                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE


ALLEN E. HASTY and wife,            )
JUDY DARLENE HASTY,                 )
                                    )                 FILED
             Plaintiff/Appellee,    ) Rutherford Circuit No. 31613
                                    )                   December 2, 1998
VS.                                 ) Appeal No. 01A01-9709-CV-00531
                                    )                   Cecil W. Crowson
THOMAS R. THRONEBERRY, Ind.         )                Appellate Court Clerk
and d/b/a THRONEBERRY               )
PROPERTIES and SHARON               )
CLUTTER,                            )
                                    )
             Defendant/Appellant.   )


          APPEAL FROM THE CIRCUIT COURT OF RUTHERFORD COUNTY
                      AT MURFREESBORO, TENNESSEE
                 THE HONORABLE ROBERT E. CORLEW, JUDGE




L. GILBERT ANGLIN
Murfreesboro, Tennessee
Attorney for Appellant



LARRY D. BRANDON
Murfreesboro, Tennessee
Attorney for Appellee




AFFIRMED


                                                      ALAN E. HIGHERS, J.



CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

DAVID R. FARMER, J.
       Defendant Thomas R. Throneberry appeals the trial court’s judgment in the amount of $6,000

entered in favor of Plaintiff/Appellee Allen E. Hasty after a jury trial. For the reasons hereinafter

stated, we affirm the trial court’s judgment.



       A transcript of the evidence at trial does not appear in the record on appeal; however, the

record does contain a Statement of the Evidence which was filed by Throneberry and later approved

by the trial court. See T.R.A.P. 24(c). Although the evidence contained therein is sparse, the

Statement of the Evidence reveals that Hasty was a maintenance worker employed by Throneberry.

As compensation, Hasty received $220 per week in salary plus the use of an apartment in

Murfreesboro. In March 1992, Hasty was involved in an automobile accident while operating a

truck owned by his employer, Throneberry. Thereafter, a dispute arose between the parties as to

whether Hasty had permission to drive the truck at the time of the accident. As a result of this

dispute, Throneberry fired Hasty on March 23, 1992.



       On March 24, 1992, Throneberry verbally notified Hasty that he would have to move from

the apartment because he no longer worked for Throneberry. Five days later, on March 29, 1992,

Throneberry caused a written notice to be placed on the door of the apartment directing Hasty to

vacate the apartment by 12:00 midnight of the following day. On March 30, 1992, Throneberry

notified Hasty that the electric bills for the apartment remained unpaid and that Throneberry would

cause the utilities to be turned off if Hasty did not pay them by 1:00 p.m. that day. The utilities for

the apartment were in Throneberry’s name. The next day, April 1, 1992, Throneberry caused the

electricity to the apartment to be turned off. As a result, Hasty was forced to stay in a hotel. On

April 6, 1992, Throneberry changed the locks on the apartment, thereby preventing Hasty from

gaining access to the apartment. Another employee of Throneberry later gave Hasty permission to

enter the apartment to retrieve his personal belongings.



       Hasty subsequently was treated by an orthopedic surgeon for pain in his right shoulder.

Hasty also complained of chronic headaches and was referred to a neurologist. The neurologist

diagnosed Hasty as having post-traumatic headaches, and he, in turn, referred Hasty to a psychiatrist

for further treatment. The psychiatrist, Dr. Ravi Singh, treated Hasty for major depression and Post-


                                                  2
Traumatic Stress Disorder (PTSD). Dr. Singh concluded that these injuries were caused by a

combination of factors, including the March 1992 automobile accident, Hasty’s loss of employment,

and Hasty’s ouster from his apartment by Throneberry’s actions of having the electricity turned off

and locking Hasty out of the apartment. Symptoms of Hasty’s PTSD included daily panic attacks

and headaches.



        As a result of his injuries, Hasty filed this action against Throneberry in March 1993.1 In

essence, the allegations of Hasty’s complaint asserted claims for defamation, outrageous conduct,

and wrongful eviction. The complaint specifically alleged that, by his actions, Throneberry

willfully, maliciously, and intentionally caused physical, emotional, and economic harm to Hasty.



        Throneberry filed a motion for summary judgment contending, inter alia, that Hasty could

not maintain an action for wrongful eviction against him because the parties’ relationship was that

of employer-employee rather than landlord-tenant. The trial court denied Throneberry’s motion as

to Hasty’s wrongful eviction claim, but the court granted the motion as to the claims for defamation

and outrageous conduct and, accordingly, dismissed these claims.



        Pending these proceedings, Hasty pursued a workers’ compensation claim for the injuries

that he suffered as a result of the March 1992 automobile accident. Hasty’s claimed injuries

included depression and PTSD. Throneberry and his workers’ compensation insurance carrier

denied that Hasty’s injuries were caused by the March 1992 automobile accident, but they agreed

to settle Hasty’s claim for the sum of $30,000. The amended settlement order entered in January

1996 indicated that Hasty’s psychiatrist, Dr. Ravi Singh, believed “many factors contributed to

[Hasty’s] depression and [PTSD].”

        Before the trial on the wrongful eviction claim, Throneberry filed two motions in limine in

which he asked the trial court to exclude certain testimony of Dr. Ravi Singh concerning Hasty’s

depression and PTSD. As grounds for these motions, Throneberry contended that (1) Hasty already

had recovered workers’ compensation benefits for his alleged injuries and, thus, the exclusivity



        1
         Hasty’s wife also was a plaintiff, but the trial court’s judgment did not award her any damages and
she is no t a party to th is appea l.

                                                     3
provisions of the Workers’ Compensation Law precluded him from recovering for his injuries in this

action, and (2) Dr. Singh’s testimony did not establish within a reasonable degree of medical

certainty that Hasty’s injuries were caused by Throneberry’s actions. Throneberry also moved to

amend his answer to assert the Workers’ Compensation Law as an additional defense. The trial court

subsequently denied Throneberry’s motions in limine and permitted the majority of Dr. Singh’s

deposition testimony to be read to the jury. The record does not reveal that the trial court ever ruled

on Throneberry’s motion to amend his answer.



       At trial, Throneberry renewed his motions in limine to exclude Dr. Singh’s testimony relating

to Hasty’s PTSD. The trial court agreed that Hasty could not recover for that portion of his PTSD

caused by his work-related injury, but the court ruled that it would be a jury issue as to what portion

of Hasty’s injury was caused by his work-related injury and what portion was caused by

Throneberry’s conduct in the present case.



       The trial court also permitted Hasty to amend his pleadings to conform to the evidence by

asserting a claim for intentional infliction of emotional distress. At the trial’s conclusion, the jury

returned a verdict finding that Throneberry acted wrongfully in locking Hasty out of his apartment

and/or in terminating his electric service and, further, that Hasty’s injuries were caused by

Throneberry’s actions. The jury found that Hasty was entitled to $500 in damages for the loss of his

personal property and $10,000 for his mental, emotional, and psychological damages. The jury

determined that fifty-five percent (55%) of these latter damages were caused by Throneberry’s

actions in the present case.



        In accordance with the jury’s verdict, the trial court entered a judgment awarding Hasty

damages in the amount of $6,000. Throneberry filed a motion for new trial in which he raised the

same arguments that he had raised in his pre-trial motions. The trial court denied the motion, and

this appeal followed.



        Throneberry first contends, on the authority of Crooms v. Reichman, 8 Tenn. Civ. App. 87

(1918), that he and Hasty had an employer-employee relationship rather than a landlord-tenant

                                                  4
relationship and, thus, that Hasty could not maintain an action against him for wrongful eviction.

In Crooms, the court held that, when an employee occupies his employer’s premises as an incident

to his employment, this circumstance does not transform the employee into a tenant of his employer.

Crooms, 8 Tenn. Civ. App. at 90. Instead, the parties’ relationship remains that of employer-

employee. In the event of his discharge from employment, the employee becomes a trespasser, and

the employer, as the owner of the premises, has the right to enter the premises and to remove the

employee’s possessions therefrom. Id.



       Contrary to Throneberry’s suggestion, the court’s holding in Crooms did not preclude Hasty

from maintaining an action against Throneberry based on the latter’s allegedly wrongful conduct in

ousting Hasty from the premises. Although the court in Crooms followed the rule that the

discharged employee was a trespasser without the rights of a tenant, the court also recognized that

the employer’s right to remove the employee and his belongings from the premises was not without

limitations. The court explained:

               [W]e proceed to lay down the following as our conception of the
               measure of duty or care upon the part of a landowner who rightfully
               enters to remove the goods of a trespasser, . . . . Expressed in familiar
               terms extracted from our numerous decisions, the duty owing the
               occupant and trespasser is that of seeing that he suffer no injury or
               loss as the result of intentional, willful or wanton conduct. It is
               wholly illogical to say that the landlord in such case must enter upon
               his premises with due care and solicitude for the property of the
               discharged tenant, in view of a proposition of unassailable soundness
               that the trespasser at the moment is challenging the right of the
               enterer and necessarily provoking anger and counter force. Hence the
               imperativeness of laying down the rule that the landlord in such case
               is not chargeable with what might be deemed reasonable and ordinary
               care implied and observed in ordinary social and legal relations, but
               that he must simply refrain from doing or inflicting unnecessary, or
               willful or wanton injury to the goods of the occupant.

                      That the landlord must refrain from deliberately destroying
               the goods of his tenant and must do no unnecessary act resulting in
               their destruction, nor pursue a course of such recklessness of
               consequences as to amount to willfulness is a proposition which must
               be accepted for the well-known reason that the law does not tolerate
               revenge nor acquiesce in the infliction of punishment upon a party
               who has been guilty of wrongdoing. There is no forfeiture of goods
               and rights because of such conduct; hence the goods must not be
               recklessly or wantonly broken up and, booted about nor shamelessly
               or unnecessarily exposed to hazards.

Crooms, 8 Tenn. Civ. App. at 92-93.




                                                  5
       In accordance with Crooms, Throneberry had a duty to refrain from any intentional, willful,

or wanton conduct which would cause injury or loss to Hasty. In a more recent opinion, our supreme

court has reaffirmed the existence of such a duty, holding that:

                 The owner of realty owes to a trespasser the duty not to injure him
                 wilfully, maliciously or intentionally. [Citations omitted].

                        “One acts wantonly within the rule that a property owner
                 owes to a trespasser only the duty to refrain from wilful, wanton and
                 reckless conduct, when he inflicts injury intentionally or acts with
                 complete indifference to consequences.”

Yarbrough v. Potter, 207 S.W.2d 588, 589 (Tenn. 1948) (citing Cohen v. Davies, 25 N.E.2d 223

(Mass. 1940)).



       In his amended complaint, Hasty alleged that Throneberry acted intentionally, willfully, and

maliciously in causing the electricity in Hasty’s apartment to be terminated and in changing the locks

on the apartment so that Hasty could not enter the apartment to retrieve his personal belongings.

Hasty further alleged that, in taking these actions, Throneberry intentionally, willfully, and

maliciously intended to cause harm to Hasty and his family. In light of these pleadings, we conclude

that the trial court correctly refused to dismiss Hasty’s complaint on the basis of Crooms. Even if

Crooms precluded Hasty from maintaining a wrongful eviction action against Throneberry, Hasty’s

amended complaint contained sufficient allegations to state a cause of action under the alternate

theory of recovery set forth in Crooms, i.e. that, in ousting Hasty from the premises, Throneberry

engaged in intentional, willful, or wanton conduct such as to cause injury or loss to Hasty. The

jury’s verdict further supported this theory because the jury found that Throneberry wrongfully

caused $500 in damages to Hasty’s property.



       We note that Throneberry’s appeal fails to challenge the merits of Hasty’s claim under this

alternate theory of recovery. Moreover, even if the court’s holding in Crooms prevented Hasty from

maintaining an action for wrongful eviction, it did not prevent him from maintaining an action for

intentional infliction of emotional distress. As previously indicated, the trial court allowed Hasty

to amend his pleadings to assert such a claim, and Throneberry does not appeal this aspect of the trial

court’s ruling. In the absence of the relevant portions of the transcript or a copy of the trial court’s

charge to the jury, we must presume that the court fully and correctly charged the jury on the parties’

                                                   6
respective theories of the case and on the applicable law. Bennett v. Sanders, 685 S.W.2d 1, 2

(Tenn. App. 1984); Pickard v. Ferrell, 325 S.W.2d 288, 293 (Tenn. App. 1959).



       Throneberry also contends that the trial court erred in permitting Hasty to present proof that

he suffered from PTSD because (1) Hasty previously recovered for this injury in a workers’

compensation proceeding and (2) the evidence failed to establish within a reasonable degree of

medical certainty that Hasty’s injury was caused by Throneberry’s allegedly tortious conduct.




       Throneberry’s first objection to this evidence is based on the exclusivity provisions of the

Workers’ Compensation Law. As pertinent, that law provides that:

               The rights and remedies herein granted to an employee subject to the
               Workers’ Compensation Law on account of personal injury or death
               by accident, including a minor whether lawfully or unlawfully
               employed, shall exclude all other rights and remedies of such
               employee, . . . at common law or otherwise, on account of such injury
               or death.

T.C.A. § 50-6-108(a) (1991). In interpreting this provision, our supreme court has held that, “in the

field of workmen’s compensation law, and in suits by a worker against his employer, the initial

injury is the cause of all that follows, even where there is superimposed upon the original injury, a

new, or additional or independent injury during the course of treatment, negligent or otherwise.”

McAlister v. Methodist Hosp., 550 S.W.2d 240, 245 (Tenn. 1977). In McAlister, a hospital

employee suffered an on-the-job injury to her back. McAlister, 550 S.W.2d at 241. The employee

received treatment for her injury from the hospital which employed her. Contending that the

hospital’s treatment was negligent, the employee thereafter brought a malpractice action against the

hospital. Id. The supreme court dismissed the action, however, holding that the Workers’

Compensation Law provided the employee’s exclusive remedy. Id. at 245.



       The supreme court’s holding in McAlister arguably would preclude claims such as those

brought in the present case. Hasty’s initial injury was caused by an on-the-job automobile accident

for which he received workers’ compensation benefits. Hasty’s injury later was aggravated by the

allegedly tortious conduct of Throneberry. Thus, the facts of this case are analogous to those found



                                                 7
in McAlister, where the employee’s on-the-job injury was aggravated by her employer’s subsequent

negligence.



        Nevertheless, we conclude that the supreme court’s holding in McAlister did not prevent

Hasty from recovering for his additional injuries in this case. We do not view the supreme court’s

McAlister decision as overruling another line of case precedent which holds that the exclusivity

provisions of the Workers’ Compensation Law do not apply if the plaintiff alleges and proves that

the defendant intended to cause his injury. Cooper v. Queen, 586 S.W.2d 830, 833 (Tenn. App.

1979). In the present case, Hasty’s complaint specifically alleged that, by his tortious conduct,

Throneberry intended to cause harm to Hasty. If proven, these allegations were sufficient to support

a common-law action for damages against Throneberry. Blair v. Allied Maintenance Corp., 756

S.W.2d 267, 270-71 (Tenn. App. 1988).



        As an aside, we question whether the evidence presented supported Hasty’s claim for

intentional infliction of emotional distress. We note that this was essentially the same claim that was

dismissed by the trial court prior to trial. “Intentional infliction of emotional distress and outrageous

conduct are not two separate torts, but are simply different names for the same cause of action.”

Bain v. Wells, 936 S.W.2d 618, 622 n.3 (Tenn. 1997). On appeal, however, Throneberry has not

challenged the sufficiency of the evidence to support this claim, and, thus, we need not further

address the issue.



        As his second basis for objecting to the evidence of PTSD, Throneberry contends that the

testimony of Hasty’s medical expert, Dr. Ravi Singh, was insufficient to show that Hasty’s injury

was proximately caused by Throneberry’s conduct. See Porter v. Green, 745 S.W.2d 874, 877

(Tenn. App. 1987) (holding that, where physician testifies concerning plaintiff’s injury, physician’s

opinion must be reasonably certain as to cause of injury). In support of this argument, Throneberry

points to testimony where Dr. Singh lists the causes of Hasty’s PTSD, such as Hasty’s automobile

accident, being fired from his job, and his loss of income, but fails to mention the tortious conduct

allegedly committed by Throneberry in the present case.




                                                   8
       We conclude that this argument is without merit. On one occasion, Dr. Singh did fail to

specify the tortious conduct involved in the present case as being the cause of Hasty’s injury;

however, the remainder of Dr. Singh’s testimony is replete with instances where Dr. Singh

adequately described the pertinent conduct:

                     Q.      . . . Would you tell me the psychological trauma that
              you believe stimulated his condition?

                     A.     The psychological trauma is that he lost his job, and
              he had no income. He was locked out of his apartment; his lights
              were cut off.

                      ....

                     Q.     All these factors that we’ve discussed in your
              deposition are contributing factors in the impairment rating that
              you’ve given?

                      A.      According to the history of Mr. Hasty, yes, sir.

                      Q.      Doctor, is it your opinion based upon a reasonable
              degree of medical certainty that there is a causal connection between
              those factors that he related to you in his history and his permanent
              impairment?

                     A.     According to Mr. Hasty’s history, that’s what has
              caused his impairment, caused his condition, depression.

                      ....

                     Q.      Is it a fair statement, Dr. Singh, that not one particular
              event caused the depression and post-traumatic stress disorder, but a
              combination of events?

                     A.       Historically, what I see in Mr. Hasty’s history,
              everything started after March of ‘92, whenever he had the accident
              and lost the job.
                     ....

                      Q.      He told you that his lights were cut off?

                      A.      Yes, sir.

                      Q.      Is that a contributor or a stressor to both diagnoses?

                      A.      Yes, sir.

                      ....

                     Q.     Dr. Singh, the stressors that I’ve asked you about, did
              they occur over a period of time?

                      A.      Yes, they occurred over a period of time.

                      ....



                                                 9
                         Q.   The lights being turned of?

                     A.       The lights being turned off and being locked out of the
               apartment.

                       Q.     And that goes back to the question I asked you. We’re
               not talking about one causal factor that caused --

                         A.    These are cumulative factors. One thing happened that
               then --

                     Q.        Are you saying these are cumulative factors, that
               combined --

                         A.    Combined; right.

                         Q.    -- caused the two conditions that you’ve testified to?

                         A.    Yes, sir.



       Throneberry additionally criticizes Dr. Singh’s testimony because Dr. Singh was unable to

state what percentages of Hasty’s PTSD and depression were caused by the tortious conduct alleged

in the present action. We do not view this failure as being fatal to Hasty’s claim for damages. With

the adoption of comparative fault principles in this state, juries often are asked to apportion fault

where two successive torts result in one indivisible injury. See, e.g., Gray v. Ford Motor Co., 914

S.W.2d 464, 467 (Tenn. 1996). Such a determination is “a matter peculiarly within the province of

the jury,” and we decline to disturb the jury’s apportionment of liability in this case. Turner v.

Jordan, 957 S.W.2d 815, 824 (Tenn. 1997) (quoting Rowlands v. Signal Constr. Co., 549 So. 2d

1380, 1383 (Fla. 1989)).



       The judgment of the trial court is hereby affirmed. Costs of this appeal are taxed to

Throneberry, for which execution may issue if necessary.




                                                                     HIGHERS, J.


CONCUR:



CRAWFORD, P.J., W.S.



                                                  10
FARMER, J.




             11
