Allen E. Hasty, Judy Darlene Hasty v. Thomas R. Throneberry, Ind., D/B/A Throneberry Properties and Sharon Clutter

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
ALLEN E. HASTY and wife, )
JUDY DARLENE HASTY, )
) FILED
Plaintiff/Appellee, ) Rutherford Circuit No. 31613
) December 2, 1998
VS. ) Appeal No. 01A01-9709-CV-00531
) Cecil W. Crowson
THOMAS R. THRONEBERRY, Ind. ) Appellate Court Clerk
and d/b/a THRONEBERRY )
PROPERTIES and SHARON )
CLUTTER, )
)
Defendant/Appellant. )
APPEAL FROM THE CIRCUIT COURT OF RUTHERFORD COUNTY
AT MURFREESBORO, TENNESSEE
THE HONORABLE ROBERT E. CORLEW, JUDGE
L. GILBERT ANGLIN
Murfreesboro, Tennessee
Attorney for Appellant
LARRY D. BRANDON
Murfreesboro, Tennessee
Attorney for Appellee
AFFIRMED
ALAN E. HIGHERS, J.
CONCUR:
W. FRANK CRAWFORD, P.J., W.S.
DAVID R. FARMER, J.
Defendant Thomas R. Throneberry appeals the trial court’s judgment in the amount of $6,000
entered in favor of Plaintiff/Appellee Allen E. Hasty after a jury trial. For the reasons hereinafter
stated, we affirm the trial court’s judgment.
A transcript of the evidence at trial does not appear in the record on appeal; however, the
record does contain a Statement of the Evidence which was filed by Throneberry and later approved
by the trial court. See T.R.A.P. 24(c). Although the evidence contained therein is sparse, the
Statement of the Evidence reveals that Hasty was a maintenance worker employed by Throneberry.
As compensation, Hasty received $220 per week in salary plus the use of an apartment in
Murfreesboro. In March 1992, Hasty was involved in an automobile accident while operating a
truck owned by his employer, Throneberry. Thereafter, a dispute arose between the parties as to
whether Hasty had permission to drive the truck at the time of the accident. As a result of this
dispute, Throneberry fired Hasty on March 23, 1992.
On March 24, 1992, Throneberry verbally notified Hasty that he would have to move from
the apartment because he no longer worked for Throneberry. Five days later, on March 29, 1992,
Throneberry caused a written notice to be placed on the door of the apartment directing Hasty to
vacate the apartment by 12:00 midnight of the following day. On March 30, 1992, Throneberry
notified Hasty that the electric bills for the apartment remained unpaid and that Throneberry would
cause the utilities to be turned off if Hasty did not pay them by 1:00 p.m. that day. The utilities for
the apartment were in Throneberry’s name. The next day, April 1, 1992, Throneberry caused the
electricity to the apartment to be turned off. As a result, Hasty was forced to stay in a hotel. On
April 6, 1992, Throneberry changed the locks on the apartment, thereby preventing Hasty from
gaining access to the apartment. Another employee of Throneberry later gave Hasty permission to
enter the apartment to retrieve his personal belongings.
Hasty subsequently was treated by an orthopedic surgeon for pain in his right shoulder.
Hasty also complained of chronic headaches and was referred to a neurologist. The neurologist
diagnosed Hasty as having post-traumatic headaches, and he, in turn, referred Hasty to a psychiatrist
for further treatment. The psychiatrist, Dr. Ravi Singh, treated Hasty for major depression and Post-
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Traumatic Stress Disorder (PTSD). Dr. Singh concluded that these injuries were caused by a
combination of factors, including the March 1992 automobile accident, Hasty’s loss of employment,
and Hasty’s ouster from his apartment by Throneberry’s actions of having the electricity turned off
and locking Hasty out of the apartment. Symptoms of Hasty’s PTSD included daily panic attacks
and headaches.
As a result of his injuries, Hasty filed this action against Throneberry in March 1993.1 In
essence, the allegations of Hasty’s complaint asserted claims for defamation, outrageous conduct,
and wrongful eviction. The complaint specifically alleged that, by his actions, Throneberry
willfully, maliciously, and intentionally caused physical, emotional, and economic harm to Hasty.
Throneberry filed a motion for summary judgment contending, inter alia, that Hasty could
not maintain an action for wrongful eviction against him because the parties’ relationship was that
of employer-employee rather than landlord-tenant. The trial court denied Throneberry’s motion as
to Hasty’s wrongful eviction claim, but the court granted the motion as to the claims for defamation
and outrageous conduct and, accordingly, dismissed these claims.
Pending these proceedings, Hasty pursued a workers’ compensation claim for the injuries
that he suffered as a result of the March 1992 automobile accident. Hasty’s claimed injuries
included depression and PTSD. Throneberry and his workers’ compensation insurance carrier
denied that Hasty’s injuries were caused by the March 1992 automobile accident, but they agreed
to settle Hasty’s claim for the sum of $30,000. The amended settlement order entered in January
1996 indicated that Hasty’s psychiatrist, Dr. Ravi Singh, believed “many factors contributed to
[Hasty’s] depression and [PTSD].”
Before the trial on the wrongful eviction claim, Throneberry filed two motions in limine in
which he asked the trial court to exclude certain testimony of Dr. Ravi Singh concerning Hasty’s
depression and PTSD. As grounds for these motions, Throneberry contended that (1) Hasty already
had recovered workers’ compensation benefits for his alleged injuries and, thus, the exclusivity
1
Hasty’s wife also was a plaintiff, but the trial court’s judgment did not award her any damages and
she is no t a party to th is appea l.
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provisions of the Workers’ Compensation Law precluded him from recovering for his injuries in this
action, and (2) Dr. Singh’s testimony did not establish within a reasonable degree of medical
certainty that Hasty’s injuries were caused by Throneberry’s actions. Throneberry also moved to
amend his answer to assert the Workers’ Compensation Law as an additional defense. The trial court
subsequently denied Throneberry’s motions in limine and permitted the majority of Dr. Singh’s
deposition testimony to be read to the jury. The record does not reveal that the trial court ever ruled
on Throneberry’s motion to amend his answer.
At trial, Throneberry renewed his motions in limine to exclude Dr. Singh’s testimony relating
to Hasty’s PTSD. The trial court agreed that Hasty could not recover for that portion of his PTSD
caused by his work-related injury, but the court ruled that it would be a jury issue as to what portion
of Hasty’s injury was caused by his work-related injury and what portion was caused by
Throneberry’s conduct in the present case.
The trial court also permitted Hasty to amend his pleadings to conform to the evidence by
asserting a claim for intentional infliction of emotional distress. At the trial’s conclusion, the jury
returned a verdict finding that Throneberry acted wrongfully in locking Hasty out of his apartment
and/or in terminating his electric service and, further, that Hasty’s injuries were caused by
Throneberry’s actions. The jury found that Hasty was entitled to $500 in damages for the loss of his
personal property and $10,000 for his mental, emotional, and psychological damages. The jury
determined that fifty-five percent (55%) of these latter damages were caused by Throneberry’s
actions in the present case.
In accordance with the jury’s verdict, the trial court entered a judgment awarding Hasty
damages in the amount of $6,000. Throneberry filed a motion for new trial in which he raised the
same arguments that he had raised in his pre-trial motions. The trial court denied the motion, and
this appeal followed.
Throneberry first contends, on the authority of Crooms v. Reichman, 8 Tenn. Civ. App. 87
(1918), that he and Hasty had an employer-employee relationship rather than a landlord-tenant
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relationship and, thus, that Hasty could not maintain an action against him for wrongful eviction.
In Crooms, the court held that, when an employee occupies his employer’s premises as an incident
to his employment, this circumstance does not transform the employee into a tenant of his employer.
Crooms, 8 Tenn. Civ. App. at 90. Instead, the parties’ relationship remains that of employer-
employee. In the event of his discharge from employment, the employee becomes a trespasser, and
the employer, as the owner of the premises, has the right to enter the premises and to remove the
employee’s possessions therefrom. Id.
Contrary to Throneberry’s suggestion, the court’s holding in Crooms did not preclude Hasty
from maintaining an action against Throneberry based on the latter’s allegedly wrongful conduct in
ousting Hasty from the premises. Although the court in Crooms followed the rule that the
discharged employee was a trespasser without the rights of a tenant, the court also recognized that
the employer’s right to remove the employee and his belongings from the premises was not without
limitations. The court explained:
[W]e proceed to lay down the following as our conception of the
measure of duty or care upon the part of a landowner who rightfully
enters to remove the goods of a trespasser, . . . . Expressed in familiar
terms extracted from our numerous decisions, the duty owing the
occupant and trespasser is that of seeing that he suffer no injury or
loss as the result of intentional, willful or wanton conduct. It is
wholly illogical to say that the landlord in such case must enter upon
his premises with due care and solicitude for the property of the
discharged tenant, in view of a proposition of unassailable soundness
that the trespasser at the moment is challenging the right of the
enterer and necessarily provoking anger and counter force. Hence the
imperativeness of laying down the rule that the landlord in such case
is not chargeable with what might be deemed reasonable and ordinary
care implied and observed in ordinary social and legal relations, but
that he must simply refrain from doing or inflicting unnecessary, or
willful or wanton injury to the goods of the occupant.
That the landlord must refrain from deliberately destroying
the goods of his tenant and must do no unnecessary act resulting in
their destruction, nor pursue a course of such recklessness of
consequences as to amount to willfulness is a proposition which must
be accepted for the well-known reason that the law does not tolerate
revenge nor acquiesce in the infliction of punishment upon a party
who has been guilty of wrongdoing. There is no forfeiture of goods
and rights because of such conduct; hence the goods must not be
recklessly or wantonly broken up and, booted about nor shamelessly
or unnecessarily exposed to hazards.
Crooms, 8 Tenn. Civ. App. at 92-93.
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In accordance with Crooms, Throneberry had a duty to refrain from any intentional, willful,
or wanton conduct which would cause injury or loss to Hasty. In a more recent opinion, our supreme
court has reaffirmed the existence of such a duty, holding that:
The owner of realty owes to a trespasser the duty not to injure him
wilfully, maliciously or intentionally. [Citations omitted].
“One acts wantonly within the rule that a property owner
owes to a trespasser only the duty to refrain from wilful, wanton and
reckless conduct, when he inflicts injury intentionally or acts with
complete indifference to consequences.”
Yarbrough v. Potter, 207 S.W.2d 588, 589 (Tenn. 1948) (citing Cohen v. Davies, 25 N.E.2d 223(Mass. 1940)).
In his amended complaint, Hasty alleged that Throneberry acted intentionally, willfully, and
maliciously in causing the electricity in Hasty’s apartment to be terminated and in changing the locks
on the apartment so that Hasty could not enter the apartment to retrieve his personal belongings.
Hasty further alleged that, in taking these actions, Throneberry intentionally, willfully, and
maliciously intended to cause harm to Hasty and his family. In light of these pleadings, we conclude
that the trial court correctly refused to dismiss Hasty’s complaint on the basis of Crooms. Even if
Crooms precluded Hasty from maintaining a wrongful eviction action against Throneberry, Hasty’s
amended complaint contained sufficient allegations to state a cause of action under the alternate
theory of recovery set forth in Crooms, i.e. that, in ousting Hasty from the premises, Throneberry
engaged in intentional, willful, or wanton conduct such as to cause injury or loss to Hasty. The
jury’s verdict further supported this theory because the jury found that Throneberry wrongfully
caused $500 in damages to Hasty’s property.
We note that Throneberry’s appeal fails to challenge the merits of Hasty’s claim under this
alternate theory of recovery. Moreover, even if the court’s holding in Crooms prevented Hasty from
maintaining an action for wrongful eviction, it did not prevent him from maintaining an action for
intentional infliction of emotional distress. As previously indicated, the trial court allowed Hasty
to amend his pleadings to assert such a claim, and Throneberry does not appeal this aspect of the trial
court’s ruling. In the absence of the relevant portions of the transcript or a copy of the trial court’s
charge to the jury, we must presume that the court fully and correctly charged the jury on the parties’
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respective theories of the case and on the applicable law. Bennett v. Sanders, 685 S.W.2d 1, 2
(Tenn. App. 1984); Pickard v. Ferrell, 325 S.W.2d 288, 293 (Tenn. App. 1959).
Throneberry also contends that the trial court erred in permitting Hasty to present proof that
he suffered from PTSD because (1) Hasty previously recovered for this injury in a workers’
compensation proceeding and (2) the evidence failed to establish within a reasonable degree of
medical certainty that Hasty’s injury was caused by Throneberry’s allegedly tortious conduct.
Throneberry’s first objection to this evidence is based on the exclusivity provisions of the
Workers’ Compensation Law. As pertinent, that law provides that:
The rights and remedies herein granted to an employee subject to the
Workers’ Compensation Law on account of personal injury or death
by accident, including a minor whether lawfully or unlawfully
employed, shall exclude all other rights and remedies of such
employee, . . . at common law or otherwise, on account of such injury
or death.
T.C.A. § 50-6-108(a) (1991). In interpreting this provision, our supreme court has held that, “in the
field of workmen’s compensation law, and in suits by a worker against his employer, the initial
injury is the cause of all that follows, even where there is superimposed upon the original injury, a
new, or additional or independent injury during the course of treatment, negligent or otherwise.”
McAlister v. Methodist Hosp., 550 S.W.2d 240, 245 (Tenn. 1977). In McAlister, a hospital
employee suffered an on-the-job injury to her back. McAlister, 550 S.W.2d at 241. The employee
received treatment for her injury from the hospital which employed her. Contending that the
hospital’s treatment was negligent, the employee thereafter brought a malpractice action against the
hospital. Id. The supreme court dismissed the action, however, holding that the Workers’
Compensation Law provided the employee’s exclusive remedy. Id. at 245.
The supreme court’s holding in McAlister arguably would preclude claims such as those
brought in the present case. Hasty’s initial injury was caused by an on-the-job automobile accident
for which he received workers’ compensation benefits. Hasty’s injury later was aggravated by the
allegedly tortious conduct of Throneberry. Thus, the facts of this case are analogous to those found
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in McAlister, where the employee’s on-the-job injury was aggravated by her employer’s subsequent
negligence.
Nevertheless, we conclude that the supreme court’s holding in McAlister did not prevent
Hasty from recovering for his additional injuries in this case. We do not view the supreme court’s
McAlister decision as overruling another line of case precedent which holds that the exclusivity
provisions of the Workers’ Compensation Law do not apply if the plaintiff alleges and proves that
the defendant intended to cause his injury. Cooper v. Queen, 586 S.W.2d 830, 833 (Tenn. App.
1979). In the present case, Hasty’s complaint specifically alleged that, by his tortious conduct,
Throneberry intended to cause harm to Hasty. If proven, these allegations were sufficient to support
a common-law action for damages against Throneberry. Blair v. Allied Maintenance Corp., 756
S.W.2d 267, 270-71 (Tenn. App. 1988).
As an aside, we question whether the evidence presented supported Hasty’s claim for
intentional infliction of emotional distress. We note that this was essentially the same claim that was
dismissed by the trial court prior to trial. “Intentional infliction of emotional distress and outrageous
conduct are not two separate torts, but are simply different names for the same cause of action.”
Bain v. Wells, 936 S.W.2d 618, 622 n.3 (Tenn. 1997). On appeal, however, Throneberry has not
challenged the sufficiency of the evidence to support this claim, and, thus, we need not further
address the issue.
As his second basis for objecting to the evidence of PTSD, Throneberry contends that the
testimony of Hasty’s medical expert, Dr. Ravi Singh, was insufficient to show that Hasty’s injury
was proximately caused by Throneberry’s conduct. See Porter v. Green, 745 S.W.2d 874, 877
(Tenn. App. 1987) (holding that, where physician testifies concerning plaintiff’s injury, physician’s
opinion must be reasonably certain as to cause of injury). In support of this argument, Throneberry
points to testimony where Dr. Singh lists the causes of Hasty’s PTSD, such as Hasty’s automobile
accident, being fired from his job, and his loss of income, but fails to mention the tortious conduct
allegedly committed by Throneberry in the present case.
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We conclude that this argument is without merit. On one occasion, Dr. Singh did fail to
specify the tortious conduct involved in the present case as being the cause of Hasty’s injury;
however, the remainder of Dr. Singh’s testimony is replete with instances where Dr. Singh
adequately described the pertinent conduct:
Q. . . . Would you tell me the psychological trauma that
you believe stimulated his condition?
A. The psychological trauma is that he lost his job, and
he had no income. He was locked out of his apartment; his lights
were cut off.
....
Q. All these factors that we’ve discussed in your
deposition are contributing factors in the impairment rating that
you’ve given?
A. According to the history of Mr. Hasty, yes, sir.
Q. Doctor, is it your opinion based upon a reasonable
degree of medical certainty that there is a causal connection between
those factors that he related to you in his history and his permanent
impairment?
A. According to Mr. Hasty’s history, that’s what has
caused his impairment, caused his condition, depression.
....
Q. Is it a fair statement, Dr. Singh, that not one particular
event caused the depression and post-traumatic stress disorder, but a
combination of events?
A. Historically, what I see in Mr. Hasty’s history,
everything started after March of ‘92, whenever he had the accident
and lost the job.
....
Q. He told you that his lights were cut off?
A. Yes, sir.
Q. Is that a contributor or a stressor to both diagnoses?
A. Yes, sir.
....
Q. Dr. Singh, the stressors that I’ve asked you about, did
they occur over a period of time?
A. Yes, they occurred over a period of time.
....
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Q. The lights being turned of?
A. The lights being turned off and being locked out of the
apartment.
Q. And that goes back to the question I asked you. We’re
not talking about one causal factor that caused --
A. These are cumulative factors. One thing happened that
then --
Q. Are you saying these are cumulative factors, that
combined --
A. Combined; right.
Q. -- caused the two conditions that you’ve testified to?
A. Yes, sir.
Throneberry additionally criticizes Dr. Singh’s testimony because Dr. Singh was unable to
state what percentages of Hasty’s PTSD and depression were caused by the tortious conduct alleged
in the present action. We do not view this failure as being fatal to Hasty’s claim for damages. With
the adoption of comparative fault principles in this state, juries often are asked to apportion fault
where two successive torts result in one indivisible injury. See, e.g., Gray v. Ford Motor Co., 914
S.W.2d 464, 467 (Tenn. 1996). Such a determination is “a matter peculiarly within the province of
the jury,” and we decline to disturb the jury’s apportionment of liability in this case. Turner v.
Jordan, 957 S.W.2d 815, 824 (Tenn. 1997) (quoting Rowlands v. Signal Constr. Co., 549 So. 2d
1380, 1383 (Fla. 1989)).
The judgment of the trial court is hereby affirmed. Costs of this appeal are taxed to
Throneberry, for which execution may issue if necessary.
HIGHERS, J.
CONCUR:
CRAWFORD, P.J., W.S.
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FARMER, J.
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