IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

October 13, 2009 Session

LaFRANCINE GIBSON, as Surviving Relative and Next Friend of

GEORGIA JONES, Deceased v. METRO COMMUNITY CARE HOME,

INC., ET AL.

Direct Appeal from the Circuit Court for Shelby County

No. CT-002341-06 Rita L. Stotts, Judge

No. W2008-02417-COA-R3-CV - Filed December 15, 2009

The trial court awarded summary judgment to Defendant common carrier, finding that Defendant

had no notice that Decedent was mentally incapacitated and holding that Defendant had no duty to

assess or probe Decedent in order to discover a latent or non-apparent psychological condition. We

affirm.

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

Remanded

DAVID R.FARMER,J., delivered the opinion of the court, in which ALAN E.HIGHERS,P.J.,W.S., and

HOLLY M. KIRBY, J., joined.

Les Jones, R. Porter Feild and Frank B. Thacher, III, Memphis, Tennessee, for the appellant,

LaFrancine Gibson.

Christopher S. Campbell and Michael F. Rafferty, Memphis, Tennessee, for the appellees, Yellow

Cab Company.

Linda J. Mathis, Memphis, Tennessee, for the Appellee, Wassie W. Wassie.

OPINION

This is an action for personal injury and wrongful death. Decedent Georgia Jones (Ms.

Jones) was an 83-year old resident of Metro Community Care Home (“Metro Care”), an independent

living facility located at 1328 Mississippi Boulevard in Memphis. Ms. Jones suffered from dementia

and had a history of becoming disoriented and confused. On September 2, 2005, she was transported

by ambulance from Metro Care to the Regional Medical Center at Memphis (“the Med”) with

complaints of abdominal and chest pain. A physical exam performed at the Med revealed that Ms.

Jones was “not oriented to place/date/time.” She was discharged on September 6. A licensed social
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worker, Eva Arnold (Ms. Arnold), an employee of the Med, was assigned to coordinate Ms. Jones’

discharge.

Ms. Arnold called Yellow Cab Company (“Yellow Cab) to transport Ms. Jones back to Metro

Care. Ms. Arnold provided Ms. Jones with a voucher, or third party payer slip, reciting 1328

Mississippi as Ms. Jones’ destination and a charge of $7.80. Once inside the taxi, Ms. Jones

instructed the cab driver, Mr. Wassie W. Wassie (Mr. Wassie), to take her to 662 Hollywood Street,

where she once had lived. Ms. Jones told Mr. Wassie that she did not have a key to 1328

Mississippi; pointed to the house on Hollywood where she wanted to be delivered; and Ms. Jones

exited the taxi and walked up to the front door of the home. Mr. Wassie watched Ms. Jones walk

up to the front door and drove away after a child opened the front door. Ms. Jones was later found

dead on the front porch of the home; the cause of death was determined to be cardiac arrest.

In May 2006, Plaintiff LaFrancine Gibson (Ms. Gibson), acting as Ms. Jones’ surviving

relative and next friend, filed a complaint for personal injury and wrongful death in the Circuit Court

for Shelby County. Ms. Gibson named Metro Community Care Home, Inc.; Shelby County Health

Care Corp.; Yellow Cab Company; Checker Cab Company of Memphis; and Dennis Blanker as

Defendants. Dennis Blanker was voluntarily dismissed in August 2006, and Mr. Wassie was added

as a Defendant by consent. The trial court entered a consent order dismissing Metro Care with

prejudice in August 2008. In September 2008, the trial court entered a consent order of compromise,

settlement and release as to Shelby County Health Care Corp. d/b/a the Med. Checker Cab also was

dismissed by consent order. 

Defendants Yellow Cab and Mr. Wassie moved for summary judgment in June 2008. In their

motion, Defendants stated that, with respect to them, the lawsuit involved a dispute as to whether

Ms. Jones’ death was caused by the failure to deliver her to the Mississippi Boulevard address as

opposed to the Hollywood address. In their statement of undisputed facts, they asserted that neither

Ms. Arnold nor any other employee of the Med or of Metro Care informed Mr. Wassie of Ms. Jones’

medical condition or mental capacity, or the lack thereof. They further referenced Mr. Wassie’s

deposition in support of their assertion that Ms. Jones did not appear confused. In her response, Ms.

Gibson asserted that a genuine issue of material fact existed as to whether Defendants “took all

practical measures to care for Ms. Jones while in their transit.” She asserted that Defendants did not

exercise their utmost diligence, skill and foresight consideringMs. Jones’ age and infirmity, and that

a genuine issue of material fact existed with respect to whether Defendants breached their heightened

duty of care to Ms. Jones. Ms. Gibson contended that Defendants’ own procedural guidelines

required Mr. Wassie to check with the dispatcher before taking Ms. Jones to an address which

differed from that on the voucher. She also asserted that Defendants had failed to affirmatively

negate the element of proximate cause.

The trial court entered summary judgment in Defendants’ favor September 23, 2008. In its

order, the trial court stated that Defendants had no notice of Ms. Jones’ mental incapacity and had

“no duty to assess or probe Ms. Jones to learn of her latent or non-apparent psychological

conditions.” Ms. Gibson filed a timely notice of appeal to this Court.
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Issues Presented

Ms. Gibson presents the following issues for our review:

1. Did the Lower Court err in defining the duty owed by a common carrier to its

passenger?

2. Did the Lower Court err in finding that reasonable minds could not disagree

as to whether Defendants breached the duty they owed to Georgia Jones and

that Defendants were therefore entitled to summary judgment?

3. Should the trial court have found that Defendants’ motion for summary

judgment did not affirmatively negate the essential element of causation?

4. Should the trial court have found that reasonable minds could disagree as to

whether Defendants’ negligence was the proximate cause of injury and death

to Georgia Jones?

Standard of Review

We review a trial court’s award of summary judgment de novo, with no presumption of

correctness, reviewing the evidence in the light most favorable to the nonmoving party and drawing

all reasonable inferences in that party’s favor. Martin v. Norfolk Southern Ry. Co., 271 S.W.3d 76,

84 (Tenn. 2008) (citations omitted). Summary judgment is appropriate only where the “pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show

that there is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Id. at 83 (quoting Tenn. R. Civ. P. 56.04). The burden is on the

moving party to demonstrate that there are no genuine issues of material fact and that it is entitled

to judgment as a matter of law. Id. (citations omitted).

After the moving party has made a properly supported motion, the nonmoving party must

establish the existence of a genuine issue of material fact. Id. (citations omitted). To satisfy its

burden, the nonmoving party may: (1) point to evidence of over-looked or disregarded material

factual disputes; (2) rehabilitate evidence discredited by the moving party; (3) produce additional

evidence that establishes the existence of a genuine issue for trial; or (4) submit an affidavit asserting

the need for additional discovery pursuant to Rule 56.06 of the Tennessee Rules of Civil Procedure.

Id. (citations omitted). The court must accept the nonmoving party’s evidence as true, resolving any

doubts regarding the existence of a genuine issue of material fact in that party’s favor. Id. (citations

omitted). A disputed fact that must be decided to resolve a substantive claim or defense is material,

and it presents a genuine issue if it reasonably could be resolved in favor of either one party or the

other. Id. (citations omitted). 
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Analysis

The trial court in this case awarded summary judgment to Defendants upon determining that

Defendants had no notice of Ms.Jones’ mental infirmity and that they had no duty to independently

assess or probe Ms. Jones in order to determine whethershe was mentally competent to direct them

to convey her to the Hollywood address rather than the address recited on the voucher. Duty is the

first element that must be determined in an action for negligence. White v. Metro. Gov’t of Nashville

and Davidson County, 860 S.W.2d 49, 51 (Tenn. Ct. App. 1993)(citations omitted). Duty for the

purposes of a negligence claim is the obligation recognized by the law to conform to a particular

standard of care in order to protect against an unreasonable risk of harm to another. McClung v.

Delta Square Ltd., 937 S.W.2d 891, 894 (Tenn. 1996) “It is a reflection of society’s contemporary

policies and social requirements concerning the right of individuals and the general public to be

protected from another’s conduct.” White, 860 S.W.2d at 51. The determination of the existence

of a duty is a question of law. E.g., Draper v. Westerfield, 181 S.W.3d 283, 291 (Tenn.

2005)(citation omitted). We review the trial court’s determinations on questions of law de novo,

with no presumption of correctness. Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000). Once the

court has determined that the defendant in a negligence action owes plaintiff a duty, the question of

whether the defendant has breached his duty and thereby caused plaintiff's injury are matters to be

determined by the finder of fact. Patterson-Khoury v. Wilson World Hotel-Cherry Road, 139

S.W.3d 281, 285 (Tenn. Ct. App 2003). With this standard of review in mind, we turn to whether

the trial court erred by concluding that Defendants “had no duty to assess or probe Ms. Jones to learn

of her latent or non-apparent psychological conditions.” 

Duty to Assess for Non-apparent Conditions

In her brief to this Court, Ms. Gibson asserts, “[b]ecause the law recognizes a specific and

heightened duty attaches to common carriers by virtue ofthe special relationship they hold with their

passengers, the trial court erred by finding that ‘plaintiff must show that Mr. Wassie and Yellow Cab

Company had notice of Ms. Jones’ latent or non-apparent psychological conditions’ in order to show

the existence of a duty.” Defendants, on the other hand, argue that this position would expand the

duty of a common carrier beyond that of an insurer of their passengers’ well-being. They assert that

the position advocated by Ms. Gibson would require taxicab drivers to make “an independent and

expert assessment of a passenger’s mental status based solely on the passenger’s age and limited

physical ability to ambulate.”

It is well-settled that all persons have a broad duty to use reasonable care in order to avoid

causing foreseeable injury to others. E.g., Draper, 181 S.W.3d at 291 (citation omitted). It is also

well-settled that common carriers owe their passengers a heightened duty of care and that,

“[c]onsistent with the practical conduct of their business, they must exercise the utmost diligence,

skill, and foresight, to provide for their passengers’ safety.” White v. Metro. Gov’t of Nashville and

Davidson County, 860 S.W.2d 49, 52 (Tenn. Ct. App. 1993) (citing Schindler v. Southern Coach

Lines, Inc., 188 Tenn. 169, 173-74, 217 S.W.2d 775, 778-79 (1949); Memphis St. Ry. v. Cavell, 135

Tenn. 462, 465, 187 S.W. 179, 180 (1916); Oliver v. Union Transfer Co., 17 Tenn. App. 694, 699,
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71 S.W.2d 478, 481 (1934)). When a passenger’s age or infirmity is apparent from their appearance,

common carriers will be held to a higher standard of care. Id. However, common carriers are not

insurers of their passengers’ safety. Id. 

In this case, it is undisputed that Mr. Wassie was not informed by Ms. Arnold of Ms. Jones’

medical condition or her compromised mental capacity. Although Ms. Jones was elderly and

obviously had been hospitalized, Defendants undisputedly had no knowledge of Ms. Jones’ hospital

records or medical history. Ms. Gibson, however, asserts that, in light of the heightened duty of care

imposed on a common carrier, she was not required to demonstrate that Defendants had notice of

Ms. Jones’ impaired mental capacity in order to demonstrate that Mr. Wassie had a duty to deliver

Ms. Jones to the Mississippi Boulevard address provided on the voucher. She further asserts that

Yellow Cab’s guidelines for taxi drivers with respect to voucher contract trips evidence this duty.

We turn first to Ms. Gibson’s assertion that Yellow Cab’s guidelines demonstrate that Mr.

Wassie had a duty to seek direction from Yellow Cab before conveying Ms. Jones to an address

other than that on the voucher. Defendants assert that the section ofthe guidelines referred to by Ms.

Gibson are not relevant to determine the existence of a duty to a passenger, but to billing procedures.

Although not controlling, company rules are admissible to ascertain what the company’s employees

should have done in a particular situation. Id. 

As Ms. Gibson asserts, Yellow Cab’s “Guidelines for Taxi Drivers” states:

Remember that the passenger is seldom the paying customer on a (voucher) contract

trip. Only the paying customer is authorized to direct you, authorize stops, waiting

time, or change the destination of the trip. Unlike your cash trips where the

passenger is also usually the customer you can not bill a difference for following the

passengers directions without the clients approval. 

When uncertain, make a voice request and ask the dispatcher for guidance. You are

not alone. 

We cannot agree with Ms. Gibson’s assertion that this provision in Yellow Cab’s guidelines

evidence a duty to Ms.Jones to deliver her to the Mississippi Boulevard address and not an alternate

address provided by her. Rather, the provision relates to the extent to which a driver may expect to

receive payment for a voucher trip under “charge accounts [established] for many organizations,

businesses and only a very few individuals for a convenience to drivers.” This notice to drivers

appears in the guidelines section entitled “charge tickets/contracts.” The section states that “[d]rivers

may honor these vouchers as cash toward their check off,” and that “[t]he Yellow Cab Charge Ticket

is, when utilized correctly, a simple and self-explanatory form to expedite correct billing.” The

section further states, “[a]ny charge tickets with incomplete or erroneous information may be billed

back to you, so please check them carefully. It is your money.”
We note that this case does not involve any contractual obligation between Yellow Cab and the Med or Metro

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Care to deliver patients to an address provided by them. 

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We agree with Defendants that the paragraph relied on by Ms. Gibson, when read within the

context of the guideline section, pertains to billing procedures. The section outlines the extent to

which the driver may expect to be paid for a trip exceeding that authorized by the voucher. This

paragraph does not prohibit a driver from conveying a passenger to an alternate address, and it does

not evidence a legal duty to independently assess a passenger’s mental capacity to provide an

alternate address where the driver has no notice of the passenger’s incapacity or mental infirmity.

We turn, then, to whether Defendants owed Ms. Jones a duty to independently assess whether

she was mentally competent to direct Mr. Wassie to take her to the Hollywood address rather than

the Mississippi Boulevard address recited on the voucher. This question requires us to consider

whether a common carrier owes a passenger a duty to assess that passenger for latent, non-apparent

mental or psychological conditions which might impede the passenger’s mental capacity. Common

carriers will be held to a higher standard of care with regard to aged or infirm passengers whose age

or infirmity is apparent from their appearance. White v. Metro. Gov’t of Nashville and Davidson

County, 860 S.W.2d 49, 52 (Tenn. Ct. App. 1993)(citations omitted). This duty does not extend,

however, to infirmities which are not apparent in the absence of actual knowledge. We must agree

with Defendants that, in the absence of notice of Ms. Jones’ impaired mental capacity, Defendants

had no dutyto engage in an independent assessment requiring specialized skill or experience in order

to discover a latent, non-apparent infirmity.1

Neither a passenger’s age nor physical disability would relieve a taxicab driver of his

obligation to convey the passenger to their requested destination. Indeed, section 6-80-52 of the

Memphis Ordinances provides:

Every driver of a taxicab shall have the right to demand payment of the regular fare

in advance and may refuse employment unless so paid, but no driver of a taxicab

shall refuse or neglect to convey any orderly person or persons upon request

anywhere in the city, unless previously engaged or unable to do so.

Although actual notice or apparent mental impairment or incapacity would give rise to a higher duty

to convey a passenger to an address provided by a responsible third party, we agree with Defendants

that, in the absence of notice or apparent impairment, to impose a legal duty on taxicab drivers to

probe and assess each passenger’s mental capacity to instruct the driver to convey them to a valid

address would be impractical and unreasonable. As we noted in White, the court must determine the

existence of a duty “based on the evidence and mixed considerations of logic, common sense, and

public policy.” White, 860 S.W.2d at 51-52. In this case, we agree with the trial court’s conclusion

that, in the absence of any contractual obligation, corporate policy, instruction by the Med, or notice

or appearance of mental infirmity, Defendants did not have a duty to independently assess Ms. Jones’

mental capacity to instruct Defendants to convey her to a valid address within the city. In the

absence of notice or apparent mental infirmity, confusion orincapacity, it would defycommon sense
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to require a taxicab driver to assess and probe a passenger’s capacity to direct conveyance to a valid

address merely on the basis of the passenger’s advanced age or recent discharge from hospitalization.

Existence of a Genuine Issue of Material Fact Regarding Apparent Infirmity

We must consider, however, whethersummary judgment was appropriate in this case in light

of Ms. Gibson’s assertion that Ms. Jones’ mental infirmity was apparent. We agree with Defendants

that Mr. Wassie could not be charged with knowledge of Ms. Jones’ medical history. It is also

undisputed in this case that Mr. Wassie was not advised of Ms.Jones’ mental incapacity or dementia

by personnel at the Med. In her memorandum in opposition to Defendants’ motion for summary

judgment, however, Ms. Gibson asserted that a genuine issue of material fact exists with respect to

whether Ms. Jones exhibited signs of dementia or confusion while in Defendants’ taxicab. Ms.

Gibson asserted that Mr. Wassie’s testimony that Ms. Jones was lucid and competent when she was

in the taxicab “strains belief since it is directly contrary to the medical diagnoses she received in the

several days before at The Med.” She asserted that, in light of Ms. Jones’ medical records and

history, Mr. Wassie’s testimony that Ms. Jones was lucid while in the taxicab was not reasonable.

As noted above, there is no dispute in this case that Defendants, a common carrier, owed Ms.

Jones a high standard of care. There is nothing in the record to indicate, however, that Ms. Jones’

mental infirmity or diminished mental capacity was apparent when she was in Mr. Wassie’s

presence. On the contrary, the record indicates only that Ms. Jones required some physical assistance

to enter the taxicab.

Further, we cannot agree with Ms. Gibson that Ms. Jones’ age and recent hospitalization put

Mr. Wassie on notice of diminished mental capacity. We decline to extend the duty of a common

carrier to its passenger so far as to require taxicab drivers to inquire about the mental health or

capacity of their passengers merely on the basis of age. In this case, Mr. Wassie watched Ms. Jones

walk up to the home on Hollywood after exiting the taxicab, and he waited until the door was opened

to her before departing. He clearly took her advanced age into account. Ms. Gibson has not pointed

to any evidence in the record that would create a genuine issue of material fact regarding whether

Ms. Jones’ diminished mental capacity was apparent to one without knowledge of her medical

history.

Holding

In light of the foregoing, we affirm summary judgment in favor of Defendants. Costs of this

appeal are taxed to Appellant, LaFrancine Gibson, and her surety, for which execution may issue if

necessary.

___________________________________ 

DAVID R. FARMER, JUDGE