                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                  March 15, 2010 Session

ALICIA MATHES, ET AL. v. DRD KNOXVILLE MEDICAL CLINIC, ET AL.

                 Direct Appeal from the Circuit Court for Knox County
                       No. 1-446-09    Dale C. Workman, Judge


                  No. E2010-01809-COA-R3-CV - Filed April 13, 2011


This is an appeal from the trial court’s grant of separate motions to dismiss for failure to state
a claim upon which relief can be granted. The trial court determined that Appellants had
failed to comply with the written notice and certificate of good faith requirements of the
Tennessee Medical Malpractice Act, and had failed to state a claim for vicarious liability
based on theories of agency or joint venture. We affirm in part, reverse in part, and remand,
concluding that Appellants’ claims of direct negligence do not sound in medical malpractice,
but that Appellants failed to state a claim upon which relief can be granted with respect to
vicarious liability based on agency or joint venture.

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

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which, D AVID R. F ARMER, J.,
and J OHN W. M CC LARTY, J., joined.

Christopher T. Cain, Knoxville, Tennessee, for the appellants, Alicia Mathes and Scott
Mathes.

James G. O’Kane, Knoxville, Tennessee, for the appellees, DRD Knoxville Medical Clinic,
Dr. Steven Ritchie, and DRD Knoxville Medical Clinic, Inc.

                                           OPINION

                             I. Background Facts & Procedure

       This is an appeal from the trial court’s grant of separate motions to dismiss pursuant
to Tenn. R. Civ. P. 12.02(6) for failure to state a claim upon which relief can be granted.
Thus, the following facts are drawn from the parties’ respective pleadings.
         On September 15, 2008, at approximately 7:15 a.m., Paul Davis and Alicia Mathes
collided in an automobile accident in Knox County. Earlier that same day, Mr. Davis had
been administered his daily dose of methadone at DRD Knoxville Medical Clinic, a drug
rehabilitation center that provides treatment to patients with opiate addictions. The clinic
treats its patients through counseling and dispensing methadone. Dr. Steven Ritchie was the
medical director and an employee of the clinic, and part of his job was to oversee the
administration of methadone to certain patients, including Mr. Davis.

       On September 11, 2009, Mrs. Mathes, along with her husband, Scott Mathes (together
“Plaintiffs” or “Appellants”), filed a complaint in the Circuit Court of Knox County. The
complaint named as defendants DRD Knoxville Medical Clinic, DRD Knoxville Medical
Clinic, Inc. (together “DRD” or the “Clinic”), Dr. Ritchie, and Mr. Davis. The complaint
alleged negligence on the part of Mr. Davis, direct negligence on the part of DRD and Dr.
Ritchie, and vicarious liability on the part of DRD under theories of agency and joint venture.

       Specifically, the complaint averred that, on the morning of the automobile accident,
DRD administered a daily dose of methadone to Mr. Davis, who was alleged to have been
a long-time methadone user and patient of the Clinic. As alleged in the complaint,
methadone, and long-term methadone use, can cause drowsiness, severe sedation, sleepiness,
and blurred vision, which can render a person under its influence unable to perform complex
tasks such as operating an automobile. The complaint further claimed that, contrary to Clinic
policy, DRD provided Mr. Davis with his methadone dose before receiving payment.
Consequently, after receiving his dose, Mr. Davis was allegedly instructed and allowed to
leave the Clinic to obtain cash from an automated teller machine in order to make his
payment.

       The automobile accident allegedly occurred while Mr. Davis was retrieving funds to
pay for his methadone dose. The complaint alleged that neither DRD nor Dr. Ritchie warned
Mr. Davis of the side effects of methadone use or the danger of driving after receiving his
dose. With regards to DRD and Dr. Ritchie, the complaint alleged that they owed a duty of
care to Appellants, as their conduct in instructing and allowing Mr. Davis to drive while
under the influence of methadone created a foreseeable “zone of risk” to innocent third
parties.

       Appellants alleged that DRD and Dr. Ritchie breached their duty in the following
ways, as stated in the complaint:

              1. Failing to determine if Davis was impaired before sending
              him for cash;



                                              -2-
              2. Failing to warn Davis that he should not drive;

              3. Allowing Davis to leave while under the influence of
              methadone;

              4. Failing to properly monitor and/or supervise Davis while he
              was under the influence of methadone;

              5. Failing to implement a proper procedure for monitoring and
              supervising patients (such as Davis) after they received
              methadone doses that would have prevented Davis from driving
              away from the Clinic while under the influence of methadone
              and subsequently causing an accident;

              6. Fail[ing] to intervene to prevent Davis from driving from the
              Clinic while under the influence of methadone and, instead,
              expressly directing and/or allowing Davis to do so; and,

              7. Failing to provide Davis with appropriate transportation for
              the purpose of him obtaining cash for payment of this debt to the
              Clinic.

       Mrs. Mathes sought damages for her medical expenses, pain and suffering, loss of
enjoyment, emotional distress, lost wages, vocational impairment, and permanent physical
impairment. Mr. Mathes sought damages for loss of consortium. Appellants’ complaint
prayed for compensatory damages in the amount of four-million dollars.

        DRD filed its answer on January 20, 2010, in which it admitted that Mr. Davis was
a patient of the Clinic, and that, on September 8, 2008, at 6:35 a.m., DRD administered to
Mr. Davis his daily methadone dose. DRD denied that it had administered the dose before
receiving payment from Mr. Davis, and also denied that it had instructed or allowed Mr.
Davis to leave the Clinic to obtain funds for payment. More generally, DRD’s answer denied
liability for negligence or vicarious liability under Appellants’ theories of agency or joint
venture. Dr. Ritchie’s answer is not contained in the appellate record. On September, 28,
2010, Appellants obtained a default judgment against Mr. Davis, who is not a party to this
appeal.

       On February 17, 2010, DRD filed a Tenn. R. Civ. P. 12.02(6) motion to dismiss,
alleging that Appellants had failed to comply with the requirements of the Tennessee Medical
Malpractice Act, specifically the written notice requirement of Tenn. Code Ann. § 29-26-121

                                             -3-
and the certificate of good faith requirement of Tenn. Code Ann. § 29-26-122.1 On March
5, 2010, Dr. Ritchie also filed a motion to dismiss adopting and incorporating by reference
the memorandum supporting DRD’s motion to dismiss. The remaining defendants, Dr.
Ritchie and DRD (together “Appellees”), contended that Appellants’ complaint sounded in
medical malpractice, and not in ordinary negligence, and that Appellants had failed to comply
with the requirements of the Medical Malpractice Act.

        Appellants filed a response on March 9, 2010. In their response, Appellants admitted
that they did not comply with the written notice requirement or the certificate of good faith
requirement, but maintained that neither was required because their complaint sounded in
ordinary negligence and not in medical malpractice.

        The trial court held hearings on the motions to dismiss on March 12, 2010, and March
31, 2010. Following these hearings, the trial court dismissed all claims against Dr. Ritchie
and the claims of direct negligence against DRD. The trial court found, by order entered July
6, 2010, that “Tennessee’s Medical Malpractice Act applies to plaintiffs’ claims against
defendants.” DRD’s motion to dismiss did not address Appellants’ claims for vicarious
liability based on theories of agency and joint venture; therefore, those claims remained. On
June 24, 2010, DRD filed a second motion to dismiss for failure to state a claim, moving the
court to dismiss Appellants’ agency and joint venture claims. Appellants filed their response
on July 19, 2010. Following a hearing, on July 23, 2010, the trial court entered an order, on
July 29, 2010, dismissing Appellants’ remaining claims and making the judgment final
pursuant to Tenn. R. Civ. P. 54.02.

                                        II. Issues Presented

        Appellants timely appealed, raising the following issues for review, as restated from
their brief:

                       (1) Whether the trial court erred in dismissing
                Appellants’ direct negligence claims against DRD and Dr.
                Ritchie based upon a finding that the claims sounded in medical
                malpractice?

                      (2) Whether the trial court erred in dismissing
                Appellants’ claims of vicarious liability against DRD based on
                agency or joint venture theories for failure to state a claim upon


        1
         DRD’s answer, filed January 20, 2010, also raised Tenn. R. Civ. P. 12.02(6) defenses as provided
in Rule 12.

                                                   -4-
                 which relief can be granted?

                                     III. Standard of Review

       A Tenn. R. Civ. P. 12.02(6) motion to dismiss a complaint for failure to state a claim
upon which relief can be granted tests the legal sufficiency of the complaint. Lanier v.
Rains, 229 S.W.3d 656, 660 (Tenn. 2007). It admits the truth of all relevant and material
allegations, but asserts that such allegations do not constitute a cause of action as a matter
of law. See Riggs v. Burson, 941 S.W.2d 44, 47 (Tenn. 1997). When considering a motion
to dismiss for failure to state a claim upon which relief can be granted, we are limited to an
examination of the complaint alone. See Wolcotts Fin. Servs., Inc. v. McReynolds, 807
S.W.2d 708, 710 (Tenn. Ct. App. 1990). The basis for the motion is that the allegations in
the complaint, when considered alone and taken as true, are insufficient to state a claim as
a matter of law. See Cornpropst v. Sloan, 528 S.W.2d 188,190 (Tenn. 1975). In short, a
Tenn. R. Civ. P. 12.02(6) motion to dismiss seeks only to determine whether the pleadings
state a claim upon which relief can be granted, and such a motion challenges the legal
sufficiency of the complaint, not the strength of the plaintiff's proof. Bell ex rel. Snyder v.
Icard, 986 S.W.2d 550, 554 (Tenn. 1999). In considering such a motion, the court should
construe the complaint liberally in favor of the plaintiff, taking all the allegations of fact
therein as true. See Cook ex rel. Uithoven v. Spinnaker's of Rivergate, Inc., 878 S.W.2d
934, 938 (Tenn. 1994). However, we are not required to accept as true factual inferences or
conclusions of law. Riggs v. Burson, 941 S.W.2d 44, 47-48 (Tenn. 1997). An appellate
court should uphold the grant of a motion to dismiss only when it appears that the plaintiff
can prove no set of facts in support of a claim that will entitle him or her to relief. Young
v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003). In reviewing a motion to dismiss, this
Court is presented with matters of law, thus, our review is de novo with no presumption of
correctness. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

                                            IV. Analysis

                       A. Medical Malpractice versus Ordinary Negligence

       We must first determine whether Appellants’ claims of direct negligence sound in
ordinary negligence or medical malpractice. The issue is relevant here because, before
proceeding in a malpractice case, a plaintiff must fulfill certain procedural requirements.
Specifically, it is undisputed that Appellants provided neither written notice, as required by
Tenn. Code Ann. § 29-26-121(a)(1)2 , nor a certificate of good faith, as required by Tenn.


       2
           Tenn. Code Ann. § 29-26-121(a)(1) provides:
                                                                                   (continued...)

                                                  -5-
Code Ann. § 29-26-122.3 Failure to adhere to these procedural requirements may lead to
dismissal of the complaint. See Tenn. Code Ann. §§ 29-26-121(b); 29-26-122(a). However,
these procedural requirements do not apply to a claim for ordinary negligence.

        “The distinction between medical malpractice and negligence is a subtle one, for
medical malpractice is but a species of negligence and no rigid analytical line separates the
two.” Gunter v. Lab. Corp. of Am., 121 S.W.3d 636, 639 (Tenn. 2003) (citations and
internal quotations omitted). The Tennessee Supreme Court recently addressed the standards
for distinguishing between ordinary negligence and medical malpractice in Estate of French
v. Stratford House, No. E2008-00539-SC-R11-CV, __ S.W.3d __ , 2011 WL 238819 (Tenn.
Jan. 26, 2011).

       The elements of a claim for common law negligence include: “(1) a duty of care owed
by defendant to plaintiff; (2) conduct below the applicable standard of care that amounts to
a breach of that duty; (3) an injury or loss; (4) cause in fact; and (5) proximate, or legal,
cause.” Estate of French, 2011 WL 238819, at *5. Medical malpractice claims, on the other
hand, are specifically governed by the Tennessee Medical Malpractice Act, which essentially
codified the elements of common law negligence. Id. (citing Gunter, 121 S.W.3d at 639).
Tenn. Code Ann. § 29-26-115 requires a plaintiff in a medical malpractice action to prove
the following statutory elements: (1) the recognized standard of professional care in the
specialty and locality in which the defendant practices; (2) that the defendant failed to act in
accordance with the applicable standard of care; and (3) that as proximate result of the
defendant’s negligent act or omission, the claimant suffered an injury which otherwise would




       2
           (...continued)
                   Any person, or that person's authorized agent, asserting a potential claim for medical
                   malpractice shall give written notice of the potential claim to each health care provider that
                   will be a named defendant at least sixty (60) days before the filing of a complaint based
                   upon medical malpractice in any court of this state.


       3
           Tenn. Code Ann. § 29-26-122(a) provides, in relevant part:

                  In any medical malpractice action in which expert testimony is required by § 29-26-115, the
                  plaintiff or plaintiff's counsel shall file a certificate of good faith with the complaint. If the
                  certificate is not filed with the complaint, the complaint shall be dismissed, as provided in
                  subsection (c), absent a showing that the failure was due to the failure of the provider to
                  timely provide copies of the claimant's records requested as provided in § 29-26-121 or
                  demonstrated extraordinary cause . . . .

                                                        -6-
not have occurred. Tenn. Code Ann. § 29-26-115(a)4 ; see also Estate of French, 2011 WL
238819, at *5.

       Tennessee courts have embraced the following standard for distinguishing between
ordinary negligence and medical malpractice:

                [W]hen a claim alleges negligent conduct which constitutes or
                bears a substantial relationship to the rendition of medical
                treatment by a medical professional, the medical malpractice
                statute is applicable. Conversely, when the conduct alleged is
                not substantially related to the rendition of medical treatment by
                a medical professional, the medical malpractice statute does not
                apply.

Gunter, 121 S.W.3d at 641 (citing Weiner v. Lenox Hill Hosp., 673 N.E.2d 914, 916 (N.Y.
1996)); see also Estate of French, 2011 WL 238819, at *6.

      Likewise, this Court has explained that:

                Medical malpractice cases typically involve a medical diagnosis,
                treatment or other scientific matters. The distinction between
                ordinary negligence and malpractice turns on whether the acts
                or omissions complained of involve a matter of medical science
                or art requiring specialized skills not ordinarily possessed by lay
                persons or whether the conduct complained of can instead be
                assessed on the basis of common everyday experience of the


      4
          Tenn. Code Ann. § 29-26-115(a) provides:

                In a malpractice action, the claimant shall have the burden of proving by evidence as
                provided by subsection (b):

                (1) The recognized standard of acceptable professional practice in the profession and the
                specialty thereof, if any, that the defendant practices in the community in which the
                defendant practices or in a similar community at the time the alleged injury or wrongful
                action occurred;

                (2) That the defendant acted with less than or failed to act with ordinary and reasonable care
                in accordance with such standard; and

                (3) As a proximate result of the defendant’s negligent act or omission, the plaintiff suffered
                injuries which would not otherwise have occurred.

                                                    -7-
              trier of fact.

Peete v. Shelby County Health Care Corp., 938 S.W.2d 693, 696 (Tenn. Ct. App. 1996)
(quoting Graniger v. Methodist Hosp. Healthcare Sys., Inc., No. 02A01-9309-CV-00201,
1994 WL 496781, at *3 (Tenn. Ct. App. Sept. 9, 1994)).

       We note that this case does not involve the typical medical malpractice scenario in
which a patient asserts claims against a healthcare provider for injuries arising out of medical
treatment rendered to him or her. Rather, here, Appellants were never patients of Appellees,
and merely assert claims that relate to medical treatment provided to a third party. Appellants
argue that this case cannot involve medical malpractice where a physician-patient
relationship never existed.

       Appellants refer us to Tennessee cases in which it is stated that a physician-patient
relationship is a necessary element of a medical malpractice action. See, e.g., Pittman v.
Upjohn Co., 890 S.W.2d 425, 431 (Tenn. 1994) (“[t]he physician-patient relationship is an
essential element of a cause of action for medical malpractice, but not for common law
negligence”); Bradshaw v. Daniel, 854 S.W.2d 865, 870 (Tenn. 1993) (“[w]hile it is true that
a physician-patient relationship is necessary to the maintenance of a medical malpractice
action, it is not necessary for the maintenance of an action based on negligence”); Estate of
Doe v. Vanderbilt Univ., Inc., 958 S.W.2d 117, 122 (Tenn. Ct. App. 1997) (“a physician-
patient relationship is a necessary element of a medical malpractice action”).

        Our Supreme Court discussed the historical underpinnings of the physician-patient
requirement in Kelley v. Middle Tennessee Emergency Physicians, 133 S.W.3d 587, 591-93
(Tenn. 2004). From the Court’s analysis in that case, it is clear that the requirement of a
physician-patient relationship is, in essence, an analysis of duty. Id. at 593. A number of
Tennessee Supreme Court cases have held that a medical provider may owe a duty of care
to non-patient third parties for injuries caused by the medical provider’s negligence if the
harm which occurred was reasonably foreseeable. See, e.g., Estate of Amos v. Vanderbilt
Univ., 62 S.W.3d 133, 138 (Tenn. 2001) (holding that a hospital owed a duty to warn a
former patient of her possible exposure to the HIV virus and that the patient’s husband could
recover damages against the hospital); Turner v. Jordan, 957 S.W.2d 815, 818 (Tenn. 1997)
(holding that a psychiatrist owed a duty of care to a hospital nurse to protect her from a
dangerous, mentally ill patient); Bradshaw v. Daniel, 854 S.W.2d 865, 872-73 (Tenn. 1993)
(holding that a physician of a patient suffering from Rocky Mountain Spotted Fever owed
a duty of care to warn identifiable third persons in the patient’s immediate family of their risk
of contracting the disease); Wharton Transp. Corp. v. Bridges, 606 S.W.2d 521, 527 (Tenn.
1980) (holding that physician performing pre-employment physical examination of a truck
driver owed a duty of care to a third party); cf. Pittman v. Upjohn Co., 890 S.W.2d 425, 433-

                                               -8-
34 (Tenn. 1994) (holding that physician did not owe a duty of care to non-patient where it
was not reasonably foreseeable that non-patient would ingest medicine prescribed for the
physician’s patient).

       We note that the question of what duty Appellees owed to Appellants was not an issue
that was litigated or decided by the trial court. Consequently, we decline to address it on
appeal. Nevertheless, we believe that the lack of a physician-patient relationship between
Appellees and Appellants underscores the fact that Appellants’ claims do not bear a
substantial relationship to the rendition of medical treatment to Mr. Davis. See Estate of
French, 2011 WL 238819, at *6. By analyzing Appellants’ complaint to ascertain the nature
and substance of their claims, see id. at *7, it is clear that Appellants do not raise any issue
related to the quality or effect of the medical treatment rendered by Appellees to Mr. Davis.
Rather, Appellants allege fault on behalf of Appellees for instructing and allowing Mr. Davis
to leave the Clinic while impaired by methadone in order to secure payment, and for failing
to implement policies and procedures to prevent such an outcome.

       As detailed above, Appellants specifically assert that Appellees: (1) failed to
determine whether Mr. Davis was impaired before allowing him to leave the Clinic; (2) failed
to warn Mr. Davis that he should not drive; (3) allowed Mr. Davis to leave while under the
influence of methadone; (4) failed to properly monitor or supervise Mr. Davis while he was
impaired; (5) failed to implement proper monitoring and supervising procedures for patients
under the influence of methadone; (6) failed to intervene to prevent Mr. Davis from leaving
the Clinic while impaired; and (7) failed to provide Mr. Davis with transportation for the
purpose of securing payment. These are allegations sounding in ordinary negligence and do
not bear a substantial relationship to the medical treatment of Mr. Davis.

        The fact that this case involves health or medical entities does not, ipso facto, lead us
to the conclusion that it sounds in medical malpractice. Estate of French, 2011 238819, at
*6; Gunter, 121 S.W.3d at 640. From our review of the complaint, Appellants’ allegations
relate to Appellees’ failure to warn, see, e.g., Estate of Doe, 958 S.W.2d at 122, and failure
to implement proper procedures for the protection of third parties, see, e.g., Turner v.
Steriltek, Inc., No. M2006-01816-COA-R3-CV, 2007 WL 4523157, at *8 (Tenn. Ct. App.
2007), and do not relate to the rendition of medical services to Mr. Davis.

        Appellees contend that the treatment of a methadone patient involves specialized
training and knowledge of scientific matters. We note that the treatment of Mr. Davis is not
itself at issue here; rather, it is the handling of Mr. Davis after he was treated, and the effect
such handling had on the safety of the public at-large. Appellees argue that their assessment
of Mr. Davis, in determining whether or not he was capable of leaving the Clinic after
receiving his dose, was a decision involving specialized medical skill and training. While

                                               -9-
we concede that expert medical testimony might be needed to assist a jury in determining the
proper handling of a patient treated with methadone, this fact alone does not place this case
within the medical malpractice realm. See Estate of Doe, 958 S.W.2d at 122-23.

        Appellees argue that any duty that they may owe to Appellants arises solely out of the
medical treatment of Mr. Davis. We disagree. While it may be true that Appellees would
not be named defendants but for the treatment of Mr. Davis, the specific allegations of
negligence made by Appellants relate solely to acts or omissions made by Appellees after the
rendition of such treatment. Moreover, as discussed above, the allegations do not, in any
way, allege fault with the medical treatment provided to Mr. Davis. The allegations instead
attribute fault arising from the handling of Mr. Davis after his treatment and the danger such
handling may have posed to members of the public.

        Based on the limited facts before us on a motion to dismiss, we believe that any duty
Appellees may have owed to Appellants, is one of a health care provider to a non-patient
third party. See, e.g., Estate of Amos v. Vanderbilt Univ., 62 S.W.3d 133, 138 (Tenn. 2001);
Bradshaw v. Daniel, 854 S.W.2d 865, 872-73 (Tenn. 1993); Wharton Transp. Corp. v.
Bridges, 606 S.W.2d 521, 527 (Tenn. 1980); Estate of Jane Doe, 958 S.W.2d at 122-23;
Turner v. Steriltek, Inc., 2007 WL 4523157, at *8. These cases each sounded in ordinary
negligence, and we discern that the acts or omissions alleged in Appellants’ complaint are
analogous.

       For these reasons, we conclude that Appellants’ claims of direct negligence against
Appellees DRD and Dr. Ritchie sound in ordinary negligence, and not in medical
malpractice. Consequently, we reverse the trial court’s judgment dismissing Appellants’
claims for failure to comply with the procedural requirements of the Medical Malpractice
Act. We specifically note that our decision does not hold that Appellees owed a duty of care
to Appellants, but merely holds that Appellants’ complaint alleges a duty and breach of duty
that sounds in ordinary negligence.

                                          B. Agency

        We next turn to the trial court’s grant of Appellee DRD’s motion to dismiss for failure
to state a claim of vicarious liability based on a theory of agency. “In the broadest sense, an
agency relationship is one wherein the principal authorizes the agent to act for the principal's
benefit but at the same time retains the right to control the agent's conduct.” Hussman
Refrigeration, Inc. v. South Pittsburgh Assocs., 697 S.W.2d 588, 592 (Tenn. Ct. App.
1985). The formation of an agency relationship does not require an explicit agreement,
contract, or understanding between the parties, and can be established whether the parties
intended to create one or not. White v. Revco Discount Drug Centers, Inc., 33 S.W.3d 713,

                                              -10-
723 (Tenn. 2000). “An element of the agency relationship is that the object of the contract
be for the benefit of the principal.” Nidiffer v. Clinchfield R. Co., 600 S.W.2d 242, 245
(Tenn. Ct. App. 1980) (citing Foster Trailer Co. v. U.S. Fid. & Guar. Co., 228 S.W.2d 107,
109 (Tenn. 1950)).

      From our review of the record, the basis for Appellants’ claims of vicarious liability
based on agency can be found in the following paragraphs of the complaint:

              10. Contrary to Clinic policy, instead of having to pay for his
              methadone dose before receiving it, Davis was provided and
              administered his dose without payment. Instead, he was
              instructed and allowed by the Clinic to leave the Clinic after
              receiving his methadone dose for the purpose of traveling to an
              ATM to obtain cash to pay for his methadone dose. Neither the
              Clinic and/or Ritchie inquired as to how Davis was going to
              travel to obtain the requested cash. As such, Davis, at all times
              material, was an agent of and/or joint venturer with the Clinic
              making the Clinic jointly and severally liable and/or vicariously
              liable for the acts of Davis.

              13. While acting as the agent for and/or as a joint venturer with
              the Clinic in obtaining cash for payment for his methadone
              dosage, Davis negligently caused the accident at issue. At the
              time of the accident, Davis was pharmaceutically impaired by
              the methadone.      His pharmaceutical impairment was a
              proximate cause of the accident at issue.

              17. As set forth, supra, the Clinic (DRD, Inc. and/or DRD) are
              jointly and severally liable and/or vicariously liable for the
              proximate negligence of Davis as he was an agent and/or joint
              venturer with the Clinic.

       Based on these allegations, we must agree with the trial court and conclude that the
complaint does not state a claim for vicarious liability based on agency. First, these
allegations do not indicate what, if any, benefit the purported principal, DRD, stood to gain
by virtue of an agency relationship with Mr. Davis. Nidiffer, 600 S.W.2d at 245. Rather, the
complaint alleges a standard commercial transaction in which Mr. Davis was rendered
medical services and sought to secure funds with which to pay his bill. Mr. Davis was
pursuing his own interests, not those of DRD, in paying his debt. Payment of the amount
owed cannot itself be considered a benefit to DRD, and an agency relationship is not created

                                            -11-
simply because a creditor requests payment. Second, it is axiomatic that a principal can only
do through an agent that which it has the power to do itself. 2A C.J.S. Agency § 129 (2011).
DRD could not have gone to Mr. Davis’ bank and withdrawn funds from his account in order
to pay the amount owed. This fact illustrates that Mr. Davis was acting on his own behalf
and was not pursuing the interests of DRD when he left the Clinic.

        Appellants use of the word “agency,” or even the allegation of an agency relationship,
is not sufficient to state a claim upon which relief can be granted. These are merely legal
conclusions which are not required to be taken as true. Riggs v. Burson, 941 S.W.2d 44, 47-
48 (Tenn. 1997). Appellants must allege sufficient facts that, if proven, would give rise to
liability. Trau-Med of America, Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 697. They failed
to do so.

       For these reasons, we conclude that Appellants’ complaint failed to state a claim
for vicarious liability based on agency. Consequently, we affirm the judgment of the trial
court in this respect.

                                      C. Joint Venture

       We last address Appellants’ claims of vicarious liability against Appellee DRD
based on joint venture, which the trial court likewise dismissed. The Tennessee Supreme
Court has defined a joint venture as:

              [A]n association of persons with intent, by way of contract,
              express or implied, to engage in and carry out a single business
              adventure for joint profit, for which purpose they combine their
              efforts, property, money, skill, and knowledge, but without
              creating a partnership in the legal or technical sense of the term,
              or a corporation, and they agree that there shall be a community
              of interest among them as to the purpose of the undertaking, and
              that each coadventurer shall stand in the relation of principal, as
              well as agent, as to each of the other coadventurers, with an
              equal right of control of the means employed to carry out the
              common purpose of the adventure.

Spencer Kellogg & Sons, Inc. v. Lobban, 315 S.W.2d 514, 520 (Tenn. 1958).

       Thus, it is often said that a joint venture between two parties requires “a common
purpose, some manner of agreement among them and an equal right on the part of each to
control both the venture as a whole and any relevant instrumentality.” Dewberry v. Maddox,

                                             -12-
755 S.W.2d 50, 56 (Tenn. Ct. App. 1988) (quoting Cecil v. Hardin, 575 S.W.2d 268, 271
(Tenn. 1978)).

        From our review of the record, the only allegations of a joint venture in the complaint
are those excerpted above that also allege an agency relationship. Based on those allegations,
we conclude that the trial court correctly dismissed Appellants’ joint venture claim for failure
to state a claim upon which relief can be granted.

        First, the complaint does not allege that DRD and Mr. Davis intended to “carry out
a single business adventure for joint profit.” See Spencer Kellogg & Sons, Inc., 315 S.W.2d
at 520. The factual allegations merely indicate that the parties carried out a routine
transaction for medical services. Neither party profited from Mr. Davis’ excursion. Rather,
DRD was paid the money owed to it, and Mr. Davis satisfied a monetary obligation.

        Second, the allegations do not indicate that there was a “common purpose” between
DRD and Mr. Davis. As discussed above, when Mr. Davis left the Clinic to obtain funds to
pay his bill, both parties were pursuing their own respective interests. Appellants contend,
in their brief, that we should infer the common purpose to be the maintenance of a
relationship between methadone patient and provider. Appellants argue that the common
purpose to maintain such a relationship can be inferred by the allegation that DRD, contrary
to its own policy, provided methadone to Mr. Davis prior to receiving payment and allowed
him to later retrieve payment. We note only that, while we must construe allegations in a
plaintiff’s favor and accept factual allegations as true, we are not required to take as true
inferences drawn from the facts. Riggs v. Burson, 941 S.W.2d at 47-48. We believe that
such a common purpose is not fairly drawn from the facts as alleged.

       Third, the complaint does not allege an equal right of control of the venture and the
relevant instrumentalities. See Dewberry v. Maddox, 755 S.W.2d at 56. The complaint uses
words such as “instructed” and “allowed” to describe DRD’s actions in relation to Mr. Davis.
These words do no indicate parties on equal footing. Conversely, the complaint does not
allege that DRD had any right to control Mr. Davis’ transportation to, or acquisition of
money from, the automated teller machine. If anything, the factual allegations in the
complaint imply that DRD did not have the right to control the relevant instrumentalities
because it states that “neither the Clinic and/or Ritchie inquired as to how Davis was going
to travel to obtain the requested cash.”

        As noted above, simply using the words “joint venture” or alleging a joint venture
relationship without alleging facts sufficient to establish such a relationship is not sufficient
to state a claim. These are merely legal conclusions which we are not required to accept as
true. Riggs v. Burson, 941 S.W.2d at 47-48. After reviewing the complaint, it is simply not

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possible to match the elements of a joint venture with the facts as alleged by Appellants.

       For these reasons, we conclude that Appellants’ complaint failed to state a claim for
vicarious liability based on joint venture. Consequently, we affirm the judgment of the trial
court in this respect.

                                       V. Conclusion

       After reviewing the record, we conclude that Appellants’ complaint sounds in
ordinary negligence, not medical malpractice. Consequently, we reverse the trial court’s
judgment dismissing Appellants’ claims of direct negligence against Appellees DRD and Dr.
Steven Ritchie. However, we affirm the trial court’s judgment dismissing Appellants’ claims
of vicarious liability against Appellee DRD based on theories of agency and joint venture
because Appellants have failed to state a claim upon which relief can be granted with respect
to these theories. The case is remanded to the trial court for proceedings consistent with this
opinion. Costs of this appeal are assessed one-half to Appellees, DRD Knoxville Medical
Clinic, DRD Knoxville Medical Clinic, Inc., and Dr. Steven Ritchie, and one-half to
Appellants, Alicia and Scott Mathes, and their surety.




                                                    _________________________________
                                                    J. STEVEN STAFFORD, JUDGE




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