                     IN THE SUPREME COURT OF TENNESSEE
                                 AT JACKSON
                          October 2, 2008 Session Heard at Nashville1

            CHERYL BROWN GIGGERS ET AL. v. MEMPHIS HOUSING
                          AUTHORITY ET AL.

                          Appeal by Permission from the Court of Appeals
                                 Circuit Court for Shelby County
                            No. CT-000896-03     Kay S. Robilio, Judge



                      No. W2006-00304-SC-R11-CV - Filed February 3, 2009



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

        I fully concur in the majority’s conclusion that Memphis Housing Authority (“MHA”) owed
a duty to its tenants to take reasonable steps to prevent them from suffering harm, and I concur in
the reversal of the trial court’s grant of summary judgment. I write separately to reaffirm my view
that “any discussion of foreseeability in the context of duty encroaches upon the role of the finder
of fact.” Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 375 (Tenn. 2008) (Holder, J.,
concurring and dissenting).

        As I stated in my dissent in Satterfield, I favor the Restatement (Third) of Torts approach to
duty and would hold that “‘[a]n actor ordinarily has a duty to exercise reasonable care when the
actor’s conduct creates a risk of physical harm.’” Id. at 377 (quoting Restatement (Third) of Torts:
Liability for Physical Harm § 7(a) (Proposed Final Draft No. 1, 2005)) [hereinafter Restatement
(Third) of Torts]. In this case, MHA had a duty to exercise reasonable care in permitting tenants
with a history of criminal behavior to live on the premises. Whether it was foreseeable to MHA that
Mr. Miller would harm other tenants is relevant only to a determination of whether MHA breached
its duty of reasonable care and proximately caused the death of Charles Brown, Sr. See id. Those
issues should remain in the province of the jury and should not be determined by the trial court as
a matter of law.

       Any determination that no duty exists should be guided by the Restatement (Third) of Torts,
which states that “[i]n exceptional cases, when an articulated countervailing principle or policy
warrants denying or limiting liability in a particular class of cases, a court may decide that the
defendant has no duty or that the ordinary duty of reasonable care requires modification."

        1
          Oral argument was heard at the Davidson County Drug Court IV in Nashville, Tennessee, as a part of this
Court’s Supreme Court Advancing Legal Education for Students (S.C.A.L.E.S.) project.
Restatement (Third) of Torts § 7(b); see also 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, 787-90 (2005).

        Under this framework, a no-duty rule is appropriate when we can “promulgate relatively
clear, categorical, bright-line rules of law applicable to a general class of cases.” Id. cmt. a. The
commentary to Restatement (Third) of Torts goes on to provide that these no-duty rules “should be
articulated directly without obscuring references to foreseeability.” Id. cmt. j. While I am amenable
to engaging in an analysis to determine if a bright-line rule should be recognized, I cannot concur
in a balancing test that obscures these policy determinations.




                                                      JANICE M. HOLDER, CHIEF JUSTICE




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