Dana Scott v. Edward Sellers ( 2000 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
November 21, 2000 Session
DANA HOPE DAVIS THURMON (SCOTT), INDIVIDUALLY AND AS
SURVIVING NATURAL PARENT OF DALTON THURMON, A MINOR ,
ET AL. v. EDWARD SELLERS, ET AL.
Direct Appeal from the Circuit Court for Shelby County
No. 83012 T.D. George H. Brown, Jr., Judge
No. W2000-00422-COA-R3-CV - Filed February 16, 2001
This is a personal injury and wrongful death case arising from a collision between a pickup truck and
a tractor trailer truck. The five-year-old son of plaintiffs Dana Scott and Shane Thurmon died as a
result of the accident. The driver of the car was an “on call” employee of his father’s business at the
time. The plaintiffs sued the driver of the car and his father, alleging vicarious liability under the
doctrine of respondeat superior and under the family purpose doctrine. Plaintiff Dana Scott also sued
for consortium-type damages for the loss of her son. Although referring to it as a directed verdict,
the trial court, pursuant to Rule 41.02 of the Tennessee Rules of Civil Procedure, entered an
involuntary dismissal in favor of the defendants on the vicarious liability issue, under both
respondeat superior and the family purpose doctrine, and on the loss of filial consortium claim. The
trial court awarded damages, inter alia, to Dana Scott for the wrongful death of her son and to Carl
Fuhs for personal injuries based upon his negligent infliction of emotional distress claim. We hold
the following: (1) employer is not vicariously liable under the doctrine of respondeat superior for acts
or omissions of “on call” employee when employee is not acting within the course and scope of his
employment; (2) the requirements of the family purpose doctrine were met and defendant Donald
Sellers, Sr. is vicariously liable under this theory; (3) parents may recover filial consortium damages
in wrongful death actions for the death of their child; (4) the trial court’s wrongful death award to
Dana Scott was supported by the evidence; (5) Carl Fuhs sufficiently established a claim for
negligent infliction of emotional distress; and (6) the personal injury award to Carl Fuhs is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court of Shelby County
Affirmed in part; Reversed in part; and Remanded
DAVID R. FARMER , J., delivered the opinion of the court, in which HOLLY K. LILLARD , J. and
HEWITT P. TOMLIN , JR., SP . J., joined.
Tim Edwards and James F. Horner, Memphis, Tennessee, for the Appellant, Dana Hope Davis
Thurmon Scott.
Charles Abbott, Memphis, Tennessee, for the Appellants, Shane Thurmon and Tiffany Thurmon.
Mark Ledbetter, Memphis, Tennessee, for the Appellant, Carl J. Fuhs.
Robert L. Moore and John H. Dotson, Memphis, Tennessee, for the Appellees, Edward D. Sellers
and Donald Sellers.
OPINION
Shortly before noon on September 28, 1996, Donald Edward Sellers, Jr. (Eddie),1 with
passengers Shane Thurmon (Mr. Thurmon) and his five-year-old son, Dalton Thurmon (Dalton), was
traveling northbound on Crumpler Road in Shelby County in a 1995 Ford F-150 pickup truck when
he approached the intersection of Crumpler Road and Holmes Road. At that time, there were stop
signs located at the intersection of Crumpler Road and Holmes Road for traffic proceeding both
northbound and southbound on Crumpler Road. Eddie stopped at the stop sign, but then proceeded
into the intersection directly into the path of an eighteen-wheeler driven by Carl J. Fuhs (Mr. Fuhs)
which was headed westbound on Holmes Road. Mr. Fuhs’ semi collided with the pickup being
driven by Eddie on its passenger side, causing the pickup to flip numerous times before it settled off
of the road. The impact injured Mr. Thurmon and fatally injured Dalton. Eddie admits fault for the
accident.
The 1995 pickup truck driven by Eddie was leased by Eddie’s father, Donald E. Sellers, Sr.
(Mr. Sellers) through Mr. Sellers’ business, Donnie’s Deli and Amoco. The insurance, gas, and
license for the pickup truck was paid through Donnie’s Deli and Amoco. Eddie, however, had
exclusive control over the pickup truck, using it for errands associated with his business, Cheap
Smokes, his father’s business, and for personal activities outside of the scope of either of these
businesses.
Eddie was a salaried employee of Donnie’s Deli and Amoco. He was provided with a cell
phone whereby he could be reached in order to run errands for Donnie’s Deli and Amoco during the
hours of 6:00 a.m. to 11:00 p.m., seven days a week. On the day of the accident, Eddie and Mr.
Thurmon were on their way to a golf shop in Memphis so that Mr. Thurmon could look for a set of
golf clubs. Eddie was not running any errands for Donnie’s Deli and Amoco at the time of the
accident; however, Eddie was “on call” and had with him the cell phone provided by Donnie’s Deli
and Amoco.
The driver of the eighteen-wheeler, Mr. Fuhs, was not related to, nor did he know, any of the
individuals in the pickup truck at the time of the accident. Mr. Fuhs witnessed, from a few feet
away, Dalton’s body slumped over the back seat of the pickup truck and hanging halfway out of the
truck’s back window. A short while after the accident, Mr. Fuhs went to the doctor complaining of
1
W e refer to Donald Ed ward Sellers, Jr. by his given name for purposes of clarity only, and it is not intended
to be disres pectful.
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headaches and neck, back, and left knee pain. Mr. Fuhs also sought treatment from a psychologist
for anxiety, sleeping problems, and flashbacks relating to the accident. Mr. Fuhs was treated for his
medical problems and was diagnosed as having a permanent impairment of 12% to the body as a
whole from his physical injuries and of 55-75% to the body as a whole from his mental distress.
Dalton’s mother, Dana Hope Davis Thurmon Scott (Mrs. Scott), filed a complaint for
wrongful death against Mr. Sellers, Eddie, Mr. Fuhs and his employer at the time, Printco
Enterprises, and Shelby County. She later amended her complaint to allege liability against Mr.
Sellers based upon the family purpose doctrine. Mrs. Scott amended her complaint a second time
to include a claim for loss of consortium. Mr. Thurmon and his present wife filed a complaint
against the same defendants for wrongful death, loss of consortium on behalf of Mrs. Thurmon, and
damages he sustained in the accident. Mr. Fuhs filed a complaint against Mr. Sellers, d/b/a Donnie’s
Amoco, Eddie, d/b/a Cheap Smokes, and Shelby County for personal injury and negligent infliction
of emotional distress. Prior to trial, all defendants except Mr. Sellers and Eddie were dismissed from
the actions filed against them. The three cases were consolidated for trial and were tried before the
court, sitting without a jury.
At the close of all proof, the Sellers moved for an involuntary dismissal2 as to Mr. Sellers on
the ground that the plaintiffs had failed to make their case on the claim of vicarious liability. The
trial court granted the motion and dismissed Mr. Sellers, finding that Eddie was not using the pickup
truck in furtherance of the purpose and with the permission of Mr. Sellers. The Sellers also moved
for an involuntary dismissal on Mrs. Scott’s claim for loss of consortium of Dalton. The court
granted this motion, holding that Jordan v. Baptist Three Rivers Hospital, 984 S.W.2d 593 (Tenn.
1999), did not embrace a claim by a parent for the loss of consortium of a deceased child. Lastly,
the Sellers moved for an involuntary dismissal on Mr. Fuhs’ claim for negligent infliction of
emotional distress, which the trial court denied. The trial court awarded damages to each of the
plaintiffs in the following amounts:
1. To Mrs. Scott on her wrongful death claim $700,000
2. To Mr. Thurmon for his personal injuries $850,000
3. To Mrs. Thurmon for loss of consortium $25,000
4. To Mr. Fuhs for his physical and mental injuries $275,000
Eddie has appealed the verdict as to Mr. Fuhs, and Mrs. Scott and Mr. Thurmon have
appealed their respective verdicts. Upon the Sellers’ motion, this Court has ordered the appeals
consolidated. The issues on appeal, as we perceive them, are as follows:
2
Although referred to as a “directed verdict” in the record, the Sellers’ motion, in essence, was for an
involuntary dismissal pursuant to Rule 41.02 of the Tennessee Rules of Civil Procedure because this matter was heard
before the court sitting without a jury. Two procedural devices are available during trial to test the sufficiency of
evidence. One is a motion fo r involu ntary dismissal, which is used in nonjury actions. The other is a motion for a
directed verdict, used in jury trials pursuant to R ule 50.01 of the Ten nessee Ru les of Civil Pro cedure. See Pivnick, Tenn.
Cir. Ct. Pro c. (2000 ed.) §§ 2 4-17, -18 ; Smith v. Inman Realty Co., 846 S.W.2d 819 , 821 (Tenn. Ct. App. 1992).
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1. Whether the trial court erred in ruling that Mr. Sellers was not vicariously
liable for the acts of Eddie Sellers under the doctrine of respondeat superior
and under the family purpose doctrine.
2. Whether the trial court erred in dismissing Mrs. Scott’s claim for loss of
consortium.
3. Whether the amount of the trial court’s award for Mrs. Scott for the wrongful
death of Dalton Thurmon was against the preponderance of the evidence.
4. Whether the trial court erred in denying the Sellers’ motion to dismiss Mr.
Fuhs’ claims for negligent infliction of emotional distress.
5. Whether the trial court’s award of damages to Mr. Fuhs was supported by a
preponderance of the evidence.
Since this matter was tried before the court sitting without a jury, our review of the trial
court’s findings of fact is de novo with a presumption of correctness, unless the preponderance of
the evidence is otherwise. Tenn. R. App. P. 13(d). As the issues regard questions of law, our review
is de novo with no presumption of correctness. See Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.
1997); Tenn. R. App. P. 13(d).
Respondeat Superior
The appellants in this action, Mrs. Scott, Mr. and Mrs. Thurmon, and Mr. Fuhs, state two
bases for alleging that Mr. Sellers is vicariously liable for the acts of Eddie Sellers under the doctrine
of respondeat superior. The two bases are the presumption of liability created by sections 55-10-311
and 55-10-312 of the Tennessee Code and the fact that Eddie Sellers was an “on call” employee of
Donnie’s Deli and Amoco at the time of the accident.
In order to impose liability under respondeat superior, it is necessary to show that the
operator of a vehicle causing injury was, at the time of the accident, acting as a servant or employee
of the owner, was engaged in the employer’s business, and was acting within the scope of his
employment. See Hamrick v. Spring City Motor Co., 708 S.W.2d 383, 386 (Tenn. 1986);
Tennessee Farmers Mut. Ins. Co. v. American Mut. Liab. Co., 840 S.W.2d 933, 937 (Tenn. Ct.
App. 1992). It is undisputed that Eddie was an employee of Donnie’s Deli and Amoco. Thus, the
pivotal issue is whether Eddie was acting within the course and scope of his employment.
Generally, the phrase “within the course and scope of employment” refers to acts of an
employee committed while engaged in the service of the employer or while about the employer’s
business. See generally Tennessee Farmers Mut. Ins. Co., 840 S.W.2d at 937-38. However,
sections 55-10-311 and 55-10-312 of the Tennessee Code provide that proof of ownership and
registration of a motor vehicle constitutes prima facie evidence that the vehicle was being operated
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for the vehicle owner’s use and benefit and within the course and scope of employment.3 The prima
facie case in these two code sections may be overcome by uncontradicted evidence to the contrary
coming from witnesses whose credibility is not in issue. See Haggard v. Jim Clayton Motors, Inc.,
393 S.W.2d 292, 294 (Tenn. 1965). If the prima facie case is overcome by evidence so strong that
reasonable minds could not differ, then a directed verdict for the owner may be proper. See
Hamrick, 708 S.W.2d at 387.
Generally, the issue of scope of employment is a question of fact, but it becomes a question
of law when the facts are undisputed and no conflicting inferences are possible. See Tennessee
Farmers Mut. Ins. Co., 840 S.W.2d at 936-37. In cases involving a motion for involuntary
dismissal, the trial court “must impartially weigh and evaluate the evidence as it would after the
presentation of all the evidence” and it must grant such a motion if the plaintiff has failed to make
out a prima facie case. Smith v. Inman Realty Co., 846 S.W.2d 819, 822 (Tenn. Ct. App. 1992).
On review, we need only determine whether the evidence makes out a prima facie case. See id.At trial, the certificate of title for the 1995 pickup truck was introduced, which showed the
owner of the vehicle as FMCC % Donald E. Sellers.4 Testimony deduced at trial established that
the Donald E. Sellers named as owner of the truck was Mr. Sellers, Eddie’s father. Based
upon this evidence alone, a prima facie case was established under sections 55-10-311 and
55-10-312 of the Tennessee Code. Additionally, the plaintiffs established that the pickup truck
driven by Eddie on the day of the accident was leased through Donnie’s Deli and Amoco and that
3
Section 55-10-311(a) of the Tennessee Code states, in relevant part that
[i]n all actions for injury to persons . . . caused by the negligent op eration or use of any automobile, auto truck,
motorcycle, or other motor propelled vehicle within this state, proof of ownership of such vehicle shall be prima
facie evidence that the vehicle at the time of the cause of action sued on was being operated and use d with
authority, consent and knowledge of the owner in the very transaction out of which the injury or cause of action
arose, and such proof of ownership likewise shall be prima facie evidence that the vehicle was then and there
being operated by the owner, or by the owner’s servant, for the owner’s use and bene fit and within the course
and scop e of the servan t’s employm ent.
Tenn. Code Ann. § 55-10-31 1(a) (1999).
Section 55-10-312 of the Tennessee Code provides that
[p]roof of the registration of th e motor-p ropelled v ehicle in the nam e of any perso n shall be prim a facie
evidence of ownership of the motor prope lled vehicle by the person in whose name the vehicle is registered;
and such proof of registration shall likewise be prima facie evidence that the vehicle was then and there being
operated by the owne r or by the ow ner’s servant for the owner’s use and benefit and within the course and scope
of the servant’s e mployme nt.
Tenn. Code Ann. § 55-10-31 2 (1999).
4
Mr. Sellers leased the 1995 Ford F-150 pickup truck through Ford Mo tor Credit Comp any for Eddie Sellers’
use.
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the insurance, gas, and license for the pickup was paid through Mr. Sellers’ business. However,
uncontradicted countervailing evidence exists in the record. Mr. Thurmon, as well as Eddie, testified
that the purpose of the trip was to drop off some golf clubs at Mr. Thurmon’s father’s house and then
to go to Memphis to look for golf clubs for Dalton. Furthermore, Mr. Thurmon testified that once
Eddie came to get them, they never stopped by Donnie’s Deli and Amoco before going about their
personal business.
Although the plaintiffs in the instant case were able to establish a prima facie case under
sections 55-10-311 and 55-10-312 of the Tennessee Code, the prima facie case was sufficiently
overcome by the uncontradicted testimony of Mr. Thurmon and Eddie which established that Eddie
Sellers was using the pickup truck solely for his own personal endeavors. Accordingly, we find that
Mr. Sellers cannot be held liable under the theory of respondeat superior as it is based on sections
55-10-311 and 55-10-312 of the Tennessee Code. Thus, we affirm the trial court’s ruling on this
issue.
The plaintiffs next argue liability under the doctrine of respondeat superior based upon
Eddie’s being an “on call” employee of Mr. Sellers’ business, Donnie’s Deli and Amoco. This
scenario presents an issue of first impression in Tennessee. Thus, for guidance, we shall consider
the reasoning and analysis of similar cases from courts in sister jurisdictions.
In the cases dealing with the issue of vicarious liability for an “on call” employee that this
Court reviewed, the underlying principle is that the mere fact that an employee is “on call” does not
automatically give rise to employer liability.5 Rather, an employee’s “on call” status gives rise to
a question of fact as to whether the employee was acting within the scope of his employment at the
5
See Evans v. Dixie F asteners, 290 S.E.2d 172, 174 (Ga. Ct. App. 1982) (Being on call 24 hours a day does
not necessarily me an emplo yee was in the service of his employer when collision occurred); Herndon v. Neal, 424 So.
2d 1180, 1182 (La. Ct. App. 198 2) (An informal “on call” situation does not mean the employee is within the course and
scope of his employment every secon d of every d ay); Clickner v . City of Lo well, 663 N.E.2d 852, 855 (M ass. 1996) (The
mere fact of being on call does not place employees within the scope of their emplo yment); Medina v. Fuller, 971 P.2d
851, 855 (N .M. Ct. Ap p. 1998 ) (The test fo r liability for an on c all employee asks exactly what the employee was doing
at the time of the injury-producing accident); Ehlenfield v. State, 404 N .Y.S.2d 175 (19 78), appeal denied, 380 N.E.2d
336 (The fact that an employee is constantly “on call” is not sufficient to cast his emplo yer in liability); Hantk e v. Harr is
Mach. Works, 54 P.2d 293, 296 (Or. 1936) (The mere fact that an employee is on call does not render his employer
liable); Melnick v. Neuman, 19 8 1 W L 139201, at ***3 (Wis. C t. App. Sep t. 22, 198 1) (The fact that an emp loyee is
on call is merely one factor to be considered by the trier of fact in determining whether an employee is within or outside
the scope o f his employm ent).
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time of the accident. See Gullett by Gullett v. Smith, 637 N.E.2d 172, 175 (Ind. Ct. App. 1994).6
As the court reasoned in Le Elder v. Rice, 26 Cal. Rptr. 2d 749 (1994):
Public policy would be ill-served by a rule establishing 24-hour employer
liability for on-call employees, regardless of the nature of the employee’s activities
at the time of an accident. Respondeat superior is imposed for three policy reasons:
“(1) to prevent recurrence of the tortious conduct; (2) to give greater assurance of
compensation for the victim; and (3) to ensure that the victim’s losses will be
equitably borne by those who benefit from the enterprise that gave rise to the injury.”
[citations omitted] None of these goals would be legitimately accomplished by a rule
establishing automatic 24-hour employer liability for 24-hour on-call employees.
First, employer liability would not prevent a recurrence of the tortious conduct
because an employer has no right to control the purely personal conduct of an
employee. Second, although the deep pocket of an employer might give greater
assurance of compensation for the victim, that desired economic end would be
achieved inequitably because the victim’s losses would not be borne by the person
who benefitted from the injury-producing activity. Modern technology has changed
the means by which we communicate. Beepers, pagers, facsimile machines and
cellular phones keep us literally at a fingertip’s distance from one another. But on-
call accessibility or availability of an employee does not transform his or her private
activity into company business. The first question must always focus on scope of
employment. Where the injury-producing activity is beyond that scope, no totality
of other circumstances will result in respondeat superior liability.
Id. at 753. See also Pruden v. United States, 399 F. Supp. 22, 27 (E.D.N.C. 1973) (“It would be
grossly unfair to hold an employer liable for all actions of his employees while they were off duty
and on personal missions, even if they were subject to call, unless of course they were called or were
performing a specific service for their employer while on call.”).
In Johnson v. Dufrene, 433 So. 2d 1109 (La. Ct. App. 1983), the Louisiana Court of Appeals
instructed that, in situations where an injury is caused by an employee’s negligence while operating
his employer’s vehicle, the cases must be decided upon their own facts with important consideration
given to whether, at the time of the accident, the use of the vehicle was benefitting the employer, the
employee was subject to the employer’s control, and the use of the vehicle was authorized by the
employer. See id. at 1112. Furthermore, in Thomas v. Travelers Insurance Company, 423 S.W.2d
359 (Tex. App. 1968), the Texas Civil Court of Appeals held that an “on call” employee must be
6
See also Pruden v. United States, 399 F. Supp. 22, 25, 26 (E.D.N.C. 1973), aff’d, 511 F.2d 1398 (4th Cir.
1975) (Two factors are key in situations involving “on call” employees, namely, the amount of control the employer has
over the employee at the time of the act and whether the employer’s business was being substantially furthered at the time
of the acciden t); Conne ll v. Carl’s Air Conditioning, 634 P.2d 673, 674-75 (Nev. 1981) (holding that the employer was
not liable for neglige nce of 24 -hour “on ca ll” employee who was not called for duty and whose after hour activities were
not restricted, despite fact that employer was respo nsible for payments and maintenance of employee’s personal car,
because employee was not acting within the course and scope of his employment).
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engaged in or about the furtherance of the business of his employer in order to be within the scope
of his employment and thus be able to cast liability upon his employer. See id. at 360.
The law in Tennessee is clear that “when a servant deviates from his line of duty and engages
in a mission of his own or for some third person, the master cannot be held [liable] under the rule
of respondeat superior.” Craig v. Gentry, 792 S.W.2d 77, 79 (Tenn. Ct. App. 1990). We now
extend this line of reasoning to situations involving “on call” employees. In determining whether
an “on call” employee is acting within the course and scope of his employment, thus casting liability
on his employer, we find the following factors helpful:
1. Whether, at the time of the accident, the employee’s use of the vehicle
benefitted the employer;
2. Whether the employee was subject to the employer’s control at the time of
the accident;
3. Whether the employee’s after-hour activities were restricted while on call;
4. Whether the use of the vehicle at the time of the accident was authorized by
the employer; and
5. What the employee’s primary reason for using the vehicle was at the time of
the injury-producing accident.
This list is not meant to be exclusive but is rather provided for guidance in future cases. It should
be remembered, however, that the primary focus should be on whether the use of the vehicle at the
time of the collision was within the course and scope of employment, and, as the Johnson court
stated, each case should be determined upon its unique facts.
In the instant case, Eddie Sellers was driving the Ford F-150 pickup truck for the sole
purpose of going to look at golf clubs with Mr. Thurmon and Dalton. At the time of the accident,
he had not been called to perform a service for Donnie’s Deli and Amoco, nor was he furthering the
business of Donnie’s Deli and Amoco. Accordingly, Eddie Sellers’ use of the pickup truck at the
time of the accident did not, in any way, benefit Mr. Sellers.
Mr. Sellers, as well as Eddie, testified that Eddie had complete control over the use of the
pickup truck. Eddie did not have to ask permission to use the vehicle, nor did Mr. Sellers restrict
Eddie’s use of the truck in any manner. Donnie’s Deli and Amoco did not put restrictions on the
distances that could be driven nor did it limit the scope of what the truck could be used for.
Additionally, Eddie was not restricted in what he could do while “on call.” Rather, Mr. Sellers and
Eddie testified that Eddie was free to engage in personal activities while he was on call at Donnie’s
Deli and Amoco. Based on this uncontraverted evidence, this Court finds that Eddie Sellers and his
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use of the pickup truck were not subject to the control of Mr. Sellers d/b/a Donnie’s Deli and Amoco
at the time of the accident.
For all practical purposes, the Ford F-150 pickup truck leased by Mr. Sellers was Eddie’s for
use by him in whatever manner he saw fit. Mr. Sellers did not require that Eddie use the vehicle
solely to carry out the needs of Donnie’s Deli and Amoco. Rather, Mr. Sellers intended that Eddie
use the truck as his own personal vehicle, whether that meant using the pickup for personal
endeavors or in furtherance of the business of Donnie’s Deli and Amoco. Because Mr. Sellers was
Eddie’s father as well as his employer at the time of this accident, it is difficult for this Court to say
with certainty that Eddie’s use of the pickup truck was authorized by Mr. Sellers as Eddie’s
employer. Mr. Sellers indeed testified that he did not restrict Eddie’s use of the pickup truck.
Additionally, the evidence in the record demonstrates that Eddie was not restricted in his activities
while he was “on call” because he could always be reached by the cell phone provided by Donnie’s
Deli and Amoco. However, does that reasoning support a determination that Eddie’s use of the
pickup truck for personal endeavors during his “on call” hours was, in fact, authorized by Donnie’s
Deli and Amoco? Based upon these facts, we determine that while Eddie’s use of the pickup truck
for personal endeavors was authorized, this particular trip was not specifically authorized.
In Tennessee Farmers Mutual Insurance Company, 840 S.W.2d at 938-39, this Court
analyzed when a trip could be considered within the scope of employment, and it determined that
if the trip would have taken place, regardless of the business reasons, then the trip is personal in
nature and is not within the scope of employment. In contrast, if the trip would require the employer
to send another employee to perform the same function if the trip had not been made or if the trip
is authorized by an employer for business purposes and the employee has not deviated therefrom,
then the trip is business in nature and is within the scope of employment. Here, Eddie’s trip was
solely for personal reasons - going to look at golf clubs with Mr. Thurmon and Dalton. As such, his
trip was personal in nature and outside of the scope of his employment. Based upon the foregoing,
it is the opinion of this court that, as a matter of law, Mr. Sellers is not vicariously liable for the act
of Eddie Sellers because the injury-producing activity was beyond the scope of Eddie’s employment.
To hold otherwise would extend the doctrine of respondeat superior to unimaginable and inequitable
lengths.
Family Purpose Doctrine
The appellants in this action allege that Mr. Sellers is vicariously liable for the acts of Eddie
Sellers based upon the family purpose doctrine because Mr. Sellers, as head of the Sellers’
household, maintained the pickup in question for the purpose of providing pleasure or comfort for
his family and that Eddie Sellers was using the pickup at the time of the accident in furtherance of
that purpose and with the permission of Mr. Sellers. The family purpose doctrine is a court-created
legal fiction by which the owner of an automobile is held vicariously liable when the car is
negligently driven by a member of the immediate household. The fiction is predicated on the
assumption that the driver is implementing a “family purpose,” even if the driver is only using the
automobile for his own pleasure or convenience. The car must be driven with the permission of the
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owner, but this may be inferred from very general circumstances. The family purpose doctrine was
adopted by the Tennessee Supreme Court in King v. Smythe, 204 S.W. 296 (Tenn. 1918), and was
recently addressed in Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996).
In order for the family purpose doctrine to apply in Tennessee, two requirements must be
met, namely, that the head of the household maintains the vehicle for the purpose of providing
pleasure or comfort to his or her family and that the driver was using the vehicle at the time of the
injury-producing accident in furtherance of that purpose and with either the express or implied
permission of the owner. See Camper, 915 S.W.2d at 447. The true test is whether the driver was
engaged in the owner’s business at the time of accident, with business here meaning the furnishing
of pleasure to the owner’s family. See Scates v. Sandefer, 44 S.W.2d 310, 311-12 (Tenn. 1931).
The family purpose doctrine applies to adults as well as to minors and is imposed as a matter of
public policy. See Scates, 44 S.W.2d at 311; Camper, 915 S.W.2d at 448.
King v. Smythe, 204 S.W. 296 (Tenn. 1918), is analogous to and is controlling of the instant
action. In King, a twenty-four year old son was involved in an accident while driving the family’s
vehicle which was owned and maintained by the father. The son was a medical student at the time
and was residing in his father’s residence rent-free. The son had the liberty to use the car, without
having to ask for specific permission, as long as the vehicle was not needed by the father. At the
time of the accident, the son was using the vehicle for his own personal pleasure. See id. at 296-97.
Imposing liability on the father under the family purpose doctrine, the King court reasoned that “[i]f
a father purchases an automobile for the pleasure and entertainment of his family, and . . . gives his
adult son, who is a member of his family, permission to use it for pleasure, except when needed by
the father, it would seem perfectly clear that the son is in the furtherance of this purpose of the father
while driving the car for his own pleasure.” Id. at 298.
The trial court ruled for Mr. Sellers on this issue, finding that Eddie was not using the pickup
in furtherance of the purpose and with the permission of Mr. Sellers. (TR, V5, p.207). On appeal,
the Sellers assert this same argument, contending that Eddie Sellers was carrying out the business
of Mr. Thurmon rather than that of his father. We disagree. In Scates v. Sandefer, the Tennessee
Supreme Court had the responsibility of determining whether the driver was about the vehicle
owner’s business for purposes of liability under the family purpose doctrine. We believe a
discussion of that case is warranted here.
In Scates, a nineteen year old son took a job with a feed company, and, as part of his written
employment contract, he was required to furnish his own vehicle to further his duties as a salesman.
His father, the vehicle owner, gave his son his car to use in the execution of his employment
contract. The son lived with the father, and when the car was not being used in the son’s business,
it was used by family members for pleasure. On the day of the accident, the son’s employer required
the son to use the car to drive the employer’s prospective customers to the country. It was during
the course of this trip that the accident occurred. Based upon these facts, the supreme court held that
the father was not liable under the family purpose doctrine because the vehicle “was not being
operated in the business of the father nor for the pleasure and comfort of himself or family, but solely
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in behalf of the feed company, and in strict compliance with the contract made between the parties.”
Scates, 44 S.W.2d at 311. The facts of the instant case are readily distinguishable from the facts in
Scates. Here, Eddie Sellers was using the vehicle on the day of the accident, for a purely personal
purpose - driving himself and his friends, Mr. Thurmon and Dalton, to Memphis to look at golf
clubs. Mr. Thurmon did not employ Eddie to drive him to Memphis, nor was Eddie bound by a
written contract to drive Mr. Thurmon anywhere he desired to go as was the defendant in the Scates
case. Even though Eddie was utilizing the pickup for the desires of Mr. Thurmon, the distinction
lies with the fact that Eddie was not required to use the pickup to take Mr. Thurmon and his son to
Memphis. Instead, when Eddie and Mr. Thurmon discussed who would drive, Eddie persuaded Mr.
Thurmon that he would drive. Based upon this, it is clear that, by driving the pickup truck, Eddie
was furthering his own desire - that of driving and accompanying his friends on their quest to find
golf clubs.
Because the trial court ruled on this issue in favor of the Sellers, we need only determine
whether the evidence makes out a prima facie case. See Smith, 846 S.W.2d at 822.
The evidence introduced at trial was uncontradicted. Mr. Sellers established himself as the
head of the Sellers’ household. He further testified that he leased the pickup truck for use by Eddie
in the business of Donnie’s Deli and Amoco, as well as for Eddie’s personal use. Mr. Sellers did not
restrict Eddie’s use of the vehicle, and Eddie did not have to ask for specific permission to use the
vehicle when he desired. In fact, Eddie had the liberty to use the vehicle whenever he desired. It is
clear, based upon the evidence in the record, that Eddie was using the pickup truck at the time of the
accident with implied permission and in furtherance of his own pleasure, which in turn furthered the
purpose for which Mr. Sellers’ leased the vehicle. Thus, the requirements of the family purpose
doctrine are met and said doctrine applies to this case. Accordingly, we reverse the trial court’s
holding as it pertains to this issue and conclude that Mr. Sellers is vicariously liable for the acts of
Eddie Sellers based upon the family purpose doctrine. This cause is remanded to the trial court for
entry of judgment against Mr. Sellers in accordance with this opinion.
Loss of Consortium
Mrs. Scott filed her wrongful death action giving rise to this appeal in November of 1996,
less than two months after the death of her son, Dalton. Mrs. Scott amended her complaint in
February of 1999 to include an additional claim for loss of consortium under Tennessee’s wrongful
death statute pursuant to the Tennessee Supreme Court’s January 25, 1999 opinion in Jordan v.
Baptist Three Rivers Hospital, 984 S.W.2d 593 (Tenn. 1999). The Sellers argue that Mrs. Scott
does not have a claim because Jordan cannot be applied retroactively, citing this Court’s decision
in Hill v. City of Germantown, No. 02A01-9803-CV-00078, 1999 WL 142386, at *1 (Tenn. Ct.
App. Sept. 20, 1999), as support for this position. In Hill, we reasoned that Jordan changed the
judicial construction of Tennessee’s wrongful death statute which then became part of the statute
itself and had the same effect as changing the law by legislation. See Hill, 1999 WL 142386, at *10
(citing Blank v. Olsen, 662 S.W.2d 324, 326 (Tenn. 1983)). We further reasoned that a change in
the judicial construction of a statute should not be applied retroactively. See id. at *11. The
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Tennessee Supreme Court granted permission to appeal our decision in Hill, and on October 20,
2000, it rendered its opinion.
One of the issues on appeal in Hill was whether Jordan could be applied retroactively. The
supreme court noted the holding in Blank v. Olsen, 662 S.W.2d 324 (Tenn. 1983), which stated that
“in the absence of . . . an expressed intent [to make it retroactive,] the rule is . . . that the decision
overruling a judicial construction of a statute will not be given retroactive effect.” See id. at 325.
The supreme court then stated that the absence of language giving Jordan retroactive effect was “a
product of oversight rather than the result of a judicial decision to limit Jordan to prospective
application only.” See Hill v. City of Germantown, 31 S.W.3d 234, 240 (Tenn. 2000). The
Tennessee Supreme Court then expressed its desire that Jordan be applied retroactively by holding
that “Jordan applies retroactively to: (1) all cases tried or retried after the date of our decision in
Jordan [January 25, 1999]; and (2) to all cases pending on appeal in which the issue decided in
Jordan was raised at an appropriate time.” Id. Based upon the supreme court’s holding in Hill, we
find that the Sellers’ argument must fail and find that, indeed, Jordan applies retroactively to this
case. Now, we must turn to the issue of whether Mrs. Scott can successfully assert a claim for loss
of consortium for the death of her minor child, Dalton.
Under Tennessee law, an action for wrongful death is statutory in nature, and recoverable
damages must be determined by reference to the statute involved. See Jordan, 984 S.W.2d at 597;
Tenn. Code Ann. §§ 20-5-101 to -120 (1994). Section 20-5-113 of the Tennessee Code provides as
follows for the damages recoverable in a wrongful death action:
Where a person’s death is caused by the wrongful act, fault, or omission of another,
and suit is brought for damages, as provided for by §§ 20-5-106 and 20-5-107, the
party suing shall, if entitled to damages, have the right to recover for the mental and
physical suffering, loss of time, and necessary expenses resulting to the deceased
from the personal injuries, and also the damages resulting to the parties for whose use
and benefit the right of action survives from the death consequent upon the injuries
received.
Tenn. Code Ann. § 20-5-113 (1994). Under this section, survivors of the deceased may recover for
their losses suffered as a result of the death as well as the damages sustained by the deceased from
the time of injury to the time of death. Because of such language, the Jordan court classified
Tennessee’s wrongful death statute as a hybrid between traditional survival and wrongful death
statutes. See Jordan, 984 S.W.2d at 598. In Davidson Benedict Co. v. Severson, 72 S.W.2d 967,
982 (Tenn. 1903), the Tennessee Supreme Court held that our wrongful death statute does not
provide for recovery of consortium damages. This was the standard in Tennessee until the supreme
court’s decision in Jordan.
In Jordan, the Tennessee Supreme Court revisited the issue of whether consortium-type
damages were recoverable under our wrongful death statute. The Jordan court determined that
section 20-5-113 of the Tennessee Code provided for a cause of action to compensate survivors for
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incidental damages sustained as a result of the injured party’s death. See Jordan, 984 S.W.2d at
600. Included in those incidental damages is the pecuniary value of the decedent’s life which the
court defined as “the expectancy of life, the age, condition of health and strength, capacity for labor
and earning money through skill, any art, trade, profession and occupation or business, and personal
habits as to sobriety and industry.” See id. (citations omitted). Further, the court determined that
the pecuniary value of a human life is also comprised of the value of human companionship. See
id. The Jordan court then refined the term “pecuniary value” to include consortium-type damages,
which it determined consisted of “several elements, encompassing not only tangible services
provided by a family member, but also intangible benefits each family member receives from the
continued existence of other family members. Such benefits include attention, guidance, care,
protection, training, companionship, cooperation, affection, love, and in the case of a spouse, sexual
relations.” Id. at 602. With its holding, the Jordan court reversed the standard set by Davidson
Benedict Co. and held that Tennessee’s wrongful death statutes allowed surviving spouses and
children of the deceased to sue for loss of consortium. See id. at 601. The Jordan court, however,
declined to address whether consortium damages may be recovered by parents in the event of the loss
of their child (filial consortium), stating “[t]hat issue will be addressed in an appropriate case.” Id.
at 596. Because Jordan applies retroactively to this case, as it was tried after January 25, 1999, and
because the loss of consortium issue was timely raised at the trial level, this is an appropriate case
to decide whether a parent may recover damages for filial consortium pursuant to Tennessee’s
wrongful death statute. Because this is a case of first impression in Tennessee, we must look to the
decisions of our sister jurisdictions for guidance.
Although “consortium” historically denoted the loss of an injured spouse’s services and
society, it recently has been broadened to encompass general notions of comfort, support and
companionship in the parent-child relationship, as well as in the spousal relationship. Today, most
jurisdictions allow for recovery of filial consortium damages in wrongful death actions for the death
of a child.7 After a careful review of cases from courts allowing recovery of filial consortium
7
Recovery is expressly pe rmitted by statute in the following sta tes: Indiana, Io wa, Kansa s, Kentucky, Maryland,
Massachusetts, Michigan, North Carolina, Ohio, Oklahoma, Virgin ia, Wash ington, and W isconsin. See Robinson v.
Wroblewski, 704 N.E.2d 467 (Ind. 1998); Pagitt v. Keokuk, 206 N.W.2d 700 (Io wa 1973 ); Kurdziel v. Van Es, 306 P.2d
159 (Kan. 19 57); Department of Ed. v. Belvins, 707 S.W .2d 782 (Ky. 198 6); Carolina Freight Carriers Corp. v. Keane,
534 A.2d 13 37 (M d. 1988 ); Guy v. Johnson, 448 N .E.2d 11 42 (M ass. 1983 ), review denied by 452 N.E.2d 1158;
Crystal v. Hubba rd, 324 N.W .2d 869 (Mich. 1 982); Bowen v. Constructors Equip. Rental Co., 196 S.E.2d 789 (N.C.
1973); Keaton v. Ribbeck, 391 N .E.2d 30 7 (Ohio 1 979); Clark v. Jones, 658 P.2d 1147 (Okla. 1983); Moda ber v.
Kelley, 348 S.E.2d 233 (Va. 1986); Wilson v. Lund, 491 P.2 d 1287 (Wash . 1971); Shockley v. Prier, 225 N.W.2d 495(Wis. 1975).
Recovery is permitted pursuant to statutory language (i.e. “general loss” or “pecuniary loss”) in the following
states: Alaska, Arizona, California, Idaho, Illinois, Louisiana, Minnesota, Mississippi, Montana, Nebraska, New Jer sey,
New York, North D akota, So uth Carolina , South Da kota, Tex as, Utah, and Vermo nt. See Gillispie v. Beta Constr. Co.,
842 P.2d 1272 (Alaska 19 92); Frank v. Superior Cou rt, 722 P.2 d 955 (A riz. 1986 ); Perry v. Medina, 237 Cal. Rptr.
532 (5th Dist. 1987 ); Checketts v. Bowman, 220 P.2d 682 (Id aho 195 0); Bullard v. Barnes, 468 N.E.2d 1228 (Ill.1984);
Vincent v. Morgan’s L. & T.R. & S.S. Co., 74 So. 541 (La. 1917); Fussner v. And ert, 113 N.W.2d 3 55 (Minn. 1961);
Louisville & N.R. Co. v. Whisenant, 58 So. 2 d 908 (M iss. 1952); Davis v. S mith , 448 P.2 d 133 (M ont. 1968 ); Selders
(continued ...)
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damages, this court is of the opinion that Tennessee should join the vast number of jurisdictions
allowing such recovery in wrongful death actions. It would be anomalous for us to deny parents
recovery for the loss of their child’s society in wrongful death actions when we have previously
allowed for a similar recovery when the loss of a parent and of a spouse was involved pursuant to
our wrongful death statute. See Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593 (Tenn.
1999) (interpreting wrongful death statute to include recovery for spousal and parental consortium
as part of incidental damages). Additionally, to allow for recovery of filial consortium is consistent
with the analysis and holding in Jordan.
First, such damages are not precluded by statute. Second, the modern trend in the
law appears to be to allow such damages. Third, several of the same bases that
support recovery for spouses and children, such as the value of a family member to
the family as a functioning social unit, would appear to equally support recovery for
parents.
Alexander v. Beale St. Blues Co., Inc., 108 F. Supp.2d 934, 953 (W.D. Tenn. 1999) (internal
citations omitted). Therefore, we hold that parents may recover consortium-type damages for the
wrongful death of their child. Now we must determine what factors should be considered in
computing those damages.
When recovery is based upon the pecuniary value of the decedent's life, the trier of fact must
make this determination upon a consideration of several factors, including the decedent's life
expectancy, age, condition of health and strength, capacity for labor and for earning money through
skill in any art, trade, profession, and occupation or business. See Hutton v. City of Savannah, 968
S.W.2d 808, 811-12 (Tenn. Ct. App. 1997) (citing Thrailkill v. Patterson, 879 S.W.2d 836, 841
(Tenn.1994)). That award should then be reduced by deducting the decedent's probable living
expenses had the decedent lived. See id. (citing Wallace v. Couch, 642 S.W.2d 141, 144
(Tenn.1982)). In the case of a minor child, those living expenses are the costs associated with child-
rearing. In the case of a very young child, estimates of the child’s future earnings and contributions
are speculative at best. See generally Ahrenholz v. Hennepin County, 295 N.W.2d 645, 648-49
(Minn. 1980). For this reason, it can be helpful to have expert testimony concerning the valuation
of a child’s pecuniary losses. See Green v. Bittner, 424 A.2d 210, 218 (N.J. 1980).
7
(...continued)
v. Armentrout, 207 N .W.2d 686 (N eb. 197 3); Green v. Bittner, 424 A.2 d 210 (N .J. 1980 ); Saguid v. Kingston Hosp.,
623 N.Y.S.2 d 341 (N .Y. App . Div. 199 5), appeal dismissed, 662 N.E.2d 793, leave to appeal dismissed by 667 N.E.2d
337 (1996) ; Hopkins v. McBane, 427 N .W.2d 85 (N.D . 1988); Gomillion v. Forsythe, 62 S.E.2d 297 (S.C. 1950);
Anderson v. Lale , 216 N .W.2d 152 (S.D . 1974); Sanchez v. Schindler, 651 S.W .2d 249 (Tex. 19 83); Jones v. Carvell ,
641 P .2d 105 (Utah 19 82); Clymer v. Webster, 596 A.2d 905 (Vt. 1991 ).
Recovery is allowed under a type of common law standard in New Mexico. See Fernandez v. Walgreen
Hastings Co., 968 P.2 d 774 (N .M. 199 8).
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Pecuniary value also necessarily encompasses the value of human companionship. Therefore,
in determining the amount of consortium damages, courts must also consider the benefits the child
bestowed on the family, such as companionship, comfort, society, attention, cooperation, affection,
care and love. Because it is impossible to generalize on the extent to which family members enjoy
each other’s companionship and society, the measurement of a particular parent’s loss of a particular
child’s consortium must be decided on a case by case basis. It must be noted, however, that recovery
of such losses are restricted to pecuniary losses, that is the actual monetary value of the life of the
child. Thus, parents cannot recover for the sorrow and anguish endured as a result of the child’s
death. See Wycko v. Gnodtke, 105 N.W.2d 118, 123 (Mich. 1960).
At the conclusion of the proof, the trial court granted the Sellers motion to dismiss Mrs.
Scott’s claim for loss of consortium. In view of the fact that this matter was tried without the
intervention of a jury, this cause, as it relates to Mrs. Scott’s claim for loss of consortium, is
remanded to the trial court for a determination of what additional damages, if any, Mrs. Scott is
entitled to for the loss of consortium of her minor son. The trial court is instructed to include in such
award an entry of judgment against Mr. Sellers in accordance with this opinion.
Wrongful Death Award
Mrs. Scott contends that the trial court’s award of $700,000 in damages pursuant to the
wrongful death statute was insufficient and against the preponderance of the evidence. In reviewing
nonjury verdicts, unless the evidence preponderates against the court’s findings, we must affirm the
trial court’s judgment absent error of law. See Squibb v. Smith, 948 S.W.2d 752 (Tenn. Ct. App.
1997); Tenn. R. App. P. 13(d).
Section 20-5-113 of the Tennessee Code governs what damages are recoverable in wrongful
death cases. That section provides for recovery of “the mental and physical suffering, loss of time,
and necessary expenses resulting to the deceased from the personal injuries, and also the damages
resulting to the parties for whose use and benefit the right of action survives from the death
consequent upon the injuries received.” Tenn. Code Ann. § 20-5-113 (1994).
At trial, Mrs. Scott introduced the expert testimony of Dr. John Knepper and of Dr. Thomas
Depperschmidt. Dr. Knepper testified to the cause of Dalton’s death and to the reasonableness and
necessity of the medical bills incurred for Dalton’s treatment. The amount of those medical bills was
$8,807.55. Dr. Depperschmidt testified to the pecuniary value of Dalton’s life. In arriving at a figure
of $1,160,000, Dr. Depperschmidt based his conclusion on Dalton’s parents’ education and on the
money income figures published by the Department of Commerce. Dr. Depperschmidt further
included average fringe benefits for a typical worker in the $1,160,000 figure, but excluded personal
maintenance costs which he assumed Dalton would incur based upon the assumption that Dalton
would have married and have had two children. After hearing this evidence, the trial court awarded
Mrs. Scott $700,000 for the wrongful death of her son, Dalton. Expert testimony is not conclusive,
even if uncontradicted, but is rather purely advisory in character, and the trier of fact may place
whatever weight it chooses on such testimony. See Gibson v. Ferguson, 562 S.W.2d 188, 189-90
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(Tenn. 1976); England v. Burns Stone Co., Inc., 874 S.W.2d 32, 38 (Tenn. Ct. App. 1993).
Further, the trier of fact may draw upon its common knowledge and may arrive at a conclusion
contrary to the expert testimony. See England, 874 S.W.2d at 38.
After carefully reviewing the record, we find that the trial court’s award of $700,000 was
supported by the evidence introduced at trial and was within the purview of section 20-5-113 of the
Tennessee Code. Therefore, we find that the trial court’s award was proper under these
circumstances, and we affirm the trial court’s judgment.
Negligent Infliction of Emotional Distress
In raising the issue of whether the trial court erred in not dismissing Mr. Fuhs’ claims for
negligent infliction of emotional distress, the Sellers contend that Mr. Fuhs has no basis for such a
claim because he is unable to meet the requirements established in Ramsey v. Beavers, 931 S.W.2d
527 (Tenn. 1996). We disagree with the Sellers’ interpretation of Ramsey and their assertion that
Mr. Fuhs does not have a basis for his negligent infliction of emotional distress claim.
After a long history of confusing and unpredictable law as it concerned negligent infliction
of emotional distress, the Tennessee Supreme Court established the factors required to make out a
prima facie case for negligent infliction of emotional distress in its opinion in Camper v. Minor, 915
S.W.2d 437 (Tenn. 1996). There, the court held that such cases should be analyzed under the general
negligence approach whereby the plaintiff must present evidence as to duty, breach of duty, injury
or loss, causation in fact, and proximate, or legal, cause. See id. at 446. In order to recover for
emotional injuries, the plaintiff must prove two things: (1) that the defendant’s negligence in fact
caused the third person’s injuries or death and the plaintiff’s emotional injury; and (2) that the third
person’s injury or death and the plaintiff’s emotional injury were the proximate and foreseeable
results of defendant’s negligence. See id. Further, the Camper court held that recovery is allowed
only where the plaintiff suffered serious or severe emotional injuries, which occurs when “a
reasonable person, normally constituted, would be unable to adequately cope with the mental stress
engendered by the circumstances of the case,” and that the claimed injury must be supported by
expert medical or scientific proof. Id. (citations omitted).
With its holding, the Camper court did not necessarily abandon the “zone of danger”
approach to negligent infliction of emotional distress cases. Instead, the court determined that the
principles of the “zone of danger” approach should be incorporated into a case’s analysis as a way
of defining and limiting the elements of duty and proximate cause. See id. at n.2. The Camper
court, however, reserved the specifics of such incorporation for discussion in a later case. That later
case was Ramsey v. Beavers, 931 S.W.2d 527 (Tenn. 1996).
In Ramsey, the Tennessee Supreme Court determined that the principles of the “zone of
danger” approach were helpful in determining foreseeability. The court opined that establishing
foreseeability required consideration of three factors, namely, (1) the plaintiff’s physical location at
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the time of the accident and his awareness of the accident, (2) the seriousness of the injury to the
third party, and (3) the plaintiff’s relationship to the injured third party. See id. at 531.
On appeal, the Sellers argue that Ramsey stands for the proposition that a plaintiff must
prove all three factors in order to establish foreseeability. A careful reading of Ramsey insists
otherwise. The Ramsey court requires consideration of a number of relevant factors of which the
plaintiff’s location at the time of the event and his awareness of the accident are considered essential.
Because these two factors are considered essential for the determination of foreseeability, the court
explained that the plaintiff must establish that he was sufficiently close to the event to allow for
sensory observation and that the injury to the third party was, or was reasonably perceived to be,
serious or fatal. Although the court recognized that most jurisdictions require the plaintiff to have
a close relationship with the third party, it did not expressly state that a plaintiff in Tennessee must
have had a close relationship with the third party in order to establish foreseeability. To hold that
Ramsey requires proof of all three factors before foreseeability can be established would be contrary
to Camper v. Minor as the plaintiff in that case was a complete stranger to the third party but yet was
allowed to recover his damages for negligent infliction of emotional distress. Furthermore, in
applying Ramsey, we held in McCrackin v. City of Millington, 1999 WL 142391, at *1 (Tenn. Ct.
App. Mar. 17, 1999), that “[i]n determining whether the plaintiff’s emotional injury was foreseeable,
the trier of fact should consider (1) the plaintiff’s physical location at the time of the injury-
producing event as well as the plaintiff’s awareness of the injury-producing event, (2) the seriousness
of the third party’s injury, and (3) the nature of the plaintiff’s relationship with the injured third
party.” Id. at *10 (emphasis added). As concerns the third factor, we believe that the nature of the
plaintiff’s relationship with the third party should play a pivotal role in determining the amount of
damages to award, rather than being a prerequisite for establishing foreseeability as the Sellers
suggest.
In the instant action, Eddie Sellers had a duty to drive his vehicle within the bounds of the
law. By not remaining stopped at the stop sign, Eddie breached this duty. As a result of this breach,
an accident occurred which injured Mr. Fuhs, Mr. Thurmon, and fatally injured Dalton. It was
conceded at trial that Eddie was the cause in fact and the proximate cause of the accident which
killed Dalton. Mr. Fuhs further testified that he suffered emotionally as a result of witnessing the
accident caused by Eddie and of subsequently witnessing what he perceived to be Dalton’s lifeless
body. Regarding foreseeability, although Mr. Fuhs was not related to nor did he have a close
relationship with any of the occupants of Eddie’s pickup truck at the time of the accident, Mr. Fuhs
witnessed, from a few feet away, Dalton’s body slumped over the back seat of the pickup truck and
hanging halfway out of the truck’s back window. Mr. Fuhs testified that he thought Dalton was dead
at the accident scene, but expert testimony established that Dalton, in fact, died several hours after
the accident while in the hospital.
Mr. Fuhs sought treatment from a psychologist for anxiety, sleeping problems, and
flashbacks. At trial, Mr. Fuhs introduced expert testimony establishing that he has a permanent
impairment of 12% to the body as a whole from his physical injuries and of 55-75% to the body as
a whole from his mental distress related to this accident. Based upon the foregoing, we conclude that
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Mr. Fuhs was successful in establishing a prima facie case for negligent infliction of emotional
distress under Camper v. Minor and Ramsey v. Beavers. Thus, the trial court did not err in denying
the Sellers’ motion to dismiss Mr. Fuhs’ claim for negligent infliction of emotional distress.
Damages Award
The Sellers contend that the trial court’s award of $275,000 to Mr. Fuhs was beyond the
range of reasonableness and must be set aside. In accordance with Rule 13(d) of the Tennessee
Rules of Appellate Procedure, a trial court’s findings of fact and its judgment in a bench-tried case
must be affirmed, unless the evidence preponderates against the court’s findings, absent an error of
law. See Squibb v. Smith, 948 S.W.2d 752 (Tenn. Ct. App. 1997); Tenn. R. App. P. 13(d).
At trial, Mr. Fuhs offered lay and expert testimony and an analysis of the damages he
sustained as a result of this accident. A synopsis of those damages follows.
Medical Expenses $9,224.94
Property Losses $41,430.00
Income Losses $44,544.13
Future Income Losses $269,787.56
Total $364,986.63
Additionally, Mr. Fuhs was diagnosed as having a total permanent impairment of 12% to the body
from his physical injuries and of 55-75% to the body from his mental distress. Based upon the
evidence introduced at trial, the trial court awarded Mr. Fuhs $275,000 in damages, finding that Mr.
Fuhs “did experience some nonphysical injury that should be considered in making an award in his
situation.” After carefully reviewing the record, we find that the evidence supports the trial court’s
award to Mr. Fuhs and that no error of law was committed by the trial court in making its award.
Accordingly, we affirm the amount of the verdict in favor of Mr. Fuhs, but we remand this issue to
the trial court for entry of judgment against Mr. Sellers, as well as Eddie Sellers, in accordance with
our holding that Mr. Sellers is vicariously liable for the acts of Eddie Sellers under the family
purpose doctrine.
Conclusion
Based upon the foregoing, we hold that, as a matter of law, Mr. Sellers is not vicariously
liable for the acts of Eddie Sellers under the doctrine of respondeat superior. Mr. Sellers is, however,
vicariously liable for the damages incurred by the plaintiffs as a result of the collision caused by his
son, Eddie Sellers, under the family purpose doctrine. Hence, we affirm the trial court’s ruling as
it concerns the issue of respondeat superior, but we reverse the ruling as it concerns the family
purpose doctrine. Accordingly, we remand this issue to the trial court for entry of judgment against
Mr. Sellers and in favor of all plaintiffs in accordance with our holding in this opinion.
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We hold that Tennessee is to join the majority of jurisdictions allowing for recovery of filial
consortium damages in a wrongful death action for the death of a child pursuant to our wrongful
death statute and to the Tennessee Supreme Court’s holding in Jordan v. Baptist Three Rivers
Hospital. Recovery is limited to pecuniary losses which are to be reduced by the amount of child-
rearing expenses projected to have been incurred by the parents. Recovery may not be had for the
grief and anguish suffered by the parents as such loss is not monetary in nature. For the foregoing
reasons, we remand this cause to the trial court for a determination of what additional damages, if
any, Mrs. Scott is entitled to for the loss of consortium of her minor son. The trial court is instructed
to include in such award an entry of judgment against Mr. Sellers in accordance with this opinion.
We hold that the trial court’s award of $700,000 to Mrs. Scott on her wrongful death claim
was supported by the evidence and is thus affirmed.
We find that Mr. Fuhs sufficiently established his claim for negligent infliction of emotional
distress, and the trial court correctly denied the Sellers’ motion to dismiss this claim. The trial
court’s judgment on this issue is affirmed. Additionally, we uphold the amount awarded to Mr. Fuhs
as proper, but we remand this issue for the entry of judgment against Mr. Sellers in accordance with
this opinion.
Accordingly, we affirm in part, reverse in part, and remand this case to the trial court for
entry of judgment consistent with this opinion. The costs of this appeal are taxed equally to the
appellants, Dana Hope Davis Thurmon Scott, Shane and Tiffany Thurmon, and Carl J. Fuhs, and to
the appellees, Eddie Sellers and Donald E. Sellers, Sr., and their sureties, for which execution may
issue if necessary.
___________________________________
DAVID R. FARMER, JUDGE
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