Melanie Shea Thompson v. Southland Constructors ( 2020 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 2, 2020 Session
MELANIE SHEA THOMPSON ET AL. v. SOUTHLAND CONSTRUCTORS
ET AL.
Appeal from the Circuit Court for Sumner County
No. 83CC1-2018-CV-1032 Joe H. Thompson, Judge
No. M2019-02060-COA-R3-CV
This action involves a tragic accident resulting in the death of Tommy Smith (“Decedent”),
who was working as a plumber connecting a sewer line when the trench he was in collapsed
and crushed him. Decedent’s children (“Plaintiffs”) sued, among others, Focus Design
Builders, LLC, general contractors for the building project, alleging negligence. The trial
court granted Focus Design’s motion to dismiss the complaint for failure to state a claim
upon which relief can be granted, pursuant to Tenn. R. Civ. P. 12.02(6). The trial court
held that Focus Design did not owe a duty of reasonable care under the circumstances
because Decedent’s death was unforeseeable. We hold the complaint states a cause of
action for negligence and consequently reverse the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Reversed; Case Remanded
KRISTI M. DAVIS, J., delivered the opinion of the Court, in which JOHN W. MCCLARTY and
THOMAS R. FRIERSON, II, JJ., joined.
David Randolph Smith and Dominick R. Smith, Nashville, Tennessee, for the appellants,
Melanie Shea Thompson and Tyler Thomas Smith.
Richard Spicer and Lance W. Thompson, Nashville, Tennessee, for the appellee, Focus
Design Builders, LLC.
OPINION
I. BACKGROUND
The construction project was the design and building of a new student activity center
and gymnasium on the campus of Welch College in Gallatin, Tennessee. Welch College
hired defendant Southland Constructors, Inc. as general contractor and on-site construction
manager. According to the complaint, Welch College also “hired defendant Focus Design
Builders, LLC as a general contractor . . . with the duties and responsibilities imposed by
its contracts and by taking out the building permit . . . for the project with the city of Gallatin
on March 16, 2017.”
Defendant Music City Fire Sprinkler, LLC, the utility contractor, installed the sewer
lines for the project. Music City laid the pipe for the sewer line at issue but did not connect
it to the building before it was buried. The Welch College basketball team was scheduled
to play its opening game in the new gymnasium on October 27, 2017. The plumbing issue
resulting from the unconnected sewer line was not discovered until approximately one day
before the scheduled game. The complaint alleges that “negligently and recklessly the[]
defendants proceeded in a rush and hurry to open the building to the public before proper
inspections and a certificate of use and occupancy had been obtained.”
Southland Constructors discovered the plumbing issue and called Mitchell
Plumbing, Decedent’s employer, to fix the problem. According to the complaint,
Upon discovery of the negligent defect, Defendant SouthLand1 Constructors,
Inc. as agent for the owner (Welch College) and/or Welch College hired
Mitchell Plumbing to connect the sewer line by a trenching and excavation
job on an emergent basis to make the sewer operational for the opening
basketball game scheduled the next night (Friday, October 27, 2017)—
despite the fact that the building had not received a final inspection nor any
use and occupancy permit.
Contrary to its obligations as an owner, construction manager, and general
contractor, Welch College, SouthLand Constructors, Inc. and Focus Design
Builders failed to inspect the work that had been done by the contractors
involved in the plumbing and sewer line construction and failed to advise of
the need for special precautions and equipment for the excavation that was
being rushed in wet weather, in a flood plain, on ground and soil that was
dangerous and unstable (having previously been disturbed when the sewer
line was installed some 35-40 feet from the building. . . .)
(Numbering in original omitted). Southland Constructors advised Mitchell Plumbing that
a trench about fifteen feet long and three feet deep would be required to access the end of
1
In various places in the record, the defendant’s name is spelled “SouthLand,” and in others,
“Southland.” The defendant’s own answer consistently spells it “Southland,” but in its answer to the
amended complaint, it is primarily spelled “SouthLand.” The record leaves us unsure of the correct
capitalization.
2
the sewer line. This information turned out to be inaccurate; the trench required was longer
and deeper than this estimate. Mitchell Plumbing allegedly relied on this misinformation
and did not bring materials to shore up the sides of the trench.
Decedent and another Mitchell Plumbing employee arrived with a trackhoe
excavator to connect the sewer line. The end of the sewer line was buried about five feet
deep. Plaintiffs allege the soil in the area was in an especially dangerous condition because
it was wet and loose due to the previous excavation. Shortly after Decedent entered the
trench to connect the PVC piping from the bathroom to the sewer line, the walls collapsed
on him and he was crushed to death.
Plaintiffs sued Welch College, Southland Constructors, Focus Design, and Music
City for negligence resulting in Decedent’s wrongful death. Specifically, the amended
complaint alleges as follows in pertinent part:
Defendant SouthLand Constructors, Inc. and Focus Design Builders, LLC
through employees, agents, had the responsibility as a general contractor and
site manager to make sure and ensure that no dangerous and hazardous
conditions existed on said property and premises.
* * *
The death of Tommy Smith was caused by the direct and proximate result of
the negligence of Defendants in the following particulars:
a. In failing to construct, inspect and oversee that the sewer line had never
been connected to the building;
b. In misinforming Mitchell Plumbing and its employees that the trench that
needed to be dug was 15 feet in length and 3 feet in depth;
c. In failing to inform Mitchell Plumbing and its employees that the buried
sewer line would require excavation protection (as depth was 5 feet or
greater);
d. Ordering and scheduling the work when it was wet, raining, cold and the
soil was in a dangerous condition not suitable for excavation due to these
conditions (Type C soil) and because of the prior excavation that had
previously disturbed and loosened the soil.
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e. Ordering work on a rush basis to accommodate the public in a building
whose sewer line that had not been approved on a final inspection and had
not been approved for use and occupancy.
f. Negligently failing to inspect or realize that a bathroom sewer line had not
been properly connected and installed prior to burying and sodding the area.
g. Failing to properly plan the trenching and excavation and failing to have a
proper competent person approve the trenching plan.
h. Failing to close the adjacent pavement and parking lot to vehicles while
the excavation was occurring. Having failed to close the parking lot to
vehicles and traffic, vibrations were from vehicles were a substantial factor
in causing the trench wall to give way and cave in. The parking lot was at
all relevant times under the exclusive control of SouthLand Constructors
Inc., Welch College and/or Focus Design Builders, LLC.
i. In failing to take the necessary steps and adequate precautions to see or
ensure that the excavation was undertaken safely;
j. In failing to perform reasonable inspections which would have detected the
dangerous and/or hazardous conditions which existed;
k. In negligently failing to determine the depth of the sewer line before
misinforming Mitchell Plumbing that its depth was only three feet;
l. In failing to perform regular or routine inspections of the soil, premises,
bathroom, drain(s) and sewer line to ensure that no dangerous or hazardous
condition existed;
m. In negligently rushing this job due to the previous delays and the
scheduled basketball game thereby failing to take proper planning and safety
precautions;
n. Failing to connect the sewer line to the bathroom line and drain thereby
creative [sic] a defective and dangerous condition that directly caused the
emergency/rushed excavation;
o. Failing to obtain a final approval and final inspection for the sewer line
from the White House Utility District;
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p. Failing to warn that the sewer line had been left unconnected to the
building and concealed and covered up with dirt and sod to grade, thereby
concealing the sewer line and creating a dangerous condition[.]
Focus Design filed a Rule 12.02(6) motion to dismiss the complaint for failure to
state a claim upon which relief can be granted. Welch College filed an answer denying
liability, and cross-claims against Southland Constructors and Focus Design. The trial
court granted Focus Design’s motion to dismiss, holding as follows:
Generally, an owner or occupier of land owes an independent contractor
hired to perform work on the premises a duty to use reasonable care to
provide a reasonably safe place in which to work. . . . But even assuming
that as the general contractor, Focus Design Builders was the occupier of the
property and therefore obligated to provide to independent contractors a
reasonably safe place to work, such a duty does not carry with it the
requirement of constant care and inspection under any and all circumstances.
* * *
Respectfully, the court finds that the Plaintiffs have failed to demonstrate that
Focus Design Builders reasonably knew or should have known of the
probability of injury to Mr. Smith. To extend the duty of care to Focus
Design Builders under the facts alleged in this case would require Focus
Design Builders to foresee the risk that another contractor would leave a
sewer line disconnected, that Southland Constructors would hire Mitchell
Plumbing to excavate the sewer line but misinform it of the depth of the line,
that Mitchell Plumbing and Mr. Smith would continue to excavate below
three (3) feet to a depth of more than five (5) feet without a trench box or
sidewall protection, and that Mr. Smith would climb into a trench more than
five (5) feet deep that was not supported with any sidewall protection.
(Citations omitted). The trial court granted Focus Design’s motion to deem the court’s
dismissal of the complaint a final and appealable order pursuant to Tenn. R. Civ. P. 54.02,
notwithstanding that other issues against other parties remain unadjudicated.
II. ISSUES
Plaintiffs appeal, raising these issues, as quoted from their brief:
1. Whether the Trial Court, at the Rule 12.02(6) pleadings stage, erred by
finding that the allegations in the First Amended Complaint were insufficient to
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establish a duty of care owed by Focus Design Builders to Plaintiffs’ decedent,
Tommy Smith due
to lack of foreseeable harm?
2. Whether it was reasonably foreseeable that Focus Design Builders’ breach of its
duty of care could result in a cave-in injury to Mr. Smith?
III. STANDARD OF REVIEW
As this Court has recently reiterated, “[a] motion to dismiss filed pursuant to Tenn.
R. Civ. P. 12.02(6) challenges the legal sufficiency of the complaint, not the strength of the
plaintiff’s proof or evidence.” Mershon v. HPT TA Properties Trust, No. M2018-00315-
COA-R3-CV, 2018 WL 5793564, at *2 (Tenn. Ct. App., Nov. 5, 2018) (quoting Webb v.
Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011) (internal
quotation marks omitted)). “A defendant who files a motion to dismiss admits the truth of
all of the relevant and material allegations contained in the complaint, but asserts that the
allegations fail to establish a cause of action.” Id. (ellipses and internal quotation marks
omitted). According to our Supreme Court,
“Our motion-to-dismiss jurisprudence reflects the principle that this stage of
the proceedings is particularly ill-suited for an evaluation of the likelihood
of success on the merits or of the weight of the facts pleaded, or as a docket-
clearing mechanism.” Webb v. Nashville Area Habitat for Humanity, 346
S.W.3d 422, 437 (Tenn. 2011). In reviewing these motions, we are required
to construe the complaint liberally, presume that all factual allegations are
true and give the plaintiff the benefit of all reasonable inferences. Id. Only
when it appears that the plaintiff can prove no set of facts in support of the
claim that would entitle the plaintiff to relief should a trial court grant a
motion to dismiss. Webb, 346 S.W.3d at 426. The lower courts’ legal
conclusions are reviewed de novo without any presumption of correctness.
Id.
Cullum v. McCool, 432 S.W.3d 829, 832 (Tenn. 2013). Whether a defendant owes a
plaintiff a duty of care in a negligence case is a question of law that we review de novo.
Id. at 832-33.
IV. ANALYSIS
A plaintiff must prove the following elements to establish a negligence claim: “(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 the duty; (3) an injury or loss; (4)
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causation in fact; and (5) proximate (legal) causation.” Helton v. Lawson, No. E2018-
02119-COA-R3-CV, 2019 WL 6954180, at *9 (Tenn. Ct. App. Dec. 18, 2019) (quoting
Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn. 1993)). “Duty is ‘a legal obligation to
conform to a reasonable person standard of care in order to protect others against
unreasonable risks of harm.’” Cullum, 432 S.W.3d at 833 (quoting Satterfield v. Breeding
Insulation Co., 266 S.W.3d 347, 355 (Tenn. 2008).
As this Court stated in Miranda v. CSC Sugar, LLC, No. W2017-01986-COA-R3-
CV, 2018 WL 3302035 at *3 (Tenn. Ct. App. July 5, 2018),
In premises liability cases, persons in control of real property have a duty to
exercise reasonable care under the circumstances to prevent injury to persons
lawfully on the premises. Johnson v. EMPE, Inc., 837 S.W.2d 62, 65 (Tenn.
Ct. App. 1992). Under Tennessee law, the employee of an independent
contractor enjoys the status of an invitee while performing work on the
premises of the owner-contractee. Dempster Bros. Inc. v. Duncan, 61 Tenn.
App. 88, 452 S.W.2d 902, 906 (1969). As a result of the employee’s status
as an invitee, the premises owner owes the employee “the duty to exercise
reasonable care to see that an employee has a reasonably safe place to work.”
Id. This general duty includes the specific responsibility of either removing,
or warning the independent contractor of, any hidden or latent dangers on the
property. Bennett v. Trevecca Nazarene Univ., 216 S.W.3d 293, 299 (Tenn.
2007).
Tennessee appellate courts addressing situations where an employee of a
subcontractor is injured at a workplace have looked to, among other things, the contracts
governing the relationships between the landowners, prime contractors, and subcontractors
to examine the scope of parties’ respective duties. See, e.g., Johnson v. EMPE, Inc., 837
S.W.2d 62, 65-68 (Tenn. Ct. App. 1992); Oman Constr. Co. v. Tenn. Cent. Ry. Co., 370
S.W.2d 563, 575 (Tenn. 1963) (noting that “[t]he existence of a contract may furnish the
occasion for a tort obligation” and ruling “there was ample proof introduced at the trial to
make an issue for the jury as to negligence on the part of [defendants] in constructing the
tunnel beneath plaintiff’s property”); Martin v. Garner & Law, No. 03A01-9102-CV-
00080, 1991 WL 177915, at *1-2 (Tenn. Ct. App. Sept. 13, 1991). In Martin, a case
involving the death of a contractor’s workers in a trench cave-in, the Court observed that
“[t]he contract between the owner and the contractor (decedents’ employer) utilizes the
standard American Institute of Architects form, which places sole responsibility for
supervision and safety on the contractor.” 1991 WL 177915, at *1.
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The complaint in this case alleges that Focus Design, “as general contractor for the
construction . . . [had] the duties and responsibilities imposed by its contracts and by taking
out the building permit.” It further alleges:
Plaintiff avers Southland Constructors, Inc. acted as an agent of Focus
Design Builders, LLC by both the common law of agency and/or by virtue
of Focus Design Builder’s duties imposed under the building permit and/or
by its contractual relationship with Welch College and/or SouthLand
Constructors, Inc.
* * *
Focus Design Builders, LLC through employees, agents, had the
responsibility as a general contractor and site manager to make sure and
ensure that no dangerous and hazardous conditions existed on said property
and premises.
In their initial response to Focus Design’s motion to dismiss, plaintiffs argued that
dismissal of their complaint was premature because they had not been allowed time and
opportunity to conduct discovery of the alleged contracts, among other things. We agree
that plaintiffs were entitled to conduct discovery to substantiate their claims that Focus
Design undertook a duty to oversee and supervise the construction project, inspect the work
done by subcontractors, and warn employees of hazardous conditions. In Martin, this
Court stated the following in response to a similar argument:
On the remaining issue, the trial judge abused his discretion in restricting
plaintiffs’ discovery to Blount Excavating employees. Plaintiffs were placed
in [the] position of responding to a motion for summary judgment without
meaningful discovery of all defendants. While the trial judge has broad
discretion over the discovery process, this discretion is abused when
summary judgment is granted without permitting adequate discovery.
1991 WL 177915, at *2.
When Welch College filed its cross-claim against Focus Design, it attached its
contract with Focus Design to its answer and cross-claim, and further expressly alleged the
following in its pleading:
Welch College entered into a contract with [Focus Design], AIA® Document
A103TM - 2007, Standard Form of Agreement Between Owner and
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Contractor, . . . (the “Contract”), regarding the construction by [Focus
Design] of a Student Recreation Center for Welch College.
The Contract incorporated the AIA® Document A201TM - 2007 General
Conditions of the Contract for Construction (“General Conditions”), a copy
of which is attached hereto as Exhibit B. Section 3.3 of the General
Conditions entitled SUPERVISION AND CONSTRUCTION
PROCEDURES contains the following relevant provisions:
§ 3.3.1 The Contractor shall supervise and direct the Work, using the
Contractor’s best skill and attention. The Contractor shall be solely
responsible for, and have control over, construction means, methods,
techniques, sequences and procedures and for coordinating all portions of the
Work under the Contract, unless the Contract Documents give other specific
instructions concerning these matters. If the Contract Documents give
specific instructions concerning construction means, methods, techniques,
sequences or procedures, the Contractor shall evaluate the jobsite safety
thereof and, except as stated below, shall be fully and solely responsible for
the jobsite safety of such means, methods, techniques, sequences or
procedures. If the Contractor determines that such means, methods,
techniques, sequences or procedures may not be safe, the Contractor shall
give timely written notice to the Owner and Architect and shall not proceed
with that portion of the Work without further written instructions from the
Architect. . . .
* * *
§ 3.3.3 The Contractor shall be responsible for inspection of portions of
Work already performed to determine that such portions are in proper
condition to receive subsequent Work.
The Contract, at Section 10.2 of the General Conditions entitled SAFETY
OF PERSONS AND PROPERTY, provides:
§ 10.2.1 The Contractor shall take reasonable precautions for safety of, and
shall provide reasonable protection to prevent damage, injury or loss to
.1 employees on the Work and other persons who may be
affected thereby;
.2 the Work and materials and equipment to be incorporated
therein, whether in storage on or off the site, under care,
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custody or control of the Contractor or the Contractor’s
Subcontractors or Sub-subcontractors; and
.3 other property at the site or adjacent thereto, such as trees,
shrubs, lawns, walks, pavements, roadways, structures and
utilities not designated for removal, relocation or replacement
in the course of construction.
§ 10.2.2 The Contractor shall comply with and give notices required by
applicable laws, statutes, ordinances, codes, rules and regulations, and lawful
orders of public authorities bearing on safety of persons or property or their
protection from damage, injury or loss.
§ 10.2.3 The Contractor shall erect and maintain, as required by existing
conditions and performance of the Contract, reasonable safeguards for safety
and protection, including posting danger signs and other warnings against
hazards, promulgating safety regulations and notifying owners and users of
adjacent sites and utilities.
* * *
§ 10.2.6 The Contractor shall designate a responsible member of the
Contractor’s organization at the site whose duty shall be the prevention of
accidents. This person shall be the Contractor’s superintendent unless
otherwise designated by the Contractor in writing to the Owner and
Architect.
§ 10.2.7 The Contractor shall not permit any part of the construction or site
to be loaded so as to cause damage or create an unsafe condition.
(Bold font and capitalization in original; numbering omitted).
The trial court dismissed the complaint on the ground that the chain of events
leading to Decedent’s death was unforeseeable. Our Supreme Court, in the cases of
Satterfield v. Breeding Insulation Co., 266 S.W.3d 347 (Tenn. 2008) and Giggers v.
Memphis Housing Auth., 277 S.W.3d 359 (Tenn. 2009), provided guidance regarding a
trial court’s role in assessing foreseeability at a pretrial stage of litigation. The Court
explained:
In order to determine whether a duty is owed in a particular circumstance,
courts must first establish that the risk is foreseeable, and, if so, must then
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apply a balancing test based upon principles of fairness to identify whether
the risk was unreasonable. Satterfield v. Breeding Insulation Co., 266
S.W.3d 347, 366 (Tenn. 2008). That is, in consideration of, among other
things, the presence or absence of prior similar incidents, and other
circumstances, does the foreseeability of the harm outweigh the burden of
the duty imposed? McClung, 937 S.W.2d at 901. In Downs ex rel. Downs
v. Bush, 263 S.W.3d 812, 820 (Tenn. 2008), we held as follows:
The foreseeability of the harm is a key factor in the equation
because, in general terms, “[f]oreseeability is the test of
negligence.” West, 172 S.W.3d at 552 (quoting Linder Constr.
Co., 845 S.W.2d at 178); Hale v. Ostrow, 166 S.W.3d 713,
716–17 (Tenn. 2005). “ ‘A risk is foreseeable if a reasonable
person could foresee the probability of its occurrence or if the
person was on notice that the likelihood of danger to the party
to whom is owed a duty is probable.’ ” West, 172 S.W.3d at
551 (quoting Linder Constr. Co., 845 S.W.2d at 178).
However, foreseeability alone does not create a duty to
exercise reasonable care. McClung, 937 S.W.2d at 904. If the
risk is foreseeable, then courts should weigh the remaining
factors to determine if an imposition of duty is justified.
Although no duty will arise when a risk of injury is not generally foreseeable,
foreseeability alone “is not, in and of itself, sufficient to create a duty.”
Satterfield, 266 S.W.3d at 366. Rather, when a minimum threshold of
foreseeability is established, courts must engage in “an analysis of the
relevant public policy considerations,” id. at 364–65, to determine whether a
duty enforceable in tort must be imposed. While not exclusive, the factors
are as follows:
[T]he foreseeable probability of the harm or injury occurring;
the possible magnitude of the potential harm or injury; the
importance or social value of the activity engaged in by
defendant; the usefulness of the conduct to defendant; the
feasibility of alternative, safer conduct and the relative costs
and burdens associated with that conduct; the relative
usefulness of the safer conduct; and the relative safety of
alternative conduct.
McCall, 913 S.W.2d at 153. See also Burroughs, 118 S.W.3d at 329.
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When and if the trial court determines that the foreseeability of the harm and
its particular gravity outweigh the burden of taking reasonable protective
measures, the question “of duty and of whether defendants have breached
that duty . . . is one for the jury to determine based upon proof presented at
trial.” McClung, 937 S.W.2d at 904.
Giggers, 277 S.W.3d at 365-66.
The question of whether Plaintiffs have demonstrated “a minimum threshold of
foreseeability,” id. at 366, and thereby established “a prima facie case of specific
foreseeability,” id. at 367, is inextricably intertwined with questions of what Focus Design
knew or reasonably should have known, and when. Tennessee appellate courts have
focused on the often fact-driven questions of knowledge and awareness of alleged defects
in determining foreseeability at a pretrial stage. For example, the Satterfield Court
observed that “[u]nder the facts alleged in Ms. Satterfield’s complaint, Alcoa was aware of
the presence of significant quantities of asbestos fibers on its employees’ work clothes. It
was also aware of the dangers posed by even small quantities of asbestos and that asbestos
fibers were being transmitted by its employees to others.” 266 S.W.3d at 367. Based on
these facts, among other things, the Court reversed the trial court’s grant of judgment on
the pleadings for the defendant. Id. at 375. In Giggers, the Supreme Court, reversing
summary judgment, found that Memphis Housing Authority, “with some general
knowledge of criminal activity within its housing complexes and a particular knowledge
of Miller’s altercation with another tenant four years earlier, could have reasonably
foreseen the probability of a violent act.” 277 S.W.3d at 367.
This Court has stated on several occasions that “[p]remises liability stems from
superior knowledge of the condition of the premises.” Keirsey v. K-VA-T Food Stores,
Inc., No. E2018-01213-COA-R3-CV, 2019 WL 1301758, at *4 (Tenn. Ct. App. Mar. 20,
2019); Shaw v. Metro. Gov’t of Nashville, 596 S.W.3d 726, 735 (Tenn. Ct. App. 2019)
(stating that a premises owner’s “duty to exercise reasonable care under the circumstances
to prevent injury to persons lawfully on the premises . . . is based on the understanding that
an owner has ‘superior knowledge of any perilous condition that may exist on the
property’”) (quoting Dobson v. State, 23 S.W.3d 324, 330 (Tenn. Ct. App. 1999)). Focus
Design has not cited any appellate opinion upholding a trial court’s dismissal of a
complaint on the ground that the plaintiff was unable to establish a minimum threshold of
foreseeability, nor has our research revealed such a case. Conversely, we have reversed
such decisions at either the motion-to-dismiss or summary judgment stage on several
occasions. See, e.g., Mershon, 2018 WL 5793564, at *1 (reversing dismissal on
foreseeability grounds because “dismissing the complaint is premature at this stage of the
proceedings”); Richardson v. Trenton Special Sch. Dist., No. W2015-01608-COA-R3-CV,
2016 WL 3595563, at *7 (Tenn. Ct. App. June 27, 2016) (“We conclude that the question
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of whether this assault was foreseeable based on the school’s supervision policy is a
question to be determined at trial, and that summary judgment is premature here”); Riggs
v. Wright, 510 S.W.3d 421, 432 (Tenn. Ct. App. 2016) (affirming dismissal on other
grounds but expressly not on foreseeability; stating “we assume arguendo that, at the
motion to dismiss stage, Mr. Riggs has alleged sufficient facts from which to conclude that
the harm involved was foreseeable”); Lourcey v. Estate of Scarlett, No. M2002-00995-
COA-R3-CV, 2003 WL 21525259, at *3 (Tenn. Ct. App. July 8, 2003) (reversing dismissal
on foreseeability grounds).
In the present case, Focus Design argues that it was not aware that Southland
Constructors called Mitchell Plumbing to fix the sewer line problem. Plaintiffs respond
that this assertion of ignorance is disputable. They also allege that Focus Design should
have known of the allegedly hazardous condition of the excavated soil, and should have
discovered and been aware of the unattached sewer line. Moreover, Plaintiffs allege that
Southland Constructors acted as Focus Design’s agent, a contention Focus Design denies,
but which must be accepted as true at the motion-to-dismiss stage.2 Additionally, Plaintiffs
have alleged direct conduct, or lack thereof, by Focus Design, which it argues was a cause
of Decedent’s injuries, by, according to the complaint, “[f]ailing to close the adjacent
pavement and parking lot to vehicles while the excavation was occurring. Having failed
to close the parking lot to vehicles and traffic, vibrations . . . from vehicles were a
substantial factor in causing the trench wall to give way and cave in.”
In Cullum, the Supreme Court was also presented with a case where the trial court
dismissed a complaint upon its finding that the defendant did not have a duty of reasonable
care under the circumstances. The Court’s conclusory observations are pertinent and apt
to the present case:
Assuming, as we must at this stage of the proceeding, that the Cullums’
allegations are true, the harm caused by Ms. McCool was reasonably
foreseeable.
* * *
2
Focus Design also argues that we should apply the “independent contractor rule” that, generally,
“an employer or general contractor is not ordinarily liable for the negligence of an independent contractor,”
quoting Wilson v. Thompson Const. Co, 86 S.W.3d 536, 541 (Tenn. Ct. App. 2001). Both parties recognize
on appeal that this issue was raised but not addressed by the trial court. We note in passing that although
Focus Design may continue to allege and argue comparative fault as a defense, Plaintiffs’ action is based
on much more than simply any alleged negligence of the subcontractor Mitchell Plumbing or its employee,
Decedent. Consequently, the independent contractor rule does not provide a ground to dismiss the
complaint for negligence.
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“As a practical matter, a court serves as a gate-keeper and may exclude a
claim only if it finds, as a matter of law, that the defendant does not owe a
duty to the plaintiff.” Satterfield, 266 S.W.3d at 368. We do not shut the
gate on the Cullums’ claims. But, we emphasize the limited nature of our
holding, which turns in large part on its procedural posture. There has been
no discovery, no trial and no decision by a factfinder. We are only reviewing
the sufficiency of the allegations in the Cullums’ complaint, which we must
accept as true. Our decision at this early stage of the case is not an evaluation
of the likelihood of success on the merits of the claim. We do not know what
either party will be able to prove when this matter is heard on the merits. We
are simply holding that at this stage of the proceedings, Wal-Mart cannot
show as a threshold matter of law that it did not have a duty to protect its
patron, Ms. Cullum.
432 S.W.3d at 835, 838-39. As did the Cullum Court, we reverse the judgment of the trial
court because the Plaintiffs have made a threshold showing of foreseeability. Accepting
the allegations of the complaint and reasonable inferences therefrom as true, dismissal was
unwarranted.
V. CONCLUSION
The judgment of the trial court is reversed and the case remanded for such further
actions as may be necessary, consistent with this opinion. Costs on appeal are assessed to
the appellee, Focus Design Builders, LLC, for which execution may issue if necessary.
______________________________________
KRISTI M. DAVIS, JUDGE
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