                  IN THE SUPREME COURT OF TENNESSEE
                             AT KNOXVILLE
                                September 5, 2013 Session

                JOLYN CULLUM ET AL. v. JAN MCCOOL ET AL.

          Appeal by Permission from the Court of Appeals, Eastern Section
                       Circuit Court for Hamilton County
                     No. 12C202     L. Marie Williams, Judge


                No. E2012-00991-SC-R11-CV - Filed December 18, 2013




J ANICE M. H OLDER, J., concurring and dissenting.

       I fully concur in the majority’s conclusion that Wal-Mart owed a duty of reasonable
care to its customers to prevent them from suffering harm and that the trial court erred in
granting Wal-Mart’s motion to dismiss. I write separately, however, to reaffirm my view
that “any discussion of foreseeability in the context of duty encroaches upon the role of the
finder of fact.” Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 372 (Tenn. 2009)
(Holder, J., concurring and dissenting) (quoting Satterfield v. Breeding Insulation Co., 266
S.W.3d 347, 375 (Tenn. 2008) (Holder, J., concurring and dissenting)). See also Hale v.
Ostrow, 166 S.W.3d 713, 720 (Tenn. 2005) (Holder, J., concurring and dissenting);
Burroughs v. Magee, 118 S.W.3d 323, 338 (Tenn. 2003) (Holder, J., concurring and
dissenting); Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 92 (Tenn. 2000) (Holder, J.,
concurring).

       Instead of the majority’s “balancing approach,” I favor the duty formulation of the
Restatement (Third) of Torts, which states that “[a]n actor ordinarily has a duty to exercise
reasonable care when the actor’s conduct creates a risk of physical harm.” Restatement
(Third) of Torts: Phys. & Emot. Harm § 7(a) (2010) [hereinafter Restatement (Third) of
Torts]. Under the Restatement (Third) of Torts, this general duty of reasonable care may not
apply, however, “when an articulated countervailing principle or policy warrants denying or
limiting liability in a particular class of cases . . . .” Restatement (Third) of Torts § 7(b). A
no-duty rule is therefore appropriate when a court can “promulgate relatively clear,
categorical, bright-line rules of law applicable to a general class of cases.” Id. cmt. a. The
Restatement (Third) of Torts warns, however, that these no-duty rules “should be articulated
directly without obscuring references to foreseeability.” Id. cmt. j.1

       Applying the Restatement (Third) of Torts to this case, I would hold that Wal-Mart
owed its customers a duty to exercise reasonable care on the date in question. Accordingly,
whether Wal-Mart should have foreseen that Ms. McCool would harm other patrons is
relevant only in determining whether Wal-Mart breached its duty of reasonable care and
whether its actions were a proximate cause of Ms. Cullum’s injuries. Breach of duty and
proximate cause, however, are jury issues that should not be determined by the trial court as
a matter of law “unless the uncontroverted facts and inferences to be drawn from them make
it so clear that all reasonable persons must agree on the proper outcome.” Haynes v.
Hamilton Cnty., 883 S.W.2d 606, 612 (Tenn. 1994). See also Restatement (Third) of Torts
§ 7 cmt. i (acknowledging that “[s]ometimes reasonable minds cannot differ about whether
an actor exercised reasonable care” and that courts may therefore determine negligence as
a matter of law). Because the majority’s balancing approach deprives the jury of its ability
to determine these issues, I am unable to concur in this portion of the opinion.




                                                            JANICE M. HOLDER, JUSTICE




        1
           Although the Restatement (Third) of Torts’s approach to duty remains a minority position, a
growing number of jurisdictions have adopted the new Restatement. See, e.g., Thompson v. Kaczinski, 774
N.W.2d 829, 835 (Iowa 2009); A.W. v. Lancaster Cnty. Sch. Dist. 0001, 784 N.W.2d 907, 918 (Neb. 2010).
Similarly, some jurisdictions have eliminated foreseeability as an element of duty but have not expressly
adopted the Restatement (Third) of Torts. See, e.g., Gipson v. Kasey, 150 P.3d 228, 231 (Ariz. 2007) (stating
that “[f]oreseeability . . . is more properly applied to the factual determinations of breach and causation than
to the legal determination of duty.”); In re N.Y.C. Asbestos Litig., 840 N.E.2d 115, 119 (2005) (recognizing
that “foreseeability bears on the scope of a duty, not whether a duty exists in the first place.”).
