                    IN THE SUPREME COURT OF TENNESSEE
                               AT NASHVILLE
                                      June 3, 2008 Session

  DIANE DOWNS EX REL. RYAN CODY DOWNS v. MARK BUSH ET AL.

               Appeal by permission from the Court of Appeals, Middle Section
                             Circuit Court for Davidson County
                          No. 04C470    Barbara N. Haynes, Judge



                   No. M2005-01498-SC-R11-CV - Filed September 10, 2008



We granted the plaintiff’s application for permission to appeal in this wrongful death case to
determine whether the trial court properly granted summary judgment to each of the defendants. The
Court of Appeals affirmed the grant of summary judgment. Although the parties have raised several
issues in this appeal, the central issue is the nature of the legal duty, if any, owed by the defendants
to the plaintiff’s decedent. The decedent was socializing and consuming alcohol with the
defendants. While riding in a four-door pick-up truck with the defendants, he became ill. The
defendants stopped the truck on the side of an interstate highway so the decedent could vomit. After
resuming the trip, the decedent rode in the bed of the truck and, for reasons unknown, exited it.
After exiting the truck, he was struck by two vehicles and subsequently died. Upon careful review
of the record and applicable authority, we conclude that there are genuine issues of material fact as
to whether the defendants placed the decedent in the bed of the truck. Similarly, we conclude that
there are genuine issues of material fact as to whether the decedent was helpless and whether the
defendants took charge of him. Lastly, we hold that none of the defendants stood in any special
relationship with the plaintiff’s decedent and consequently they did not assume any affirmative duty
to aid or protect him. We therefore reverse the judgment of the Court of Appeals and remand this
case to the trial court for further proceedings.

 Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals is Reversed
                                    and Remanded

WILLIAM M. BARKER , C.J., delivered the opinion of the court, in which CORNELIA A. CLARK and
GARY R. WADE, JJ., and FRANK F. DROWOTA , III, SP .J., joined. JANICE M. HOLDER , J., concurring
and dissenting.

Donald N. Capparella, Charles P. Yezbak, III, and Amy J. Farrar, Nashville, Tennessee, for the
appellant, Diane Downs.

C. Benton Patton and Christopher M. Jones, Nashville, Tennessee, for the appellee, Mark Bush.
W. Bryan Brooks and Alisha M. Toll, Nashville, Tennessee, for the appellee, Ryan F. Britt.

R. Kreis White, Brentwood, Tennessee, for the appellee, Jerry Dane Eller.

Barry L. Howard and Melissa Bradford Muller, Nashville, Tennessee, for the appellee Scott Hurdle.

Samuel R. Anderson, Chattanooga, Tennessee, for the Amicus Curiae, The Property Casualty
Insurers Association of America.


                                            OPINION

                                       Standard of Review

       This wrongful death case came to this Court following the trial court’s grant of summary
judgment to each of the defendants, which the Court of Appeals affirmed. Summary judgment is
appropriate when the moving party establishes that there is no genuine issue as to any material fact
and that a judgment may be rendered as a matter of law. Tenn. R. Civ. P. 56.04; West v. E. Tenn.
Pioneer Oil Co., 172 S.W.3d 545, 550 (Tenn. 2005); Penley v. Honda Motor Co., 31 S.W.3d 181,
183 (Tenn. 2000); Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). In reviewing a motion for
summary judgment, we construe the evidence and all reasonable inferences to be drawn from the
evidence in the light most favorable to the non-moving party. Mooney v. Sneed, 30 S.W.3d 304,
305-06 (Tenn. 2000). A trial court’s grant of a motion for summary judgment presents a question
of law which this Court reviews de novo without a presumption of correctness. Lawrence County
Educ. Ass’n v. Lawrence County Bd. of Educ., 244 S.W.3d 302, 309 (Tenn. 2007).

        A party is entitled to summary judgment only when “the facts and conclusions to be drawn
therefrom permit a reasonable person to reach only one conclusion.” Seavers v. Methodist Med.
Ctr., 9 S.W.3d 86, 91 (Tenn. 1999). While summary judgment is an efficient means of deciding
cases dependant solely on questions of law, see Brookins v. Round Table, Inc., 624 S.W.2d 547, 550
(Tenn. 1981), “it should not replace a trial when disputed factual issues exist, because its purpose
is not to weigh the evidence, to resolve factual disputes, or to draw inferences from the facts.”
Rollins v. Winn Dixie, 780 S.W.2d 765, 767 (Tenn. Ct. App. 1989) (citing Jones v. Home Indem.
Ins. Co., 651 S.W.2d 213, 214 (Tenn. 1983)) (internal citations omitted).

                             Factual and Procedural Background

        The following facts are presented in a light most favorable to the non-moving party, the
plaintiff. This lawsuit arises out of the death of eighteen-year old Ryan Cody Downs, who died after
being struck by two vehicles on Interstate 65 in Nashville, Tennessee. During the evening hours of
Saturday, February 15, 2003, Mr. Downs along with five other young men came together at his
apartment for a night of socializing, including consuming alcohol. Mr. Downs was joined by Ryan



                                                -2-
Britt, Mark Bush, Jerry Dane Eller, Kevin Deans,1 and Scott Hurdle. Mr. Downs, Mr. Britt, Mr.
Bush, and Mr. Eller were all classmates at Nashville Auto Diesel College (“NADC”), and Mr. Deans
and Mr. Hurdle were in Nashville visiting from Mr. Downs’ and Mr. Britt’s hometown in North
Carolina.

       Mr. Downs and Mr. Britt were longtime friends who had grown up together in North
Carolina. Mr. Britt testified in his deposition that he and Mr. Downs consumed alcohol almost every
weekend since they were fifteen or sixteen years old and that when Mr. Downs was drinking alcohol,
“he would never be satisfied until he had had too much.” Mr. Britt stated that he could tell when Mr.
Downs was “drunk” because of his “stumbling, talking, [and] his actions.” Mr. Britt described Mr.
Downs as “wild.” For example, Mr. Downs’ antics included causing water pipes to leak in class,
placing “a Playboy picture in the teacher’s desk [and] tak[ing] the barrel off of a dust collector and
throw[ing] sawdust all over people.” Moreover, Mr. Downs had been arrested previously for
underage consumption of alcohol and helping Mr. Britt spray paint a Confederate flag and noose on
a water tower.

        After high school, Mr. Britt and Mr. Downs enrolled in NADC. While attending school, they
shared an apartment on Glastonbury Drive. Mr. Britt invited Mr. Hurdle and Mr. Deans to visit
Nashville and to spend the weekend with him and Mr. Downs at their apartment. At approximately
7:00 pm on that Saturday, Mr. Britt also invited Mr. Bush and Mr. Eller to join them. Even though
Mr. Downs, Mr. Britt, Mr. Bush, and Mr. Deans were all under the legal drinking age of twenty-one,
they and Mr. Hurdle consumed alcohol. Specifically, Mr. Downs was drinking “Seagram’s Seven.”
Mr. Eller, however, did not consume any alcohol that night. At some point during the evening, Mr.
Downs suggested that the group go to a party at an apartment near the Cool Springs mall in nearby
Franklin, Tennessee. The group agreed to ride in Mr. Hurdle’s four-door pick-up truck, and Mr.
Eller agreed to be the designated driver because he had not been consuming alcohol. Mr. Britt
observed that Mr. Downs was acting “wild” and “hollering a little bit, screaming a little bit” when
the group left the apartment. Furthermore, Mr. Britt opined that Mr. Downs was the most
intoxicated member of the group.

        The group traveled south on Interstate 65 to the Cool Springs mall-area in search of the
party.2 Some members of the group brought alcoholic drinks along for the trip, one of which either
Mr. Downs or Mr. Deans spilled on the back-seat of the truck. Eventually, the group found their
destination. However, when they entered the apartment they discovered that there was no party but




         1
             Mr. Deans, Mr. Downs’ half-brother, was not named as a defendant in this case.

         2
            W hile searching for their destination within the apartment complex, the group saw a party going on at
another apartment and, even though he did not know anyone at this party, Mr. Deans decided to exit the truck and
attend that party instead of the one that the group was seeking. Mr. Deans did not return to Mr. Downs’ and Mr.
Britt’s apartment until sometime after the remainder of the group returned to the apartment.

                                                         -3-
only one woman, the tenant.3 According to Mr. Britt, Mr. Downs continued to consume alcohol once
they reached the apartment and was becoming more intoxicated as the night progressed. Not long
after entering the apartment, Mr. Downs became belligerent, destructive, and obnoxious. Mr. Eller
described the situation as follows in his deposition:

                          This is at the point when [Mr. Downs] started to act up . . . .
                  When we all got there and everybody went in, he was normal, fine,
                  standing there with the rest of us. The next minute, he feels like he
                  needs to run through this lady’s house that we don’t know and go in
                  her bedroom and shut the door. . . . And then he would come out and
                  then just stood [sic] there with the rest of us. . . . and then he would
                  do something else.

        That something else included spilling a drink on the floor and knocking over some personal
property. At that point, the tenant insisted that Mr. Downs leave her apartment. Mr. Britt attempted
to take Mr. Downs’ alcoholic drink away from him, but he resisted. Mr. Britt stated in his deposition
that “[h]e was kind of fighting me over the glass and said if we didn’t let him have it, he was going
to tear her house all to pieces, as we were leaving.” As the group left the apartment and were
walking back to the truck, Mr. Downs kicked the front doors of several neighboring apartments. The
group got back in the truck and again Mr. Eller drove while Mr. Hurdle sat in the front-passenger
seat. Mr. Downs sat in the middle back-seat with Mr. Britt on his left behind the driver’s seat and
Mr. Bush on his right behind the passenger’s seat. The group decided to return to Mr. Downs’ and
Mr. Britt’s apartment. During the return trip on Interstate 65, Mr. Downs became nauseous and
started to “dry-heave.” Mr. Eller stopped the truck on the side of the interstate highway and Mr.
Downs along with Mr. Britt, Mr. Bush, and possibly Mr. Hurdle,4 exited the truck. As he was
exiting the truck, Mr. Downs broke off a piece of the truck’s plastic molding. Once out of the truck,
Mr. Downs vomited on the side of the road.

        After vomiting, Mr. Downs continued the return trip in the bed of the truck. However, the
parties dispute whose idea it was for Mr. Downs to ride in the bed of the truck and whether the
defendants helped “put” him there. With respect to any conversations about Mr. Downs riding in
the bed of the truck, Mr. Bush and Mr. Hurdle testified in their depositions that none of the
defendants discussed Mr. Downs riding in the bed of the truck. Conversely, Mr. Britt stated that it
was a “group decision.” Moreover, according to Mr. Eller’s deposition, Mr. Hurdle and Mr. Britt
discussed Mr. Downs riding in the bed of the truck. Additionally, Mr. Eller stated in his statement




         3
           It is unclear from the record how or if Mr. Downs knew the tenant. The plaintiff testified in her
deposition that when she spoke to the tenant, she told the plaintiff that she did not know Mr. Downs or any other
member of the group.

         4
           Mr. Hurdle stated in his deposition that he did not exit the truck; however, Mr. Eller testified that Mr.
Hurdle did, in fact, exit the truck.

                                                          -4-
to the police officers investigating Mr. Downs’ death that Mr. Hurdle wanted “to put [Mr. Downs]
in the back so he wouldn’t vomit all over the truck.”5

        Likewise, the record is unclear whether the defendants assisted Mr. Downs into the bed of
the truck, physically put him there, or whether he voluntarily agreed to ride there. Mr. Britt stated
that he helped Mr. Downs, but that Mr. Downs climbed into the bed under his own strength. In other
words, Mr. Britt did not physically grab Mr. Downs and lift him up into the bed of the truck. Mr.
Hurdle’s testimony supports Mr. Britt’s statement. Mr. Bush, on the other hand, testified that Mr.
Britt did not assist Mr. Downs, but that he only shut the tailgate after Mr. Downs climbed into the
bed of the truck. Mr. Bush, Mr. Britt, and Mr. Eller agreed that Mr. Downs did not object to riding
in the bed of the truck.

        In their statements to the investigating police officers, the defendants made the following
statements: Mr. Britt stated that he “put [Mr. Downs] in the bed of the truck.” Similarly, Mr. Bush
stated that Mr. Britt “opened the tailgate and put [Mr. Downs] in the back.” Mr. Hurdle stated that
Mr. Britt “said put [Mr. Downs] in the back and [Mr. Britt] helped him into the back.” Lastly, Mr.
Eller stated that Mr. Britt “helped him get into the back.” Regardless, of whose idea it was or
whether the defendants helped or physically put Mr. Downs in the bed of the truck, it is undisputed
that he continued the return trip alone and unrestrained in the bed of the truck.

         Shortly after resuming the trip, Mr. Downs started beating on the truck’s rear window. Mr.
Eller began to pull the truck over a second time when he was advised by another member of the
group to continue driving because Mr. Downs had either sat or laid back down in the bed.6 Likewise,
the parties disagree whether Mr. Eller came to a complete stop or not.

       At some point after resuming the trip, the members of the group realized that Mr. Downs was
no longer in the bed of the truck. No one in the group knew when, why, how, or where Mr. Downs
had exited the bed of the truck. The group returned to the apartment and began searching for Mr.
Downs at the apartment complex, believing that perhaps he had jumped out of the bed near the
apartment complex and was playing a prank on them. No one went looking for Mr. Downs or
contacted the police.

        The record does not reveal what happened to Mr. Downs after he exited the bed of the truck
until he was observed by Melissa Barrell, one of the passengers in the first vehicle that struck him




         5
          In his deposition, Mr. Hurdle denied saying that he wanted Mr. Downs to ride in the bed of the truck to
avoid Mr. Downs vomiting in his truck.

         6
           Mr. Eller testified in his deposition that he could not see Mr. Downs once he was in the bed of the truck
because of a toolbox and dark tinting on the rear window.

                                                         -5-
on Interstate 65. Ms. Barrell testified by affidavit that as she and her husband,7 the driver, were
traveling north on the interstate highway, she saw Mr. Downs approximately ten to fifteen feet ahead
of their vehicle on the side of the road and that he was crouched in a “runner’s stance.” Mr. Downs
then ran into their lane of traffic. Immediately upon seeing Mr. Downs run into their lane, Ms.
Barrell yelled out to her husband, who swerved, but unfortunately struck Mr. Downs. The vehicle
behind the Barrell’s vehicle also struck Mr. Downs. Ms. Barrell called 9-1-1, and Mr. Downs was
taken to Vanderbilt University Hospital where he subsequently died as a result of his injuries.

        Mr. Downs’ mother, Diane Downs, filed this lawsuit seeking damages for the wrongful death
of her son alleging that the defendants intentionally or negligently put him in the bed of truck.
Additionally, the plaintiff claims that the defendants’ conduct constituted the tort of outrageous
conduct.8 Each of the defendants filed a motion for summary judgment. Generally, the defendants
argued that they did not owe or breach any duty of care, and that even if any duty of care was owed
and breached, Mr. Downs’ act of running into a lane of traffic was an independent, intervening cause
that negated an essential element of the plaintiff’s claims. The trial court granted summary judgment
to each of the defendants on both claims. The orders granting summary judgment, however, did not
provide any legal grounds upon which the motions were granted.9

        The Court of Appeals affirmed the trial court’s decision to grant summary judgment to each
of the defendants. The intermediate appellate court concluded that only the driver, Mr. Eller, and
the owner of the truck, Mr. Hurdle, owed Mr. Downs a duty of care. The court went on to hold that
there was no basis to support a conclusion that either of these defendants breached his duty of care.
In addition, the Court of Appeals held that the trial court could also have properly dismissed the
plaintiff’s lawsuit because Mr. Downs’ act of running into a lane of traffic was an independent,
intervening cause that negated an essential element -- proximate or legal cause -- of the plaintiff’s
claims.

      The plaintiff appealed and raised a number of issues related to the nature of the legal duty
owed by the defendants to Mr. Downs. The plaintiff argues each of the defendants breached a duty


         7
          Mr. Barrell was originally named as a defendant in this lawsuit, but the trial court granted his motion for
summary judgment and the plaintiff did not appeal that decision.

         8
            In her application for permission to appeal, the plaintiff did not present the issue of whether the trial court
erred in granting summary judgment to each of the defendants with respect to the outrageous conduct claim.
However, she did brief the issue and the defendants responded in their briefs. According to Tennessee Rule of
Appellate Procedure 11(b), the application for permission to appeal “shall contain: . . . (2) the questions presented
for review.” W e conclude that the plaintiff abandoned this issue on appeal to this Court because she did not present
it in her application for permission to appeal. However, even if she had properly presented the issue, the Court of
Appeals correctly affirmed the trial court’s decision to grant the defendants’ motions for summary judgment on the
outrageous conduct claim.

         9
             Effective July 1, 2007, Tennessee Rule of Civil Procedure 56.04 was amended and now provides: “The
trial court shall state the legal grounds upon which the court denies or grants the motion which shall be included in
the order reflecting the court’s ruling.”

                                                           -6-
of reasonable care because they helped “put” Mr. Downs in the bed of the truck. She reasons that
this act created a foreseeable and unreasonable risk of harm to her son. Moreover, the plaintiff
contends that all of the defendants assumed an affirmative duty to aid or protect Mr. Downs because
he was helpless and they took charge of him. Lastly, the plaintiff insists that Mr. Britt, Mr. Eller,
and Mr. Hurdle assumed an affirmative duty to aid or protect her son because they each stood in a
special relationship to him.

        We granted review. For the reasons set forth below, we hold that the trial court erred in
granting summary judgment to each of the defendants. The question of whether the defendants
helped “put” Mr. Downs in the bed of the truck is a genuine issue of material fact that precludes
summary judgment in this case. Similarly, we hold that the questions of whether the defendants
took charge of Mr. Downs and whether he was helpless are genuine issues of material fact that
preclude summary judgment as well. These facts are material because they determine the nature of
the legal duty owed by the defendants to Mr. Downs. However, we disagree with the plaintiff that
Mr. Britt, Mr. Eller, and Mr. Hurdle assumed an affirmative duty to aid or protect Mr. Downs,
because they did not stand in any special relationship with him.

                             Duty Principles Under Tennessee Law

                                                 A.

        In order to prevail on a claim of negligence, the plaintiff must prove by a preponderance of
the evidence the following elements: “(1) a duty of care owed by the defendant to the plaintiff; (2)
conduct by the defendant falling below the standard of care amounting to a breach of that duty; (3)
an injury or loss; (4) cause in fact; and (5) proximate or legal cause.” West, 172 S.W.3d at 550; see
also McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995). The question in this appeal centers on
the duty of care, if any, owed to Mr. Downs.

        A duty of care is “the legal obligation owed by defendant to plaintiff to conform to a
reasonable person standard of care for the protection against unreasonable risks of harm.” McCall,
913 S.W.2d at 153. The common law has long recognized that an individual has a duty to exercise
reasonable care in his or her activities in order to prevent unreasonable risks of harm from arising.
West, 172 S.W.3d at 550; Draper v. Westerfield, 181 S.W.3d 283, 291 (Tenn. 2005); Doe v. Linder
Constr. Co., 845 S.W.2d 173, 177 (Tenn. 1992). The duty of reasonable care acts as a restraint upon
an individual’s activities. See Turner v. Jordan, 957 S.W.2d 815, 818 (Tenn. 1997) (stating that
generally “a person has a duty to use reasonable care to refrain from conduct that will foreseeably
cause injury to others.”).

        While individuals have an obligation to refrain from acting in a way that creates an
unreasonable risk of harm to others, the law generally does not impose on individuals an affirmative
duty to aid or protect others. Draper, 181 S.W.3d at 291; Bradshaw v. Daniels, 854 S.W.2d 865, 871
(Tenn. 1993); Restatement (Second) of Torts § 314 (1965). In other words, where an alleged
tortfeasor does nothing to create or allow an unreasonable risk of harm, but instead the complaining


                                                -7-
party himself or herself creates the unreasonable risk or voluntarily assumes an unreasonable risk,
there is no duty on the part of the alleged tortfeasor to take action to prevent the harm. However,
Tennessee courts have consistently recognized exceptions to this “no duty to act” rule. Bradshaw,
854 S.W.2d at 872; McClung v. Delta Square Ltd. P’ship, 937 S.W.2d 891, 904 (Tenn. 1996);
Restatement (Second) of Torts § 314A. For example, if an individual stands in a special relationship
to another individual who is the source of the danger or who is foreseeably at risk from the danger,
then the individual assumes an affirmative duty to exercise reasonable care to either control the
danger or protect the vulnerable. West, 172 S.W.3d at 551; Biscan v. Brown, 160 S.W.3d 462, 478-
79 (Tenn. 2005). We have previously recognized such special relationships to include those of
innkeeper and guest, common carrier and passenger, possessors of land and guests, social host and
guest, and those who have custody over another. See Bradshaw, 854 S.W.2d at 872; McClung, 937
S.W.2d at 895; Lindsey v. Miami Dev. Corp., 689 S.W.2d 856, 860 (Tenn. 1985); Restatement
(Second) of Torts § 314A. Similarly, an individual may assume an affirmative duty by coming to
the aid of or rescuing another individual. See Lindsey, 689 S.W.2d at 859; Restatement (Second)
of Torts §§ 323 & 324. The following example illustrates this concept:

                        A is run over by an automobile and left lying in the street. B,
               seeing A’s helpless condition, takes him in his car for the purpose of
               taking him to a hospital. B drives the car so negligently that he runs
               into a tree. The collision greatly increases A’s original injuries. B is
               subject to liability to A for so much of the harm to him as is due to
               the collision.

Restatement (Second) of Torts § 324 illust. 1.

        Tennessee courts determine whether a defendant owes or assumes a duty of care to a
particular plaintiff by considering public policy and whether the risk of harm is unreasonable.
Burroughs v. Magee, 118 S.W.3d 323, 329 (Tenn. 2003); Turner, 957 S.W.2d at 818. Public policy
considerations are relevant because “the imposition of a legal duty reflects 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.” Bradshaw, 854 S.W.2d at 870.

         With respect to whether the risk of harm is unreasonable, we have previously stated that “[a]
risk is unreasonable and gives rise to a duty to act with due care if the foreseeable probability and
gravity of harm posed by defendant’s conduct outweigh the burden upon defendant to engage in
alternative conduct that would have prevented the harm.” McCall, 913 S.W.2d at 153. We have also
noted that the following factors should be considered in deciding whether or not a risk is
unreasonable:

               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 defendant; the feasibility of
               alternative, safer conduct and the relative costs and burdens


                                                 -8-
                  associated with that conduct; the relative usefulness of the safer
                  conduct; and the relative safety of alternative conduct.

McCall, 913 S.W.2d at 153 (citing Restatement (Second) of Torts §§ 292, 293); see Biscan, 160
S.W.3d at 479-80; Burroughs, 118 S.W.3d at 329.

         The foreseeability of the harm is a key factor in the equation because, in general terms,
“[f]oreseeability is the test of negligence.” West, 172 S.W.3d at 552 (quoting Linder Constr. Co.,
845 S.W.2d at 178); Hale v. Ostrow, 166 S.W.3d 713, 716-17 (Tenn. 2005). “‘A risk is foreseeable
if a reasonable person could foresee the probability of its occurrence or if the person was on notice
that the likelihood of danger to the party to whom is owed a duty is probable.’” West, 172 S.W.3d
at 551 (quoting Linder Constr. Co., 845 S.W.2d at 178). However, foreseeability alone does not
create a duty to exercise reasonable care. McClung, 937 S.W.2d at 904. If the risk is foreseeable,
then courts should weigh the remaining factors to determine if an imposition of duty is justified. In
the end, whether a defendant owed or assumed a duty of care to a plaintiff is a question of law for
the court to decide. West, 172 S.W.3d at 550; Stewart v. State, 33 S.W.3d 785, 793 (Tenn. 2000).

                                                          B.

         Turning to the case at bar, the plaintiff argues that all of the defendants helped “put” Mr.
Downs in the bed of the truck and this act created a foreseeable and unreasonable risk of harm. The
defendants counter that Mr. Downs climbed into the bed of the truck under his own strength and
consented to ride there. The Court of Appeals stated that as a matter of law the fact that Mr. Downs
was riding in the bed of the truck was of no significance because there is no statutory or common
law prohibition against this act. We respectfully disagree with the lower court’s rationale. A jury
could easily conclude that the dangers of riding unrestrained in the bed of a pick-up truck on an
interstate highway are foreseeable and obvious. Indeed, it is common knowledge that riding
unrestrained in a vehicle can result in preventable injuries and deaths.10 See e.g., Maneely v. Gen.
Motors. Corp., 108 F.3d 1176, 1180 (9th Cir. 1997) (“If the public recognizes that traveling in the
passenger compartment of an automobile without a seatbelt is dangerous, it only follows as night the
day that the public also recognizes that riding in the cargo bed of a pickup . . . presents even greater
risks.”); Roland v. DaimlerChrysler Corp., 33 S.W.3d 468, 470 (Tex. Ct. App. 2000) (affirming a
trial court’s grant of summary judgment in a products liability case because as a matter of law riding
in the bed of a truck is an open and obvious danger); Josue v. Isuzu Motors Am., 958 P.2d 535, 540
(Haw. 1998) (holding “that the dangers of riding unrestrained in an open cargo bed of a pickup truck
are obvious and generally known to the ordinary user”). Particularly on an interstate highway, for
example, injuries or death can result from falling out of the bed of a truck onto the roadway, hitting
the walls of the bed, or being exposed to inclement weather. The obvious danger of harm from




         10
            W e caution, however, that our conclusion that the dangers of riding in the bed of a truck are obvious and
foreseeable is limited to the question of foreseeability in this appeal.

                                                         -9-
putting an intoxicated person in the bed of a truck or voluntarily choosing to ride there is reasonably
foreseeable despite the fact that there is no statute or common law rule prohibiting the practice.11

        Based upon our review of the record and the relevant authorities, we conclude that the
question of whether the defendants helped “put” Mr. Downs in the bed of the truck is a genuine issue
of material fact that must be resolved by the jury. The nature of the duty the defendants owed Mr.
Downs is dependent upon the resolution of that factual issue. For example, if the jury concludes that
the defendants placed Mr. Downs in the bed of the truck or assisted him in getting into it, then they
owed him a duty to exercise reasonable care to refrain from conduct that creates an unreasonable risk
of harm. If, however, the jury finds that Mr. Downs got into the bed of the truck voluntarily without
assistance or coercion, but of his own free will, then the defendants did not owe him a duty of care,
unless they assumed a duty by taking charge of Mr. Downs because he was helpless or by standing
in a special relationship to him.

                                                         C.

        The plaintiff insists that even if the defendants had no duty to act to prevent an unreasonable
risk of harm, one or more of the exceptions to the “no duty to act” rule apply. First, the plaintiff
avers that section 324 of the Restatement (Second) of Torts applies to the defendants. This section
provides:

                  One who, being under no duty to do so, takes charge of another who
                  is helpless adequately to aid or protect himself is subject to liability
                  to the other for any bodily harm caused to him by (a) the failure of the
                  actor to exercise reasonable care to secure the safety of the other
                  while within the actor’s charge, or (b) the actor’s discontinuing his
                  aid or protection, if by so doing he leaves the other in a worse
                  position than when the actor took charge of him.

Restatement (Second) of Torts § 324.

        Even though we have never directly addressed section 324 of the Restatement (Second) of
Torts, we have previously examined a situation where a defendant “takes charge of” a “helpless”
individual. In Lindsey v. Miami Development Corporation, the plaintiff’s decedent, who was
intoxicated, died after jumping off a balcony and striking her head on the ground while attending a
party at the defendant’s residence. 689 S.W.2d 856, 858 (Tenn. 1985). After the decedent jumped,
the defendant told those gathered around the decedent to “wait a while before you call an
ambulance.” Id. at 858. While this Court held that the defendant owed the decedent a duty of care


         11
             “W hile compliance with a statutory standard is evidence of due care, it is not conclusive. Such a
standard is no more than a minimum, and it does not necessarily preclude a finding that the actor was negligent in
failing to take additional precautions.” W . Page Keeton et. al., Prosser and Keeton on the Law of Torts § 36, at 233
(5th ed. 1984).

                                                        -10-
because they stood in the special relationship of social guest and host, we noted that “even if no
relationship had existed between [the decedent] and the Defendant, the Defendant assumed control
of the situation which placed him under the obligation to exercise reasonable care to render aid to
[the decedent].” Id. at 860. This Court concluded that the defendant took charge of the decedent
when he instructed others to wait before calling for medical assistance. Id.

        In Carson v. Adgar, the Supreme Court of South Carolina, addressed a similar factual
situation to the case at bar and expressly relied upon section 324 of the Restatement. 486 S.E.2d 3,
5 (S.C. 1997). The plaintiff’s decedent and the defendant, who worked together, spent a majority
of the day together socializing and consuming alcohol. Id. at 4. The decedent became intoxicated
and argued with the defendant as they were driving along a highway. Id. The defendant decided to
“put [the decedent] out” of the vehicle on the roadside so that the decedent could “cool off.” Id. The
defendant drove away for approximately one mile and then returned to where he had left the
decedent. However, during that time the decedent had attempted to cross the highway and was
struck and killed by another vehicle. Id. at 4-5. The plaintiff argued that the defendant took charge
of the decedent when the men left work together to go socializing. Id. at 5.

       The South Carolina court concluded that “in order to establish the defendant has ‘taken
charge of’ one who is helpless, the plaintiff must show ‘the defendant did more than act, but through
affirmative action assumed an obligation or intended to render services for the benefit of another.’”
Carson, 486 S.E.2d at 5-6 (quoting McGee By & Through McGee v. Chalfant, 806 P.2d 980, 983
(Kan. 1991)). Applying this reasoning, the Carson court held that the facts did not indicate that the
defendant, “through affirmative action, assumed an obligation or intended to render services for [the
decedent’s] benefit.” Id. at 6.

         With respect to the “helpless” requirement, the Restatement writers recognized that
intoxication can render a person “helpless.” See Restatement (Second) of Torts § 324 cmt. b (stating
that this section applies “where the actor takes charge of one who is ill, drunk, or made helpless by
the act of a third person or a force of nature.”) (emphasis added). Likewise, in Colville v. Liberty
Mut. Ins. Co., the Appellate Court of Connecticut relied on section 324 and concluded that the
plaintiff in that case was “helpless” after consuming alcohol to the point of “semi-consciousness.”
748 A.2d 875, 876 (Conn. App. Ct. 2000).

        With respect to the plaintiff’s first affirmative duty argument, we conclude that whether Mr.
Downs was “helpless” and whether the defendants “took charge of” him are genuine issues of
material fact that must be resolved by the jury. If a jury finds that Mr. Downs’ level of intoxication
rendered him “helpless” and that the defendants “took charge of” him, then the defendants owed him
a duty to exercise reasonable care in aiding or protecting him. Conversely, if the jury concludes that
Mr. Downs was not “helpless” or that none of the defendants “took charge of” him, then section 324
of the Restatement (Second) of Torts has no application.

       Here, the record contains ample evidence that Mr. Downs consumed alcohol throughout the
night and that he was acting “wild” and became ill. These facts support the conclusion that Mr.


                                                -11-
Downs was intoxicated. However, being intoxicated does not necessarily mean that he was
“helpless.” For example, the record also indicates that he was able to enter and exit both apartments
and the truck’s bed under his own strength. Thus, we conclude that whether Mr. Downs was
“helpless” is a genuine issue of material fact that must be resolved by the jury.

        Regarding the question of whether the defendants “took charge of” Mr. Downs, the record
contains evidence that the defendants decided that Mr. Downs should ride in the bed of the truck,
and there is evidence that at least Mr. Britt helped him into the bed. On the other hand, the record
also indicates that Mr. Downs did not object to riding in the bed of the truck and that he climbed into
it under his own strength. Thus, we conclude that whether the defendants “took charge of” Mr.
Downs is a genuine issue of material fact that must be resolved by the jury.

         Next, we address the plaintiff’s argument that Mr. Britt, Mr. Eller, and Mr. Hurdle each stood
in a special relationship such that they assumed an affirmative duty to exercise reasonable care in
aiding or protecting Mr. Downs. First, the plaintiff contends that “this Court should recognize that
Britt had an affirmative relationship with Mr. Downs such that Britt had an affirmative duty to
protect Downs from harm under the circumstances” because of their close relationship as best friends
and roommates. However, the plaintiff cites no authority supporting her position that friendship,
standing alone, gives rise to a duty of care. After reviewing the facts in this case, we conclude that
it is not in the public’s best interest to impose on Mr. Britt an affirmative duty to aid or protect Mr.
Downs solely because he was Mr. Downs’ best friend and roommate. These two young men did not
stand in any special relationship that we have previously recognized, and there is no evidence that
Mr. Downs was dependent on Mr. Britt. Thus, we conclude as a matter of law that Mr. Britt did not
assume an affirmative duty by virtue of being Mr. Downs’ best friend and roommate.

        Alternatively, the plaintiff contends that designated drivers assume an affirmative duty to aid
or protect intoxicated passengers. The duties of a designated driver pose an issue of first impression
for this Court. On the night the defendants and Mr. Downs went in search of the party, Mr. Eller
served as the designated driver for the group and drove Mr. Hurdle’s truck. Generally, drivers of a
vehicle owe their passengers a duty to exercise reasonable care under the circumstances when
driving. See McCall, 913 S.W.2d at 156 (stating that the defendant-driver “owe[d] a duty to act
reasonably in light of the inherent dangers associated with driving.”).

        The plaintiff, however, posits that Mr. Eller owed Mr. Downs more than the customary duty
to exercise reasonable care when driving the truck because he was a “designated driver.”12 The
plaintiff argues that “[t]here should be a duty for designated drivers to take affirmative actions to
keep intoxicated passengers inside the passenger compartment of the vehicle and to ensure that the
intoxicated passenger is not abandoned in a position of peril along the journey.” We disagree with
such a broad imposition of an affirmative duty of care because the public is better served by



        12
            The Court of Appeals defined a “designated driver” as “one who assumes the duty to remain sober for
the purpose of driving others.” For purposes of this opinion, we adopt this definition as well.

                                                      -12-
encouraging individuals to serve as designated drivers rather than adopting a policy that could
potentially discourage the practice.

        Other jurisdictions that have considered the duties of designated drivers have likewise
declined to impose on designated drivers an affirmative duty to aid or protect intoxicated
passengers. See, e.g., Stephenson v. Ledbetter, 596 N.E.2d 1369, 1373 (Ind. 1992) (stating that “[t]o
hold a driver liable for the irresponsible actions of an intoxicated passenger would cut against this
important social policy of encouraging the use of designated drivers.”); Cardella v. Robinson, 903
So. 2d 613, 618 (La. Ct. App. 2005) (reasoning that if designated drivers were imposed with a duty
to control intoxicated passengers and prevent them from performing tortious or criminal acts it
would have a “chilling effect” on the designated driver movement); Collins v. Thomas, 938 A.2d
1208, 1211 (Vt. 2007) (affirming a trial court’s determination that “there is no common law duty on
the part of a sober driver to protect an intoxicated passenger from the consequences of the
intoxicated passenger’s own actions, and that the imposition of such a duty would be inconsistent
with the social policy favoring the use of designated drivers.”).

         This Court has consistently recognized the dangers associated with impaired driving. See
West, 172 S.W.3d at 551-52 (stating that “[i]t is common knowledge that drunk driving directly
results in accidents, injuries, and deaths.”) (footnote omitted); Burroughs, 118 S.W.3d at 332 (noting
that “[d]eaths and serious injuries tragically occur every day as the result of impaired drivers who
are operating motor vehicles on our roads and highways.”). Designated drivers offer a valuable, but
limited service to those who become intoxicated. Based on these public policy reasons, we hold as
a matter of law that Mr. Eller owed a duty to exercise reasonable care in driving the vehicle and
remaining sober while performing this service. Mr. Eller did not, however, assume an affirmative
duty to aid or protect Mr. Downs merely because of his status as designated driver.

        Lastly, the plaintiff avers that Mr. Hurdle assumed an affirmative duty to aid or protect Mr.
Downs because he was the owner of the truck and Mr. Downs was a passenger. The group rode in
Mr. Hurdle’s truck to the Cool Springs mall-area. Because he consumed alcohol, Mr. Hurdle
allowed Mr. Eller, who had not consumed alcohol, to drive his truck. Mr. Hurdle rode as a
passenger. As a general rule, passengers do not owe a duty of care “to the public to control, or even
attempt to control, the operation of a vehicle unless they have a right to do so, either through their
relationship to the vehicle itself or to the driver.” Grandstaff v. Hawks, 36 S.W.3d 482, 492 (Tenn.
Ct. App. 2000). Tennessee Code Annotated section 55-10-311(a) (2004) provides that,

               In all actions for injury to persons and/or to property caused by the
               negligent operation or use of any automobile . . . within this state,
               proof of ownership of such vehicle shall be prima facie evidence that
               the vehicle at the time of the cause of action sued on was being
               operated and used with authority, consent and knowledge of the
               owner in the very transaction out of which the injury or cause of
               action arose, and such proof of ownership likewise shall be prima
               facie evidence that the vehicle was then and there being operated by


                                                -13-
               the owner, or by the owner’s servant, for the owner’s use and benefit
               and within the course and scope of the servant’s employment.

         This statute creates prima facie evidence of an owner-servant relationship between the owner
of the vehicle and the driver. See Godfrey v. Ruiz, 90 S.W.3d 692, 697 (Tenn. 2002) (stating that
this statute “is clearly intended to eliminate the difficulty encountered by injured parties who are
trying to prove that the driver was operating with the owner’s permission at the time of the
accident.”); Warren v. Estate of Kirk, 954 S.W.2d 722, 724 (Tenn. 1997). The owner may overcome
this prima facie case with countervailing evidence “that the driver was in fact operating the vehicle
without authority of the owner.” Ferguson v. Tomerlin, 656 S.W.2d 378, 381-82 (Tenn. Ct. App.
1983); Warren, 954 S.W.2d at 724.

        Thus, pursuant to this statute, if the jury finds that Mr. Eller is liable for Mr. Downs’ death,
then any liability may be imputed vicariously to Mr. Hurdle provided that the statutory presumption
is not overcome. However, an owner of a vehicle is not one of the special relationships that this
Court has previously recognized, and we see no reason to impose such a duty under these
circumstances. Mr. Hurdle only had the right to control the driver of the truck and not the other
passengers. Mr. Hurdle’s duty should not be greater than the duty owed by Mr. Eller. The record
does not reveal that Mr. Hurdle acted to benefit or render aid to Mr. Downs. Based upon the facts
of this case, we conclude as a matter of law that Mr. Hurdle did not assume an affirmative duty to
aid or protect Mr. Downs.

       Breach of Duty, Injury or Loss, Cause in Fact, Proximate Cause, and Defenses

        In addition to proving the existence of a duty of care, the plaintiff still bears the burden of
proving the remaining elements of negligence: beach of duty, injury or loss, cause in fact, and
proximate cause. In light of our decision that this case is inappropriate for summary judgment, the
jury should also resolve these remaining elements. In addition, the jury should decide whether Mr.
Downs’ act of running into a lane of traffic was an independent, intervening cause of his death. See
McClenahan v. Cooley, 806 S.W.2d 767, 775 (Tenn. 1991). Lastly, the jury should also decide
whether Mr. Downs’ negligence, if any, equaled or outweighed the defendants’ negligence, if any.
Hale, 166 S.W.3d at 718 (stating the allocation of comparative fault is a determination of fact to be
made by the jury).

                                             Conclusion

        In summary, we conclude that there are genuine issues of material fact that preclude summary
judgment. Specifically, there are genuine issues of fact relating to how Mr. Downs came to be in
the bed of the truck after he became ill. In addition, there are genuine issues of material fact with
respect to whether Mr. Downs was “helpless” and whether the defendants “took charge of” him.
These issues are material because they determine the nature of the duty of care owed by the
defendants to Mr. Downs. We also conclude that the best friend and roommate, designated driver,
and owner of the truck did not assume an affirmative duty because they did not stand in any special


                                                 -14-
relationship to Mr. Downs. Therefore, we reverse the judgment of the Court of Appeals and remand
this case to the trial court for further proceedings.

       Costs of this appeal are taxed to the defendants, Mark Bush, Ryan Britt, Jerry Dane Eller, and
Scott Hurdle, for which execution may issue if necessary.



                                              ____________________________________
                                              WILLIAM M. BARKER, CHIEF JUSTICE




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