages caused by another’s negligence must prove: (1) that the
defendant owed them a duty of care; (2) that the defendant breached that duty by engaging in
conduct falling below the applicable standard of care; (3) that they suffered an injury or loss; (4) that
the defendant’s conduct was a cause in fact of their injury or loss; and (5) that the defendant’s breach
of duty was the proximate, or legal, cause of their injury or loss. Staples v. CBL & Assocs. Inc., 15
S.W.3d 83, 89 (Tenn. 2000); Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn. 1993); Lett v. Collis
Foods, Inc., 60 S.W.3d 95, 99 (Tenn. Ct. App. 2001). Plaintiffs who are unable to demonstrate that
they will be able to establish any one of these elements at trial will not survive a summary judgment
motion challenging their claim.

        The McCammons’ appeal implicates the first two elements of their negligence claim against
Mr. Gifford – the nature and scope of Mr. Gifford’s duty to Lain McCammon and Mr. Gifford’s
breach of that duty. These questions are ripe for disposition by summary judgment in this case for
two reasons. First, the nature and extent of Mr. Gifford’s duty to social guests of campers staying
at his campground is a question of law to be decided by the courts. Staples v. CBL & Assocs., Inc.,
15 S.W.3d at 89; Green v. Sacks, 56 S.W.3d 513, 519 (Tenn. Ct. App. 2001). Second, there are no
material factual disputes regarding Zach McCammon’s ability to come to his brother’s assistance.
If not already evident, the pivotal importance of Zach McCammon’s competence will shortly
become clear.

        The existence of a duty owed by the defendant to the plaintiff is a necessary ingredient of
every negligence case. Church v. Perales, 39 S.W.3d at 163. Determining whether a duty exists in
the circumstances of a particular case requires the court to decide whether the plaintiff has a legal
interest which is entitled to protection at the hands of the defendant. Bradshaw v. Daniel, 854
S.W.2d at 869-70. In this context, duty connotes the obligation to act reasonably to protect another
from an unreasonable risk of harm. McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995); Heatherly
v. Merrimack Mut. Fire Ins. Co., 43 S.W.3d 911, 915 n.2 (Tenn. Ct. App. 2000).

        The courts will decline to impose a duty to protect against conditions from which no
unreasonable risk of harm can be anticipated. Rice v. Sabir, 979 S.W.2d 305, 309 (Tenn. 1998);
Psillas v. Home Depot, USA, Inc., 66 S.W.3d 860, 865 (Tenn. Ct. App. 2001). A risk of harm is
unreasonable if the foreseeable probability and gravity of the harm outweigh the burden imposed on
the defendant to correct the harm. McCall v. Wilder, 913 S.W.3d at 153; Basily v. Rain, Inc., 29
S.W.3d 879, 883 (Tenn. Ct. App. 2000). When deciding whether a particular risk of harm is
unreasonable, the courts consider (1) the foreseeable probability of the harm occurring, (2) the
potential magnitude of the harm, (3) the importance, social value, and usefulness of the defendant’s
activities, (4) the feasibility and the relative costs and burdens of alternative, safer conduct, and (5)
the usefulness and relative safety of the alternative, safer conduct. Coln v. City of Savannah, 966



                                                  -4-
S.W.2d 34, 39 (Tenn. 1998), clarified in Cross v. City of Memphis, 20 S.W.3d 642, 644 (Tenn.
2000); McCall v. Wilder, 913 S.W.2d at 153.



                                                            B.

         Most American courts, being reluctant to base fault on “nonfeasance”,3 have traditionally
held that an innocent bystander has no duty to provide affirmative aid to an injured person, even
when the bystander has the ability to help. W. Page Keeton, Prosser and Keeton on the Law of Torts
§ 56, at 375 (5th Ed. 1984); Restatement (Second) of Torts § 314 (1965). This no-duty-to-render-aid
rule has been under withering academic attack for decades. See, e.g., Peter F. Lake, Bad Boys, Bad
Men, and Bad Case Law: Re-examining the Historical Foundation of No-Duty-to-Rescue Rules, 43
N.Y.L. Sch. L. Rev. 385, 385-86 (1999). Instead of abandoning the rule outright in favor of some
rule of universal application, the courts have circumvented the rule by carving out exceptions in
cases where some “special relation” between the parties provides a justification for imposing a duty
to render aid. See Cecil v. Hardin, 575 S.W.2d 268, 270 (Tenn. 1978).

        When courts find that a “special relation” exists, they will recognize a duty to aid and protect
that includes (1) the duty to protect against unreasonable risks of physical harm4 and (2) the duty to
give first aid to ill or injured persons until they can be cared for by others. Restatement (Second)
of Torts § 314A(1)(a) & (b). The Restatement’s duty to render aid is a “milder” duty requiring
persons to exercise reasonable care under the circumstances. 3 Fowler V. Harper et. al., The Law
of Torts § 18.6, at 720 (2d ed. 1986). Thus, the Restatement recognizes that persons are not required
to give aid to persons whom they have no reason to know to be ill or injured or whose illness or
injury does not appear to be serious or life-threatening. Restatement (Second) of Torts § 314A cmt.
e. The Restatement also recognizes:

                               The defendant is not required to take any action until he [or
                     she] knows or has reason to know that the plaintiff is endangered, or
                     is ill or injured. He is not required to take any action beyond that
                     which is reasonable under the circumstances. In the case of an ill or
                     injured person, he will seldom be required to do more than give such
                     first aid as he reasonably can, and take reasonable steps to turn the
                     sick . . . [person] over to a physician, or to those who will look after
                     him and see that medical assistance is obtained. He is not required to
                     give any aid to one who is in the hands of apparently competent
                     persons who have taken charge of him, or whose friends are present
                     and are apparently in a position to give him all necessary assistance.


         3
          A failure to act ca n im pose no liability in the ab sence of an existing d uty to act. Dabbs v. Tennessee Valley
Auth., 194 Ten n. 18 5, 19 0, 25 0 S.W .2d 6 7, 69 (1952); see also Bradshaw v. Daniel, 854 S.W.2d at 870.

         4
             Rice v. Sabir, 979 S.W .2d at 308 ; Psillas v. Home Depot, U.S.A., Inc., 66 S.W.3d at 864.

                                                            -5-
Restatement (Second) of Torts § 314A cmt. f. Accordingly, the duty to render aid does not extend
to providing all medical care that a business could reasonably foresee might be needed by its patrons,
Lundy v. Adamar of New Jersey, Inc., 34 F.3d 1173, 1179 (3d Cir. 1994), or to provide the sort of
aid that requires special training to administer. Applebaum v. Nemon, 678 S.W.2d 533, 537 (Tex.
App. 1984).

        Restatement (Second) of Torts § 314A contains a non-exclusive list5 of four special relations
from which the duty to render aid will arise. One of these is the relation between a “possessor of
land who holds it open to the public . . . [and] members of the public who enter in response to his
invitation.” Restatement (Second) of Torts § 314A(3). Accordingly, Tennessee’s courts have
imposed the duty to render aid on hosts with regard to their social guests, Lindsey v. Miami Dev.
Corp., 689 S.W.2d 856, 860 (Tenn. 1985), and on businesses with regard to customers on their
premises. Kirksey v. Overton Pub, Inc., 804 S.W.2d 68, 78 (Tenn. Ct. App. 1990). They have also
adopted the limitation on this duty in Restatement (Second) of Torts § 314A cmt. f by holding that
a person “is not required to render any aid to one who is in the hands of apparently competent
persons who have taken charge of him or whose friends are present and apparently in a position to
give him the necessary assistance.” Kirksey v. Overton Pub, Inc., 804 S.W.2d at 78.

        None of our duty-to-provide-aid cases have addressed whether property owners who lease
or otherwise rent their property to others owe a duty to provide aid to the social invitees of their
guests, tenants, or customers.6 As a general matter, property owners do not have a duty to render aid
with regard to injuries or illness occurring on the portion of the property occupied, possessed, and
under the control of the tenant. See Samson v. Saginaw Prof’l Bldg., Inc., 224 N.W.2d 843, 849
(Mich. 1975); Lethcoe v. Holden, 31 S.W.3d 254, 256 (Tenn. Ct. App. 2000) (holding that a landlord
is generally not liable for a dangerous condition on leased premises). However, a duty to render aid
will arise when the ill or injured person is in a common area or another area not possessed by a
tenant, guest, or customer. Shackett v. Schwartz, 258 N.W.2d 543, 547 (Mich. Ct. App. 1977);
Tedder v. Raskin, 728 S.W.2d 343, 347-48 (Tenn. Ct. App. 1987).

                                                             C.

        Lain McCammon, as a social guest of Messrs. Bidwell and Morin, was an invitee of the OK
Campground.7 Accordingly, a “special relation” existed between him and the campground that was
sufficient to impose a duty on Mr. Gifford and his employees to render when they learned that Lain


         5
         Restatement (Second) of Torts § 314A cm t. b (stating that the relations listed are not inten ded to be exclusive);
Newton v. Tinsley, 970 S.W.2d 490, 493 (Tenn. Ct. App. 1997) (noting that the special relations mentioned in the
Restatement are not exclusive).

         6
           The injuries in Lind sey v. M iam i Dev . Corp. occurred on leased property. While the Tennessee Su preme C ourt
held that the host/tenant owed a duty to render reasonable aid to his intoxicated social guest after she fell from a balcony,
it did not add ress the duty of the owner of the premises.

         7
          Emerine v. Scaglione, 751 So. 2d 73, 74 (Fla. Dist. Ct. App. 1999) (holding that a social guest of a tenant of
a cam pgroun d w as an invitee of the cam pgroun d).

                                                            -6-
McCammon was lying injured in a common area of the campground. However, this duty to render
aid did not require Mr. Gifford or his employees to “seek immediate medical treatment” for Lain
McCammon if, when they learned of his injury, they also learned that he was in the hands of persons
who were apparently competent to give him appropriate assistance.


        While the McCammons characterize Zach McCammon as “distrought” over his brother’s
injury, they have never asserted that he was incompetent or incapable of aiding his brother or that
his actions were somehow obviously inappropriate. The undisputed facts demonstrate that Zach
McCammon was cool-headed enough to seek a first aid kit and to telephone his mother for
assistance. It was Ms. McCammon and Zach McCammon who decided to drive Lain McCammon
to the hospital rather than directing Zach McCammon to call an ambulance to the scene. Thus, in
light of the undisputed facts, the campground had no duty to seek immediate medical treatment for
Lain McCammon because his brother was acting competently to render him the aid he needed. The
campground was certainly not required to second guess Ms. McCammon’s decision to drive the boy
to the hospital instead of calling an ambulance.

                                               IV.

       We affirm the summary judgment and remand the case to the trial court for whatever further
proceedings may be required. We also tax the costs of this appeal, jointly and severally, to Gordon
Lain McCammon, Gordon F. McCammon, and Gale L. McCammon and their surety for which
execution, if necessary, may issue.


                                                     _____________________________
                                                     WILLIAM C. KOCH, JR., JUDGE




                                               -7-
