                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  April 20, 2010 Session

            CHARLES MCBEE v. PATRICIA ANNE GREER, et al.

                    Appeal from the Circuit Court for Knox County
                     No. 1-178-09    Hon. Dale Workman, Judge


                No. E2009-01760-COA-R3-CV - FILED JUNE 8, 2010




Plaintiff was violently attacked as he was attempting to serve process on the defendant in a
divorce case. Plaintiff had been employed by a law firm to serve the divorce complaint on
the defendant in the divorce case and the firm had attached a written statement to the process
"Be forewarned he's an ex-cop with anger issues". Plaintiff's claims for recovery against
defendants were intentional infliction of emotional distress/outrageous conduct, negligent
misrepresentation and negligence. The Trial Court dismissed the action responding to
defendants' Tenn R. Civ. P. 12.02(6), and plaintiff has appealed. On appeal, we hold that
plaintiff failed to state a cause of action for negligent misrepresentation and intentional
infliction of emotional distress/outrageous conduct, but vacate the dismissal of the claim for
negligence against defendants, and remand for further proceedings.


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


H ERSCHEL P ICKENS F RANKS, P.J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY, J., and J OHN W. M CC LARTY, J., joined.


Charles McBee, Knoxville, Tennessee, pro se.

Mark E. Silvey and L. Keith Aldridge, Knoxville, Tennessee, for the appellees, Patricia Ann
Greer, John T. O'Connor, William Petty, Charles Child, and Jack Piper, Jr., individually, and
d/b/a O'Connor, Petty, Child and Piper.
                                           OPINION


       Plaintiff, Charles McBee, acting pro se, filed the Complaint against Patricia Greer,
and the named partners of the law firm O’Conner, Petty, Child, and Piper. The Complaint
avers that plaintiff is a private process server in Knox County, and that Greer is an attorney
with the O’Conner firm. The Complaint avers that Greer called plaintiff on April 18, 2008,
and asked him to serve some papers for her. The Complaint states that Greer stated in the
phone call, “be forewarned, he’s an ex-cop with anger issues.” The Complaint further states
that Greer also said she would be out of the office the rest of the day but would leave the
papers with the receptionist.

        Plaintiff averred that he went to Greer’s office and there was a note on the papers
which said, "Be forewarned this guy is an ex-cop with anger issues”. Plaintiff stated he
asked the receptionist what “anger issues” meant, and she replied that she did not know.
Plaintiff stated that he read the papers and realized that it was a divorce complaint, but it said
nothing about the husband, Randall Leeper, being violent or dangerous, it simply alleged
irreconcilable differences or in the alternative, inappropriate marital conduct. He alleged that
he was also provided with the phone number of Greer’s client in case he needed directions
or help.

        Plaintiff alleged that he proceeded to try to serve the papers later that afternoon, and
experienced trouble locating the house, so he called Greer's client and got directions. He
stated that he went to the house as directed, and saw a man in the front yard and began to tell
him he had papers from the court, and when he looked down at the papers to give him more
information, the defendant in the divorce case, Randall Leeper, attacked him without warning
and he was severely beaten by the defendant.

       He further averred that following his recovery from the assault, he investigated the
defendant's history and determined that he had killed an individual while on duty and there
were three orders of protection issued against him the week prior to the attack.

       Plaintiff alleged that defendants were liable for negligent misrepresentation,
negligence, intentional infliction of emotional distress, and negligent supervision/respondeat
superior. Plaintiff sought both compensatory and punitive damages.

        Defendants filed a Motion to Dismiss pursuant to Tenn. R. Civ. P. 12.02(6), which
asserted that plaintiff had not stated a claim for negligent misrepresentation, because he had
not shown that he was given any false information, and had not shown that he justifiably
relied on any information he was given.

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       Defendants also asserted that plaintiff failed to state a claim of negligence, in that they
only had a duty to use reasonable care to warn plaintiff of Leeper’s anger management issues,
which plaintiff admitted they did. Defendants asserted that there was no reckless conduct
shown on their part to support a claim for intentional infliction of emotional distress.

        At a hearing on the Motion, the Court entered an Order of Dismissal, stating that after
considering the pleadings and the arguments of defense counsel and the pro se plaintiff, and
viewing the factual allegations in the Complaint as true and in the light most favorable to
plaintiff, the Court found that the Complaint should be dismissed and granted defendants’
motion.

      Plaintiff has appealed insisting the Trial Court erred in granting defendants' Motion
to Dismiss.

      The standard of review of a trial court’s grant of a Tenn. R. Civ. P. 12 motion has
been explained by the Supreme Court as follows:

       A Rule 12.02(6) motion to dismiss only seeks to determine whether the pleadings
       state a claim upon which relief can be granted. Such a motion challenges the legal
       sufficiency of the complaint, not the strength of the plaintiff's proof, and, therefore,
       matters outside the pleadings should not be considered in deciding whether to grant
       the motion. In reviewing a motion to dismiss, the appellate court must construe the
       complaint liberally, presuming all factual allegations to be true and giving the plaintiff
       the benefit of all reasonable inferences. It is well-settled that a complaint should not
       be dismissed for failure to state a claim unless it appears that the plaintiff can prove
       no set of facts in support of his or her claim that would warrant relief. Great
       specificity in the pleadings is ordinarily not required to survive a motion to dismiss;
       it is enough that the complaint set forth “a short and plain statement of the claim
       showing that the pleader is entitled to relief.” We review the trial court's legal
       conclusions de novo without giving any presumption of correctness to those
       conclusions.

Trau-Med of America, Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696-697 (Tenn.
2002)(citations omitted).

        In this case, plaintiff's allegations of fact must be accepted as true, as he asserted he
was given the divorce papers to serve on the defendant and was told both orally and in
writing to “be forewarned” because Leeper was “an ex-cop with anger issues” by Ms. Greer.
Plaintiff was also given the phone number of the client to contact for “help or directions”.

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Plaintiff proceeded to serve the papers and the defendant attacked him, without warning, and
injured him, threatening to kill him. Plaintiff later learned that Leeper had a violent history,
and he averred that Ms. Greer knew this.

       Plaintiff's claim of intentional infliction of emotional distress/outrageous conduct,
requires a showing that 1) Greer acted intentionally or recklessly, 2) her conduct was so
outrageous that it is not tolerated by civilized society, and 3) her conduct resulted in serious
mental injury to plaintiff. See, e.g., Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). In
Bain, the Tennessee Supreme Court held that it is not an easy burden to meet the essential
elements of outrageous conduct and stated that it “has adopted and applied the high threshold
standard described in the Restatement (Second) of Torts.” Id. at 622.

       The Restatement (Second) of Torts, § 46, comment d (1965), states in pertinent part:

       The cases thus far decided have found liability only where the defendant's conduct has
       been extreme and outrageous. It has not been enough that the defendant has acted
       with an intent which is tortious or even criminal, or that he intended to inflict
       emotional distress, or even that his conduct has been characterized by “malice,” or a
       degree of aggravation which would entitle the plaintiff to punitive damages for
       another tort. Liability has been found only where the conduct has been so outrageous
       in character, and so extreme in degree as to go beyond all bounds of decency, and to
       be regarded as atrocious, and utterly intolerable in a civilized community. Generally,
       the case is one in which the recitation of the facts to an average member of the
       community would arouse his resentment against the actor, and lead him to exclaim,
       “Outrageous!”

Bain, 936 S.W.2d at 623.

       Moreover, “recovery for intentional infliction of emotional distress is limited to
mental injury which is so severe that no reasonable person would be expected to endure it.”
Arnett v. Domino's Pizza I, LLC, 124 S.W.3d 529, 540 (Tenn. Ct. App. 2003).

        In this case, there was no conduct charged to the defendants that would be
characterized as “atrocious” and “utterly intolerable in a civilized community.” See Bain.
As it is “for the trial court to determine, in the first instance, whether a defendant's conduct
may reasonably be regarded as so extreme and outrageous as to permit recovery”
(Restatement (Second) of Torts, § 46, comment h), we hold the Trial Court in this case
properly dismissed plaintiff’s claim of outrageous conduct.

       The Trial Court dismissed plaintiff’s claim of negligent misrepresentation. In

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Robinson v. Omer, 952 S.W.2d 423, 427 (Tenn. 1997), the Supreme Court discussed the
essential elements of a negligent misrepresentation claim as follows:

       Tennessee has adopted Section 552 of the Restatement (Second) of Torts “as the
       guiding principle in negligent misrepresentation actions against other professionals
       and business persons.” Section 552 provides, in pertinent part, as follows:

              (1) One who, in the course of his business, profession or employment, or in
              any other transaction in which he has a pecuniary interest, supplies false
              information for the guidance of others in their business transactions, is subject
              to liability for pecuniary loss caused to them by their justifiable reliance upon
              the information, if he fails to exercise reasonable care or competence in
              obtaining or communicating the information.

        In this case, it is not alleged that any false information was supplied to plaintiff upon
which he justifiably relied. In fact, plaintiff admits that he was warned the defendant was
an “ex-cop with anger issues” (but argues that he did not understand what that meant). The
information given to plaintiff was not a misrepresentation, and he proceeded to serve the
papers without giving any further consideration to the warning. However, plaintiff argues
that an omission where information should be given is the same as giving false information,
but plaintiff was told to be forewarned. We conclude plaintiff failed to state a claim for
negligent misrepresentation.

       Next, plaintiff’s negligence claim requires a showing of: (1) a duty of care owed by
the defendant to the plaintiff; (2) conduct by the defendant falling below the standard of care
amounting to a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5)
proximate or legal cause. Hale v. Ostrow, 166 S.W.3d 713 (Tenn. 2005). The Supreme Court
further explained that:

       The existence of a duty is a question of law. To determine whether a particular
       defendant owes a duty of care to a particular plaintiff, we balance the foreseeability
       and gravity of the potential harm against the feasibility and availability of alternatives
       that would have prevented the harm. “Although all the balancing considerations are
       important, the foreseeability prong is paramount because ‘[f]oreseeability is the test
       of negligence.’ ”

Id. (citations omitted).

        In this case, the defendants owed plaintiff a duty to warn him, as they concede in their
brief, because there was a foreseeable risk of potential harm. They argue, however, that the

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warning was adequate. In this regard plaintiff alleged that three orders of protection were
issued against Randall Leeper one week before the attack occurred, and that Randall Leeper
had been convicted of an assault by domestic violence on Sandra Leeper. He further averred
that attorney Greer was attorney of record in fourteen cases in Knox County Chancery,
Probate and Fourth Circuit where (Randall) Leeper was a party requiring service of process
upon him. This plaintiff charges that defendant Greer knew, or should have known and that
it was foreseeable that Randall Leeper would attack him upon attempting service of process.
The foregoing averments of fact must be accepted as true on this Motion of Dismiss, and
construing these complaints liberally, we cannot say the plaintiff cannot prove a set of facts
in support of his claim that would warrant relief against defendant Greer, as the Supreme
Court has taught in Trau-Med of America, Inc., v. Allstate Ins. Co. Accordingly, we vacate
the Judgment of the Trial Court in dismissing the claim of negligence against defendants.
We pretermit the remaining issues raised by the appellant.

       We affirm the Judgment of the Trial Court in part, vacate in part, and remand for
further proceedings consistent with this Opinion.

       The cost of the appeal is assessed one-half to plaintiff and one-half to defendants.




                                                   _________________________________
                                                   HERSCHEL PICKENS FRANKS, P.J.




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