                       IN THE SUPREME COURT OF TENNESSEE
                                  AT NASHVILLE

                 ADOLPH C. LAVIN, ET AL. v. ROSS JORDON, ET AL.

                       Appeal from the Circuit Court for Davidson County
                          No. 96C-1475 Barbara N. Haynes, Judge



                      No. M1997-00259-SC-R11-CV - Decided April 24, 2000
                                    FOR PUBLICATION


JUSTICE BIRCH, dissenting.

        I agree with my colleagues in the majority w ith respect to two conclusions:

                  1.     T he max imum amount recov erable under T enn. C ode A nn. §§
                  37-10-101 to -103 (1996 & S upp. 1999) is $10,000; and

                  2.      T enn. C ode A nn. § 37-10-103 (1996 & Supp. 1999) does not
                  provide a cause of action separate from that prov ided in Tenn. C ode
                  A nn. §§ 37-10-101 to -102 (1996 & Supp. 1999).

        C hief among our points of disagreement is my firm conv iction that the cause of action for
negligent parental superv ision as established by and refined in B ocock v. R ose1 remains, in my
opinion, v iable, extant, and uncapped in the amount of damag es recoverable. Thus, I cannot agree
that the statutes under discussion prov ide the sole vehicle for the redress of injuries caused by
negligent parental superv ision.

         M y colleagues express the view that T enn. C ode A nn. § 37-10-103 does not provide a
defense to the cause of action established in T enn. C ode A nn. §§ 37-10-101 and -102. They
concede, how ev er, that w hen the parental liability statutes at issue in this case w ere first enacted in
1957, the defense of due care and diligence w as av ailable to the defendant-parent. A ccording to the
majority, the 1981 amendment to the paternal liability statutes abolished the defense that had been
intact since the enactment of the original 1957 statute.2 M oreover, the majority opines that w hat w as
then a def ense before the 1981 amendment is now the basis for liability; that is, a cause of action


        1
            213 Tenn. 195, 373 S.W.2d 441 (1963).
        2
         Implicit in the majority’s assertion that the 1981 amendm ent abolished the defense prov ided
by the original parental liability statute is a recognition that the defense provided by the 1957 statute
surviv ed amendments in both 1969 and 1976.
b ro ug ht under T enn. C ode A nn. §§ 37-10-101 to -103 is v iable today only if the plaintif f can
establish that the defendant’s conduct meets the requirements of T enn. C ode A nn. § 37-10-103.
U nder the majority’s analy sis, what w as once a shield is now a sw ord.

        I cannot agree. The caption to the 1981 am endment of the statutes at issue plainly states that
it is

                 A N A C T to increase the amount of recov ery agai nst a parent or
                 guardian for the act of a minor child; to modify the defense to such
                 a suit; and to amend T ennessee C ode A nnotated, T itle 37, C hapter 10.

C aption, 1981 T enn. Pub. A cts ch. 160 (emphasis added). A plain reading of this caption indicates
that the legislature’s intent in 1981 w as to modif y the defense provided by the 1957 statute and not
to delete or remove it.

          T he majority stresses that the “substantiv e” amendm ent to the statutes now codified as T enn.
C ode A nn. §§ 37-10-101 to -103 occurred in 1981, almost 25 y ears after the enactment of th e
original 1957 statute. In so stating, the majority g lides by the fact that the 1957 parental liability
statutes w ere amended in 1969 and 1976.3 B oth the 1969 and 1976 amendments to the original 1957
statutes occurred after this C ourt decided B ocock and presumably w ith the legislature’s f ull
k no w l ed g e of the case . S ee H odges v . S.C . Toof & C o., 833 S.W .2d 896, 899 (T enn. 1992) (stating
that the “[l]egislature is presumed to know the state of the law on the subject under consideration
at the time it enacts legislation.”) If, as the majority implies, the legislature intended to remove the
defense provided by the 1957 statute as a reaction to the 1964 B ocock decision, it could hav e been
easily accomplished in 1969 or 1976, at the same time other portions of the same parental liability
statutes were in the amendment process.

        F inally, the majority states that T enn. C ode A nn. § 37-10-103 does not provide a cause of
action independent from that established in Tenn. C ode A nn. §§ 37-10-101 to -102, and that when
the legislature acted to amend the parental liability statutes in 1981, the sponsors of the amendm ents
“did not in tend . . . to establish a separate cause of action against parents . . . [only] to clarify the
circumstances under w hich parents could be held liable.” I agree that the legislature did not intend
to establish a separate cause of action when it enacted the statute that is now codified at T enn. C ode
A nn. § 37-10-103. It did not have to do so because one already ex isted, and had existed, since our
1964 decision in B ocock. A dditionally, the majority’ s assertion that Tenn. C ode A nn. § 37-10-103
w as provided by legislators merely “to clarify the circumstances under w hich parents could be held
liable” is am bi g uo us . In f erent ia ll y , it w ou ld ap pe ar f rom the m ajority’s ow n argument that if the
“circumstances” outl ined by T enn. C ode A nn. § 37-10-103 of the current parental liability statute
w ere not satisfied, that the parent would hav e--as I have argued--a defense to the action prov ided by
T enn. C ode A nn. §§ 37-10-101 to -102.


        3
        Indeed, the defendants whose liability was increased by the 1969 and 1976 amendments
quite possibly thought them substantive.

                                                       -2-
        F or the reasons outlined abov e, I respectfully dissent. T ennessee C ode A nnotated § 37-10-
103 provides a defense to the v icarious liability im posed by T enn. C ode A nn. § 37-10-101. Though
the max imum amount recov erable under T enn. C ode A nn. §§ 37-10-101 to -103 is $10,000, the
cause of action for negligent parental supervision established by this C ourt in B ocock remains viable
and unaf fe cted by the s tatu tory cap o f $ 10,00 0. T hus, I adhere to my firmly held v iew that the
B ocock cause of action and the statutory prov isions each hav e independent existence and application.




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