                    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



JANICE M. HOLDER, J., concurring and dissenting.

         I concur in the majority’s determination that the case should be remanded to the trial court
for further proceedings. Unlike the majority, however, I would conclude that the defendants owed
a duty of care to the decedent. I would therefore remand with instructions for the jury to decide
questions of fact relevant only to determinations of whether the defendants breached that duty and
caused the decedent’s death. Satterfield v. Breeding Insulation Co., ___ S.W.3d ____, ____ (Holder,
J., dissenting).

        “As we have stated on numerous occasions, the existence or nonexistence of a duty owed to
the plaintiff by the defendant is entirely a question of law for the court.” Carson v. Headrick, 900
S.W.2d 685, 690 (Tenn. 1995); see also Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn. 1993);
McClenehan v. Cooley, 806 S.W.2d 767, 774 (Tenn. 1991). The majority nonetheless remands the
issue of duty to the jury thereby transforming this question of law into a question of fact. The
majority’s result arises from the incorporation of foreseeability into an analysis of duty and
demonstrates why that approach is inherently flawed.

        In my view, a duty of reasonable care arises whenever a defendant’s conduct poses a risk of
harm to persons or property. Satterfield, ____ S.W.3d at ____ (Holder, J., dissenting). The
existence of a duty is generally presumed as long as the plaintiff alleges that he or she was harmed
by the defendant’s conduct. Id. The existence of a duty is akin to a policy determination that a
relationship exists sufficient to impose a duty to use reasonable care. See W. Jonathan Cardi,
Purging Foreseeability: The New Vision of Duty and Judicial Power in the Proposed Restatement
(Third) of Torts, 58 Vand. L. Rev. 739 (2005) (“At its core, duty–the imposition upon a class of
actors of an obligation of certain conduct–inescapably involves matters of policy.”)

        The majority correctly notes that “[g]enerally, drivers of a vehicle owe their passengers a duty
to exercise reasonable care under the circumstances while driving” but nonetheless declines to assert
that a duty exists. In this case, the defendants engaged in risky behavior by drinking in excess and
driving on the interstate with an unrestrained, intoxicated passenger in the bed of the truck. Their
conduct created a risk of harm. Thus, the defendants had a duty to exercise reasonable care.
Whether the defendants placed the decedent in the back of the truck or the decedent climbed in the
back of the truck voluntarily is relevant only to a determination of whether the defendants breached
their duty of reasonable care and caused the decedent’s death.

        For the foregoing reasons, I would reverse the trial court’s grant of summary judgment with
instructions that the existence of a duty has been established and remand for further proceedings
consistent with this holding.




                                                      JANICE M. HOLDER, JUSTICE




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