               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 June 21, 2016 Session

    CHRISTOPHER DYLAN THOMPSON v. BEST BUY STORES, L.P.

                 Appeal from the Circuit Court for Hamilton County
                     No. 14C859      L. Marie Williams, Judge


            No. E2015-02304-COA-R3-CV-FILED-NOVEMBER 28, 2016


Plaintiff Christopher Dylan Thompson ingested several doses of a liquid form of a drug,
which he says was estazolam, before reporting to work for his employer, defendant Best
Buy Stores, L.P. At work, he appeared tired and slow, and a manager told him to clock
out and end his shift early. On his way home, plaintiff was involved in a car accident.
He brought this negligent entrustment action, alleging that defendant breached a duty by
not stopping him from leaving his place of employment in his own vehicle. The trial
court granted defendant summary judgment, holding defendant “had no duty to prevent
[plaintiff] from leaving the premises driving his own vehicle,” and relying on Lett v.
Collis Foods, Inc., 60 S.W.3d 95 (Tenn. Ct. App. 2001), a factually similar case decided
by this Court. We affirm.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                                      Affirmed

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which THOMAS R.
FRIERSON, II, and ARNOLD B. GOLDIN, JJ., joined.

Kent T. Jones, Chattanooga, Tennessee, for the appellant, Christopher Dylan Thompson.

K. Stephen Powers and Travis B. Holly, Chattanooga, Tennessee, for the appellee, Best
Buy Stores, L.P.

                                        OPINION

                                             I.

       On March 6, 2014, a package arrived in the mail for plaintiff. It contained a vial
of a drug in liquid form, which plaintiff alleged to be estazolam, the generic equivalent of
ProSom, a “chemical cousin of valium.” Plaintiff testified that he ordered it via the
internet on what he referred to as the “grey market.” He said he did not know how much
of the drug came in the vial, maybe “2 to 4 milliliters.” Plaintiff stated that he pulled the
package out of the mail as he was backing out of his driveway to go to work for
defendant. He took two drops of the estazolam with the dropper that came with the vial
and continued on his way to work. When he arrived at the Best Buy parking lot, he took
another drop and then went in to work. Plaintiff testified that he remembers clocking in,
but after that, he has no memory of anything else that happened that day.

        Cory Blake Howell, an assistant sales manager, testified that a co-worker of
plaintiff told Howell that plaintiff was acting slow, tired and not very responsive. Based
on the co-worker’s description of plaintiff’s conduct, Howell declined to allow plaintiff
to operate a large piece of machinery called “Big Joe” in the warehouse part of the store.
It was used to lift boxes for storage on high shelves. Howell told plaintiff to clock out
and end his shift sometime between 6:00 and 7:00 pm. Plaintiff got in his car,
presumably heading to his mother’s house, where he then resided. At 7:02 pm,
Chattanooga police officer Michael Sharp, Jr. received a notification of an accident that
occurred on Highway 153 north, just before the Chickamauga bridge. Plaintiff’s car had
hit a median wall on the left side, bounced off, and hit a pickup truck on its left rear side.
Apparently both vehicles were totaled in the accident.

        Officer Sharp testified that he spent ten to fifteen minutes talking with plaintiff at
the accident site. Plaintiff told him he thought one of his tires had a blowout, which
caused him to lose control. Officer Sharp testified that the car’s left front tire had a large
slit, which would be consistent with a blowout, but might also have been caused by the
car striking the median wall. Officer Sharp saw no indication that plaintiff was under the
influence of an intoxicant. He said plaintiff was responsive and conversed normally, and
that if plaintiff’s car had been drivable, he would have allowed plaintiff to continue
driving home.

        An unidentified female arrived on the accident scene and said she was going to
drive plaintiff home. Officer Sharp testified that the two seemed friendly and he assumed
that they knew each other. Plaintiff and his mother testified that she was a stranger to
them. She drove him to his mother’s house. Plaintiff’s mother, Staci Thompson, testified
that plaintiff was stumbling, “not making any sense, talking out of his head.” The next
morning, she had plaintiff admitted to Moccasin Bend mental health institute, where he
spent several days. Plaintiff testified that he does not remember the next several days
after the accident.

       On July 16, 2014, plaintiff filed this action, alleging that defendant was negligent
in allowing him to leave the store’s premises in an inebriated state. Plaintiff’s theory was
that defendant was liable for negligent entrustment of his own vehicle under the
                                              2
circumstances. Following discovery, defendant moved for summary judgment, arguing
that it had no legal duty to prevent plaintiff from leaving its premises in his car; that
defendant’s actions could not be shown to have caused plaintiff’s alleged injuries; and
that as a matter of law, defendant did not “entrust” plaintiff with his own car because it
had no right to exercise control over that vehicle. The trial court granted the motion,
holding:

             The Lett case establishes that Best Buy had no duty to prevent
             [plaintiff] from leaving the premises driving his own vehicle.
             There is no evidence in the record that Best Buy contributed
             to, caused, or condoned [plaintiff’s] condition which
             allegedly is a result of the ingestion of a certain medication.
             The accident did not occur on Best Buy’s premises and
             [plaintiff] had been told to clock out. He no longer was under
             Best Buy’s control and there is no evidence he was told to
             leave the premises.

                                     *      *       *

             The defendant has offered evidence through the testimony of
             the investigating officer that [plaintiff] was not so impaired as
             to be unable to operate a motor vehicle. The plaintiff has
             brought forth no evidence to the contrary and presumably
             relies upon the fact of the accident as evidence of impairment.
             This reliance is insufficient to overcome the [m]otion for
             [s]ummary [j]udgment. Therefore, there is no evidence of
             causation.

             Plaintiff sues defendant also on a negligent entrustment claim.
             The vehicle or chattel in issue is [plaintiff’s] own car. Best
             Buy exercised no control of the vehicle and had no right to
             control the vehicle . . . A negligent entrustment cause of
             action requires the defendant to supply a chattel to an
             incompetent user. “Negligent entrustment is committed at the
             moment when control of the chattel is relinquished by an
             entrustor to an incompetent user.” West [v. E. Tenn. Pioneer
             Oil Co., 172 S.W.3d 545, 555 (Tenn. 2005)]. . . . [T]he
             chattel involved is the motor vehicle owned and operated by
             the plaintiff. There was no control or right of control of that
             motor vehicle by the defendant.

                                            3
Plaintiff timely filed a notice of appeal.

                                             II.

       Plaintiff raises the following issue, as quoted from his brief:

              Whether [d]efendant, . . . knowing of [plaintiff’s] incapacity
              to operate machinery and inability to communicate with
              workers, customers and management, [is] responsible for
              [n]egligent [e]ntrustment for letting him leave the premises in
              his automobile, without calling his secondary and/or
              emergency numbers, when he subsequently totaled two
              automobiles[.]

                                             III.

       Regarding our standard of review of a grant of summary judgment, the Supreme
Court has recently stated as follows:

              Summary judgment is appropriate when “the pleadings,
              depositions, answers to interrogatories, and admissions on
              file, together with the affidavits, if any, show that there is no
              genuine issue as to any material fact and that the moving
              party is entitled to a judgment as a matter of law.” Tenn. R.
              Civ. P. 56.04. We review a trial court’s ruling on a motion
              for summary judgment de novo, without a presumption of
              correctness.

                                        *     *      *

              [I]n Tennessee, as in the federal system, when the moving
              party does not bear the burden of proof at trial, the moving
              party may satisfy its burden of production either (1) by
              affirmatively negating an essential element of the nonmoving
              party’s claim or (2) by demonstrating that the nonmoving
              party’s evidence at the summary judgment stage is
              insufficient to establish the nonmoving party’s claim or
              defense. . . . The nonmoving party must demonstrate the
              existence of specific facts in the record which could lead a
              rational trier of fact to find in favor of the nonmoving party.

                                              4
Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn.
2015) (italics in original).

      In making the determination of whether summary judgment was correctly granted,

             [w]e must view all of the evidence in the light most favorable
             to the nonmoving party and resolve all factual inferences in
             the nonmoving party’s favor. Martin v. Norfolk S. Ry. Co.,
             271 S.W.3d 76, 84 (Tenn. 2008); Luther v. Compton, 5
             S.W.3d 635, 639 (Tenn. 1999); Muhlheim v. Knox Cnty. Bd.
             of Educ., 2 S.W.3d 927, 929 (Tenn. 1999). If the undisputed
             facts support only one conclusion, then the court’s summary
             judgment will be upheld because the moving party was
             entitled to judgment as a matter of law. See White v.
             Lawrence, 975 S.W.2d 525, 529 (Tenn. 1998); McCall v.
             Wilder, 913 S.W.2d 150, 153 (Tenn. 1995).

Wells Fargo Bank, N.A. v. Lockett, No. E2013-02186-COA-R3-CV, 2014 WL 1673745
at *2 (Tenn. Ct. App. E.S., filed Apr. 24, 2014).

                                          IV.

        In Lett v. Collis Foods, Inc., 60 S.W.3d 95 (Tenn. Ct. App. 2001), an employee
reported for work at a Waffle House restaurant in an obviously intoxicated state. The
defendant employer tried to sober her up and offered her a ride home, which she refused.
Id. at 97. The employee wrecked her car on the way home, injuring the plaintiff in the
accident. We addressed the question of whether “the defendant employer owed a duty to
a third person to prevent an intoxicated employee from leaving work and driving home.”
Id. We stated:

             To establish duty, a plaintiff must show that there exists a
             “legal obligation owed by defendant to plaintiff to conform to
             a reasonable person standard of care for the protection against
             unreasonable risks of harm.” [McCall v. Wilder, 913 S.W.2d
             150, 153 (Tenn. 1995)]. A risk of harm is unreasonable “if
             the foreseeable probability and gravity of harm posed by
             defendant’s conduct outweigh the burden upon defendant to
             engage in alternative conduct that would have prevented the
             harm.” Id. In making this determination, several factors are
             important: (1) the foreseeable probability of the harm or
             injury occurring; (2) the possible magnitude of the potential
                                           5
harm or injury; (3) the importance or social value of the
activity engaged in by the defendant; (4) the usefulness of the
conduct to the defendant; and (5) the feasibility, relative
usefulness, relative safety, and relative costs and burdens, of
an alternative, safer course of conduct. Id. As previously
indicated, the question of whether one person owes a duty to
another is a question of law to be decided by the court.

Lett argues that Collis Foods was negligent in permitting
Mills to drive home in her condition. Implicit in this
argument is the contention that Collis Foods had a duty to
prevent Mills from driving home from work in an intoxicated
state.

                       *      *      *

[A] crucial question is whether Collis Foods had the means
and ability to control Mills’ conduct. If it did not have the
means or the ability to control the conduct in question, then
Collis Foods had no duty to control same, and it cannot be
held to be negligent for failing to do so.

                       *      *      *

We find that the facts of the instant case . . . do not present
affirmative acts sufficient to impose a duty upon Collis Foods
to control the conduct of Mills, who was off-premises and
off-duty as well. She arrived at work intoxicated, and Collis
Foods did not contribute to, condone, or seek to
accommodate, her intoxication. It did not require her to drive
home; in fact, it attempted to find her safe passage home, but
she refused. In sum, the employer did not provide her
mobility she otherwise did not have; it did not encourage her
to drive home; and it did not contribute to the condition that
made it unsafe for her to drive. In effect, the employer “did
no more than acquiesce in [her] determination to drive [her]
own car.” Cecil [v. Hardin], 575 S.W.2d [268,] 272 [Tenn.
1978].

                       *      *      *

                              6
              It is important in this case to recognize that Collis Foods did
              absolutely nothing to contribute to Mills’ state of intoxication
              or her decision to drive herself home. When she clocked in,
              she was already inebriated. At that juncture, the employer
              was presented with an intoxicated employee “on the clock”
              who, because of her condition, could not perform her
              duties. . . . Collis Foods had no legal right to tie her up or “sit
              on her” or otherwise prevent her from driving away in her
              own car. From a legal standpoint, it did not have the means
              or the ability to control its employee when she made the
              decision to drive a vehicle in her condition. The employer
              certainly was under no obligation to allow Mills to stay “on
              the clock” or to stay on its premises when she was too
              inebriated to work. The employer’s passive acquiescence in
              her leaving the premises and driving away in her own vehicle,
              acts they had no legal right to prevent, is simply not enough
              to impose a duty on this employer who was totally blameless
              in the condition ‒ Mills’ intoxicated state ‒ that led to the
              accident and the plaintiff’s injuries. In our judgment, Collis
              Foods took no affirmative steps that contributed to or
              facilitated Mills’ negligent act ‒ driving a motor vehicle while
              under the influence of an intoxicant.

Id. at 99, 100, 103, 105 (emphasis in original; footnote and internal citation omitted); see
also Williams v. Wal-Mart Stores East, L.P., 832 F.Supp.2d 923, 928 (E.D. Tenn. 2011)
(quoting and applying Lett in holding no duty of employer to prevent impaired employee
from driving home in her own vehicle).

       In Lett, we addressed the question of an employer’s duty to an injured third
person, whereas in this case we are presented with the issue of the employer’s duty to
prevent the employee from injuring himself. In Lett, we held that an employer had no
duty to an innocent third party. It would be plainly absurd to now hold that an employer
has a duty to attempt to prevent injury to an employee who voluntarily went to work in an
allegedly impaired state.

       With the principles established by Lett and Williams in mind, we review the proof
presented to the trial court, which consisted largely of deposition testimony. Assistant
manager Howell testified by deposition:

              Q. Did any . . . employees of Best Buy that you were privy to
              that day have anything to say about [plaintiff]?
                                              7
              A. The only person I had communication with about
              [plaintiff] was Dagnan.1

              Q. Okay. What did Dagnan exactly tell you?

              A. Dagnan said he was not responding to the instructions
              Dagnan was giving him in terms of unloading the truck and
              that was ‒ he was just acting slow and not really responding
              to him at all.

              Q. Okay. Did Dagnan ever mention the term “drugs” or
              whether he was on drugs?

              A. Not to my memory, no.

              Q. Okay. Was that a suspicion?

              A. I had no suspicion of it, no.

              Q. Okay. Do you know if Dagnan did?

              A. I cannot speak for Dagnan, no.

                                      *          *   *

              Q. What were you afraid would happen to [plaintiff] if he
              operated machinery?

              A. If someone is acting slow and not communicating well,
              I’m afraid they can’t communicate on Big Joe, which is the
              machinery in question. Do you know how Big Joe works?

              Q. No, I don’t, but you can go ahead and explain.

              A. Okay. Big Joe is a piece of equipment that raises you into
              the air allowing you to unload and load heavy boxes on top of
              rafters. This machinery requires you to communicate as you

       1
         “Dagnan” is obviously another employee of Best Buy, but the record does not reveal
any other information about this person. He or she did not testify.
                                                 8
             go up and as you go down. If you cannot communicate as
             you go up and as you go down, someone could be stuck
             underneath you as you’re coming down or as you’re going up
             and cause an injury. If someone is not communicating very
             well, I cannot have them operating that machinery.

             Q. Okay. Now, when you use the term “not communicating
             very well,” could you elaborate on that?

             A. I got that from Dagnan, who basically would ask ‒ you
             know, would give him instructions, and he wouldn’t be as
             responsive to Dagnan. So in terms of doing that, if you’re not
             being responsive to someone who is giving you instructions
             or not responding to them, I can’t expect you to respond on
             your way down on a big heavy machinery.

                                      *      *      *

             A. I’m not sure I can rate someone’s competency on a one-to-
             ten scale. I just made the judgment call that he was not
             competent enough to operate Big Joe.

             Q. Okay. Would you agree that if someone is not capable of
             operating Big Joe that they are likewise not capable of
             operating an automobile?

             A. I believe they’re two different kinds of vehicles, and no,
             they’re – they’re ‒ to me, they’re two different . . . they’re not
             similar things at all.

                                      *      *      *

             A. I talked to [plaintiff] and said, “I think it’s best for you if
             you go ahead and clock out today. I don’t need you operating
             machinery in the back.” And then he proceeded to ask if he
             was in trouble. And I kept telling him that he was not, no.

      The next morning, Howell called store manager Wendell Norman, Jr. to let him
know that he had told plaintiff to clock out early the night before “because he was acting
slow and tired.” Norman was not at the store during the evening of March 6, 2014, but

                                             9
he was the Best Buy employee who talked with plaintiff’s mother after the accident.
Norman testified as follows:

            Q: . . . Did you or anyone else at Best Buy know that
            [plaintiff] was incompetent?

            A. No.

                                        *   *    *

            Q. Did the employer Best Buy or anybody have reason to
            know that [plaintiff] was incompetent?         When I say
            “incompetent,” let me put it in layman’s terms. He just ain’t
            ready to drive an automobile. Did anybody say that?

            A: No.

            Q. No. On March 6th, 2014, why did [plaintiff] leave Best
            Buy before the end of his shift?

            A. I was not part of that. I wasn’t there. I found out the next
            day, so they just said – Cory Howell said [plaintiff] was a
            little slow.

            Q. Is that all he said?

            A. That’s it. He said he didn’t feel comfortable with him
            operating machinery.

                                        *   *    *

            Q. [D]id Cory Howell send [plaintiff] home?

            A. No.

            Q. Who did?

            A. Nobody did.

            Q. [Plaintiff] just left?

                                            10
             A. We told [plaintiff] to clock out.

             Q. Okay.

             A. Nobody said you have to leave the premises or anything
             like that. He just said you need to clock out. You’re a little
             slow.

             Q. Is it typical for people that clock out to stay in the
             premises of Best Buy?

             A. Yes.

             Q. What would they do?

             A. We have a nice break room, a nice TV on the wall, Direct
             TV. A very comfortable environment.

       Shortly after plaintiff clocked out and headed for his mother’s house, the accident
occurred. Officer Sharp testified as follows regarding the circumstances of the accident
and plaintiff’s apparent condition:

             Q. All right. And did you ask [plaintiff] if he had had any
             injury from the accident?

             A. I did. That’s the first thing I check on an accident.

             Q. And what did he tell you?

             A. He said, “No,” he was fine at that time.

             Q. All right. And what did you mark down on your report
             about any injury to [plaintiff]?

             A. No injury.

             Q. Did you observe him, his physical appearance to determine
             whether or not you saw any indication of an injury?

             A. Yes.

                                            11
Q. Upon your talking to him did you have any reason to
believe that he had any injury?

A. No.

                          *     *    *

Q. Upon your observation of him and speaking to him and his
behavior at the scene, what did you indicate on your report as
to his condition?

A. He was normal at the time.

Q. Did you carefully observe any signs, for any signs of any
alcohol or drug use?

A. I did. I was in his personal space while questioning him
and getting his license and didn’t observe any at the time.

Q. Is that part of your training as a patrolman to be able to
assess the conditions of drivers as far as alcohol and drug
abuse?

A. Yes. That’s correct.

Q. Did you see any need to request any alcohol or drug
testing?

A. No, I did not.

                          *     *    *

Q. Based upon your observations of [plaintiff] and your
speaking to him at the scene, observing his behavior at the
scene, had the vehicle been drivable would you have allowed
him to drive it home?

A. Yes.

                          *     *    *

                                12
Q. Was he able to give you his driver’s license without any
delay?

A. Yes.

Q. And was he able to converse with you in normal
conversation without any problems at all?

A. Yes.

Q. His speech wasn’t delayed or slurred?

A. No.

Q. There wasn’t anything about his speech or his conduct that
told you that he had any sort of health condition?

A. No.

Q. Or that he had any injury in the accident?

A. No.

Q. Did [plaintiff] tell you that he was just tired?

A. He did at one point, said he was sent home from Best Buy
from work for being tired.

Q. Did you question him any further about that?

A. No. I didn’t see a reason to at the time.

Q. But did he appear to be tired to you?

A. No. Not at ‒ not 100 percent. I mean, he wasn’t ‒ you
know, he could talk to me fine. He was walking fine. To me,
there was no ‒ his eyes weren’t drooping or anything of that
nature, so I just went off of what he told me at that time.

Q. And his speech wasn’t delayed ‒

                               13
              A. No.

              Q. ‒ or short or anything like that?

              A. No. He was able to answer all my questions.

       The above testimony from assistant manager Howell, manager Norman, and
officer Sharp, is all uncontroverted. Plaintiff’s mother, Staci Thompson, testified that she
spoke with Norman the morning after the accident, describing the conversation as
follows:

              Q. What was it that Mr. Norman told you that made you
              believe that personnel at Best Buy had knowledge that
              [plaintiff] was incompetent to drive?

              A. He told me that [plaintiff] was speaking like a foreign
              language. He said that he was out of his head. He was
              speaking gibberish and that they had sent him home because
              he just ‒ he wasn’t even there.

                                      *      *       *

              Q Then his next statement was I was worried about him?

              A. Yes. He said he was worried about him, that he had heard
              [plaintiff] was messed up the night before. He left his cell
              phone there.

        Norman flatly denied this account of the conversation, saying, “I disagree with all
of it.” It is undisputed that Norman was not at the Best Buy store the evening of the
accident. Accepting Staci Thompson’s testimony as true for purposes of summary
judgment, it would establish that Norman told her that someone at Best Buy told him that
plaintiff was “out of his head” and “messed up” at work. This factual scenario would
make the situation arguably closer to the facts in Lett, where the employee was obviously
intoxicated, and we found no duty of the employer to restrain her from leaving her
workplace. Our observations in Lett are applicable here. In this case, defendant, the
employer, did nothing to contribute to plaintiff’s incapacitated state, nor did it “have the
means or the ability to control its employee when [he] made the decision to drive a
vehicle in h[is] condition.” Lett, 60 S.W.3d at 105. Lett is controlling, and mandates the
conclusion that defendant had no legal duty to prevent plaintiff from voluntarily getting
in his car and leaving his workplace under the undisputed circumstances.
                                             14
       Regarding plaintiff’s claim of negligent entrustment, the case of West v. E. Tenn.
Pioneer Oil Co., 172 S.W.3d 545 (Tenn. 2005), is instructive. In West, the Supreme
Court held that “convenience store employees owe[d] a duty of reasonable care to
persons on the roadways when the employees sell gasoline to an obviously intoxicated
driver and/or assist the driver in pumping the gasoline into his vehicle.” Id. at 547. In its
discussion of the tort of negligent entrustment, the Court stated:

              To prevail on such a claim “requires proof that a chattel was
              entrusted to one incompetent to use it with knowledge of the
              incompetence, and that its use was the proximate cause of
              injury or damage to another.” Woodson v. Porter Brown
              Limestone Co., 916 S.W.2d 896, 907 (Tenn. 1996) (citing
              Restatement (Second) of Torts § 390 (1964)); see also Ali v.
              Fisher, 145 S.W.3d 557, 562 (Tenn. 2004). The Restatement
              explains negligent entrustment as follows:

                     One who supplies directly or through a third
                     person a chattel for the use of another whom
                     the supplier knows or has reason to know to be
                     likely because of his youth, inexperience, or
                     otherwise, to use it in a manner involving
                     unreasonable risk of physical harm to himself
                     and others whom the supplier should expect to
                     share in or be endangered by its use, is subject
                     to liability for physical harm resulting to them.

              Restatement (Second) of Torts § 390 (1965).

                                      *      *       *

              Liability for negligent entrustment is founded upon the
              supplier’s direct negligence in entrusting the chattel to an
              incompetent user. . . . A negligent entrustment is committed
              at the moment when control of a chattel is relinquished by an
              entrustor to an incompetent user. Ali, 145 S.W.3d at 564
              (citing Harper v. Churn, 83 S.W.3d 142, 146 (Tenn. Ct. App.
              2001)). Control therefore need only exist at the time of the
              entrustment for a prima facie case of negligent entrustment.



                                             15
Id. at 554, 555 (emphasis added). As the trial court correctly held, the chattel allegedly
“entrusted” to plaintiff was his own vehicle. Defendant never had control of the vehicle,
so it cannot be said that it entrusted the car to plaintiff. Consequently, plaintiff cannot
establish an element of a prima facie case for negligent entrustment, and summary
judgment was correctly granted by the trial court.

         Defendant argues that this appeal should be held to be frivolous. We do not hold
that it is so entirely without merit as to be deemed a frivolous appeal.

                                            V.

       The judgment of the trial court granting defendant summary judgment is affirmed.
Costs on appeal are assessed to the appellant, Christopher Dylan Thompson. The case is
remanded for collection of costs assessed below, in accordance with applicable law.



                                                   _______________________________
                                                   CHARLES D. SUSANO, JR., JUDGE




                                            16
