### IN THE CO URT OF APPEALS OF TE NNE SS EE AT NASHVILL E Sep te m be r 17 , 20 09 Ses si on

RENEE L. J OHNS ON. v. G RAYSON ROWS ELL , E T A L


### .

Direc t Appeal from the Circ uit Court for Jackson Coun ty No. 1796-P -44 John D. Wootten, Jr., Judge

No. M2009- 00731-COA-R 3-CV - F iled October 27, 2009

This is a summary judgme nt case arising from a persona l injury lawsuit. Plaintiff/Appellant alleg ed liability on the part of Appellee delivery company arising from the neg lige nt acts of its driver. Finding that the driver was an independe nt contra ctor, and that the exceptions to the g ener al rule of non-liability on the part of the employ er of an independe nt c ontrac tor do not apply in this case , we aff irm the g rant of summar

y judgme nt in favor of

Appellee delivery

company

.

Tenn. R. App . P . 3. Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

J

. S T E V E N S T A F F O R D , J
., delivere d the opinion of the court, in which A L A N E. H I G H E R S , P.J
., W.S
., and H O L L Y M. K I R B Y , J ., joined.

Michae l B. Schweg ler, Ba rt Durha m and Bla ir Pierson Durha m, Nashville, Tenne ssee, for the Appellant, Rene e L . J ohnson.

Wil liam B. Jakes, Nashville, Te nnessee , for the A ppellee, E x press Courier

I nterna tional, I nc.

OP INION

The mate rial fa cts of this case are not disputed. On Dec ember 14, 2006, Appellant Rene e L

. J ohnson was injured when she was struc k by a 2004 GMC Safa

ri that was opera

ted by Gra

y son Rowsell. The vehicle involved was owned by Gra y son Rowsell’s fathe r, Eddie Rowsell. At the time of the acc ident, Ms. J ohnson was direc ting traff ic in the scope of her employ ment with the Tenne ssee Depa rtment of Transpor

tation, which was perf

orming construction work on Hig hway 85 in J ackson County , Tenne ssee.

On J anuar y 23, 2007, Ms. J ohns o n f

iled her initial complaint ag ainst Gra y son Rowsell, Eddie Rowsell, and Ex press Courier I nterna tional, I nc. (“ECI ”). An amende d complaint was filed on May 23, 2008. Ms. Rowsell alleg ed that Gr ay son Rowsell was g uilty of neglig ence in the operation of the vehicle, and that Eddie Rowsell was vicar iously liable for his son’s neg lige nce as the reg isteredowner of the vehicle. Concerning ECI ’s liability
, the complaint alleg ed that Gra y son Rowsell was “an authorized ag ent and/or repr esenta tive of...[ECI ], doing the business of...[ECI ], and in the scope of employ

ment with...[ ECI ]....” such that ECI should be held vicar iously li ab l e for Gra y son Rowsell’s neg lige nt acts. On Marc h 2, 2007, ECI filed its answe r, in which it denied that it was the employ er of Gra

y son Rowsell. ECI specific ally asser ts that Gra

y son Rowsell “wa s an independe nt contra ctor at all times pertinent to the occurre nce which i s the s ubject of this case. ” On Marc h 5, 2007, Gra y son Rowsell and Eddie Rowsell filed a joint answe r, i n which they denied the materia l alleg ations of the complaint.

ECI initially filed its motion for summary judgme nt on November 8, 2007. Howeve r, a final hear ing on the mot i o n wa s postponed pending additional discovery

. On Aug ust 2, 2008, Eddie Rowsell also filed a motion for summary judgme nt. The motions for summary judgme nt wer e hear d

on J anuar y 26, 2009. On Fe bruar y 6, 2009, t h e trial court enter ed an order g ranting summary judgme nt in favor of Eddie Rowsell. No appea l was taken from this order

. By order of Fe bruar y 11, 2009, the trial court g rante d summary judgme nt in favor of ECI
, specific ally finding that there was

no dispute of materia l fac t and that ECI was entitled to a judgme nt as a matter of law. On Marc h 26, 2009, the trial court enter ed an order on Ms. J ohnson’s motion for interlocutory appea l, in which the order s g ranting summary judgme nt wer e made final and appea lable pursuant to Tenn. R

. C i v

. P

. 5 4

. 0 2. Ms. J ohnson appea ls only the gra nt of sum mary judgme nt in favor of EC I
, and raises four issues for re view as state d in her brie f:

1. Can a packa g e deli v ery company avoid liability to a third party inj u re d due to neg lige nce of a delivery driver based solely upon a written indepe ndent contra ctor a g ree ment? 2. Does the packa g e delivery business i n v olve risk rec og nizable in advanc e of phy sical h ar m to others that is inhere nt in the delivery

wo rk i tself, such that the company is liable to a pedestria n injured when ne g lige ntly

struck by a deliver y driver? 3. Did ECI aff

irmatively neg ate all nece ssary elements of eac h of plaintiff’s theories of rec overy pled i n plaintiff’s first amende d complaint? 4. Did the plaintiff demonstrate triable issues of materia l fac t sufficie nt to defea t ECI ’s motion for summary judgme nt?

We p er ce i v e that the g rava men of this appea l is whether Gra y son Rowsell was an independe nt c ontrac tor or an employ ee of ECI

. We f irst note that a trial court' s decision to g rant a motion for summary judgme nt pr esents a question of law. Our revie w is there fore de novo with no presumption of corr ectne ss aff orded t o the trial court' s deter mination. Bain v. Wells
, 936 S.W .2d 618, 622 (Tenn.1997)

. I n evalua ting the trial court' s decision to g rant summary judgme nt, we revie w the evidenc e in the light most favor able to the nonmoving party and draw all rea sonable infere nces in the nonmoving party ' s favor

. Moo n ey v. Sneed
, 30 S.W .3d 304, 305-06 (Tenn. 2000); Byrd v. Hall , 847 S.W .2d 208, 210-11 (Te nn. 1993).

-2-When a motion for summary judgme nt is made, the moving party has the burden of showing

that “ther e is no g enuine issue a s to any materia l fac t and the moving party is entitled to judgment

as a matter of law.” Tenn. R. Civ. P. 56.04. I f the moving party ' s motion is proper ly supported, “[t] he burden of production then shifts to the nonmoving party to show that a g enuine issue of materia l fac t exis ts.” Hann an v. Allt

el Publ'g Co.
, 270 S.W .3d 1, 5 (Tenn. 2008) (citing B yr d
, 8 4 7 S .W.2d at 215). I n order to shift the burden of production, “the moving party must either aff irmatively neg ate

an essential element of the nonmoving party ' s claim or establish an aff irmative defe nse.” Hann an , 270 S.W .3d at 5. Howeve r, “[i] t is not enoug h for the moving party to challeng e the nonmoving party to ‘put up or shut up’ or even to cast doubt on a party ' s ability to prove an element at trial.” Id

. at 8. I nstead, the moving party has the more difficult task o f d em o n s t rating “that the nonmoving party cannot e stablish an essential ele ment of the c laim at trial.” Id . at 7.

Ind ependent Contract or

Tenne ssee c ourts have de fined a n “indepe ndent contra ctor” as:

[O] ne who, exercising an independe nt employ ment , contra cts to do

a piece of work acc ording to his own methods and without b ei ng

s u b j ect to control of his employ er, except as to the result o f h i s work.... Mr. Thompson, in his work upon Negl i gen ce, say s that “in

ever y case the decisive question i s , Ha d t h e defe ndant the rig ht to control in the g iv en particula r the conduct of the person doing the
wrong ? ” Thompson on Neg lige nce, 909.

P o t t er v. Tucker
, 688 S.W .2d 833, 836 (Tenn. Ct. App. 1985) (citing Powell v. V irgin i a Const ruction Co.
, 13 S.W

. 691 (Tenn. 1890)). As a g ener al rule, an employ er is not ordinarily liable for the ne g lige nce of

an indepe ndent contra ctor. Potter , 688 S.W . 2d at 835-36.

I n deter mining whether a person is an i n d ep endent contra ctor, our Supreme Court has outlined cer

tain fac tors that should be considere d. These fac tors include, but are not limit ed to, the following :

1. The rig ht to control the conduc t of the work;

2. The rig ht of termination; 3. The method of pa

y ment; 4. The fr eedom to sele ct and hire helper s; 5. The fur

nishing of tools and e quipment; 6. The self

-sche duling of

work hours; a

nd 7. The fr eedom to re nder se rvice s to other entities.

Beare Co. v. State
, 814 S.W .2d 715, 718 (Tenn. 1991) (citing Masiers v. Arrow Transfer & Storage Co. , 639 S.W .2d 654, 656 (Tenn.1982) ).

-3-Turning to the rec ord, Joi Schurman, CFO of EC I
, testified t hat EC I is an intra-/inter- state

delivery company that opera tes pursuant to the authority issued by state and fede ral re g ulatory
ag encie s including the Tenne ssee Depa rtment of Revenue and the U.S. Depa rt m en t of Transpor tation. At the time of the acc ident, ECI employ ed over 700 drivers who worke d out of 26 locations in the southeaster n United States. Most of these drivers, including Gra y son Rowsell, wer e require d to sign an “indepe ndent contra ctor ag ree ment.” The ag ree ment provides, in pertinent part, as follows:

CONTRACTOR NOT EMPL OYEE OF CARRI ER. I t is ex pressly

understood and ag ree d that CONTRACTOR is an I ndepende nt Contractor providing the Equipment and service s to cu s t omers of CARRI ER pursuant to this Ag ree ment. The parties further rec og nize that CONTRACTOR h as a signific ant financ ial investment in the Equipme nt and the driver service s provided here in, and that CONTRAC T OR has the exclusive rig ht to direc t and control the financ ial aspec ts o f CO N T RA CT O R’ S b u s in e s s o p e r a ti o n s , including the ability to ear n a prof it under this Ag ree ment.

(Emphasis in orig inal). Whil e we conce de that the exis tence of this ag ree ment does not mandate a finding that Gra

y son Rowsell was an independe nt contra ctor, Mr. Gra y son’s own tes ti mony supports this conclusion:

Q [to Gray son Rowsell] . You provided y our own ve hicle?

A. Corre ct.

Q. And y ou maintained it , provided the g as, t he ins uranc e, and any maintenanc e it neede d?

A. Corre ct.

Q. And y ou wer e responsible for control in the financial as p ects of
y our business, wer en’t y ou?

A. Corre ct.

Q. You wer e asked about the routes and the times and expectations. You could choose y our route, couldn’t y ou? I f a route was available
, y ou could bid on it or try

to ge t it or whateve r [] the proc ess was?

A. Yes, I could.

-4-Q. And if y ou wanted to hire y our own helper
, y ou could have done that as long as they complied with the contra ctual ag ree ment that y ou had with [ECI ]?

A. I ’m sure, y es.

Q. You wer en’t require d to take other work that was offe red to y ou,

wer e y ou?

A. No.

Q. And y ou understood that y ou wer e not an e mploy ee of [EC I ]?

A. To my

knowledg e, y es.

Q. And y ou wer e shown a document that is part of what I g ave y ou, the pac kag e that I

put in front of y ou?

A. Uh-huh.

Q. There wer e cer

tain things that y ou wer e asked about that y ou wer e g iven the option of providing y ourself?

A. Yes.

Q. Diffe rent ty

pes of insurance including car g o insurance
, worke r’s
compensa tion insurance

. You had the option of providing that
y ourself or

pay ing [ECI ] t o provide [it] for y ou?

A. Corre ct.

Q. And that was a voluntary decision o n y our part, y ou wer en’t influence d in any

way wer e y ou?

A. No.

Q. You never had an y co mplaints or vi olations or problems during the time that y ou worke d for [EC I ] betwee n the time y ou started and the time of the a ccide nt?

A. None tha t I was e ver ma de aw are of, no.

-5-Fr om our revie w of the rec ord, Mr. Rowsell’s testimony is undisputed. Giving Ms. J ohnson ever y infere nce, the only control that E C I ap pear s to have had over Mr. Rowsell wer e the following require ments:

1. To make his pick- ups and deliver ies on time;

2. To su b mit route and delivery repor ts while under reve nue loads; and 3. To comply

with all applicable la

ws and re g ulations.

Under the Beare Co. v. State fact o rs , s u p r a , t hese three are as of “contr ol” do not neg ate Mr. R o wsell’s testimony

. I n the case of Masiers v. Arrow Transfer & Storage Co.
, 639 S

. W

. 2 d 6 5 4 (Tenn. 1982), our Supreme Court addre ssed the question of whether plaintiff Masiers, who had filed

a claim for worker’s compensa tion benef its ag ainst the defe ndant Arrow Transf er, was an independe nt contra ctor. Mr. M aisers argued that he was an employ ee of Arrow
, as opposed to an independe nt contra ctor, and was there fore entitled to worke r’s compensa tion benef its. I n aff irming the trial court’s finding that Mr. Maisers was, in fac t, an independe nt contra ctor, our Supreme Court

rea soned:

The chanc ellor considere d the sever al indicia previously enumer ated

by this court and conclude d from the work rela tionship as a whole, that appellant was an independe nt contra ctor. I n our opinion, the evidenc e supports h i s conclusion. The rig ht of control by appellee

over the con d u ct o f appellant' s work exis ted only as to results. Ap pellant furnished the trac tor, which he owned outrig ht, having obtained no financ ial assistance from appellee i n making the purcha se. He provided all maintenanc e, materia ls, tools, and labor for the upkeep of the trac tor. He was responsible for car g o shortag es and damag es on his loads, his own fuel bills, and his out-of-town livi ng expenses. He was responsible fo r r eporting his own income and social

secur ity taxes. He had the rig ht to set his own hours. He was fre e to hire his helper s as he saw fit, subject only to their qualifica tion if they

wer e to drive appellant's trac tor. Fur ther, appellant had the rig ht to decide whether o r not to acc ept a g iven car g o for delivery

. These options a r e in c o mp a

ti b le w it h a n e mp lo y e r

- e mploy ee rela tionship, but

are compatible wi t h the exis tence of an independe nt contra ctor rela tionship.

Maisers
, 639 S.W .2d at 656. L ikewise, in the case at bar, the few “contr ols” that ECI exercised over Mr. Rowsell wer e nominal. Howeve r, like the plaintiff in Maisers
, Mr. Rowsell provided his own vehicle, and maintained that vehicle himself. Moreove r, Mr. Rowsell testified that he could choose his ow n routes, and was fre e to hir e help as he saw fit. This te stimony
, coupled with the exis tence of the independe nt contra ctors ag ree ment, and the rela tively small amount of control ECI exercised

over its drivers, leads us to conclude that the trial court did not err in finding that Gra y son Rowsell

-6-was, in fac t, an independe nt contra ctor. The ques tion then become s whether Mr. Rowsell’s

rela tionship with ECI falls into one of the exceptions to the g ener al rule of non-liability on the part of the e mploy er of

an indepe ndent contra ctor.

Exceptions to Non-Liabi lity

The Restatement (Second) of Torts lists numerous exceptions to the non-liability principle,
g rouping them into three broad ca t ego ries: (1) exceptions based on the employ er' s neg lige nce in selec ting, instructing, or supervising the independe nt contra ctor, (2) exceptio n s b ased on non-dele g able duties the employ er owes to the public in g ener al or to the plaintiff in particula r, and (3) e x ceptions base d on work that is spe cifica lly
, peculiar ly
, or inhere ntly dang erous. Restate ment (Second) of Torts § 409 cmt. b. Concerning the first exception, the Restatement (Second) of Torts § 410 specific ally

provides that:

The em p l o y er of an independe nt contra ctor is subject to the same liability for phy sical harm cause d by an act or omission committed by the contra ctor pursuant to order s or direc t i ons neg lige ntly g iven by the employ er, as though the act or omission wer e that of the employ er himself.

T h e T en n es s ee Supreme Court has recog nized this exception as t he chief ex ception to the non-liability principle. Givens v. Mull ikin
, 75 S.W .3d 383, 394 (Tenn

. 2 0 0 2 ). Employ ers are not liable under this section if they neit h er k new nor should have known that the work involved an

unrea sonable risk of harm to others when they g ave th ei r order s or instructions. Howeve r, an employ er will be liable if, having been informed of a risk that the contra ctor has discovere d, it require s the contra ctor to car ry out its orig inal order s or instructions. Restatement (Second) of Torts § 410 cmt. c.

I n her amende d complaint, Ms. J ohnson alleg es additional theories of liability ag ainst ECI
, which include “neg lige nt supe rvision, e ntrustment, a nd hiring .” The primar

y arg ument in support of these claims was that ECI brea ched a duty to test Mr. Rowsell for drug use. On May 6, 2008, the parties took the de position of Tennessee Hig hway Patrol Trooper

Mike Phill ips. Trooper Phil lips testified t hat, when he arrived at the s cene of t he accident, Mr. Rowsell ap p ea red normal and that

no drug s or alcohol wer e prese nt. Trooper Phill ips testified that Mr. Rowsell passed all field sobriety tests give n at the sce ne. Ac cording to Trooper Phill ips, Mr. Rowsell did not have bloodshot ey es, and did not slur his words. At the sce ne, Mr. Rowsell consente d to a blood test. Troope r Philli ps produce d a copy of an “Of ficial Tox icolog y Report,” dated J anuar y 19, 2007. The repor

t ref lects a finding of “mar i[

j] uana metabolite” and “diazepam;” howeve r, afte r the test results wer e known, no char g es we re f

iled ag ainst Mr. Rowsell.

I n support of her claim that ECI was g uilty of neg lige nt supervision, entrustment, and hiring of Mr. Rowsell, Ms. J oh n s o n o ff ere d the t estimony of t ox icolog ist, Howar d S. Tay lor. Howeve r, Dr. Ta y lor testified that the only “policy ” that ECI

did not comply

with was an inter

nal, unwritten

-7-policy
, which was not require d by state of fede ral law. The rec ord reve als that ECI ’s “policy ” was

to drug test those drivers who delivere d pharma ceutica ls. Drug tests on these drivers wer e perf ormed
at the time the initial contr act was enter ed, and randomly there afte r. Be cause Mr. Gra y son did not initially contra ct to deliver pharma ceutica ls, he was not tested at the time he signe d the independe nt contra ctor ag ree ment. Although Mr. Gra y son did beca

me a pharma ceutica l delivery driver shortly afte r he signe d the ag ree ment, at the time of the acc ident, he had only been a contra ctor with ECI for approximately four months; ECI testified that Mr. Rowsell had not been selec ted for random testing
g iven his rela tively short tenure with the company

. Howeve r, as Dr. Tay lor corr ectly notes, even if

a drug test had been perf

ormed on Mr. Gra

y son at the time he initially contra cted with ECI
, it would be purely a matter of specula tion as to what the results would have been. More importantly
, a drug
test perf ormed at the time of the initial contra ct would not bear on the qu es t i o n o f whether Mr. Rowsell was under t he influence at the t ime of t he accident. Fr om Trooper Phill ips’ testimony , it
ap p ea rs that, at the time of the acc ident, there was no indication that Mr. Rowsell was under t h e influence of either drug s or alcohol. And despit e the finding s of t he J anuar y 19, 20 0 7 t o x i co l o gy repor t ( supra ), no char g es wer e filed a g ainst Mr. Rowsell. Moreove r, fr om the rec ord as a whole, there is no indication th at M r. Rowsell demonstrated signs that should have aler ted ECI to take action. I n fac t, the rec ord indicates that Mr. Rowsell was proper ly licensed and insured, that he had
not been involved in any prior acc idents, and that there had never been any complaints or problems

conce rning his work.

The Restate ment (Second) of Torts § 414 provide s:

One who entrusts work to an independe nt contra ctor, but who reta ins the control of any part of the work, is subject to liability for phy sical harm to others for whose safe ty the employ er owes a duty to exercise

rea sonable car e, which is cause d by his failure to exercise his control with rea sonable c are

.

Tenne ssee courts have rec og nized this exception implicitl y by emphasizing the centr al importance of the rig ht to control when deter mining whether a person is an employ ee or an independe nt contra ctor. See, e.g., Gulf Ref. Co. o f L a . v. H

u ff m an & Weakley
, 297 S.W

. 199, 200-201 (Tenn. 1927). This exception usually applies to g ener al contra ctors who have entrusted part of t heir work to subcontract ors but who s upervise the entire job. Restatement (Second) of Torts § 414 cmt. b. For this exception to apply
, the employ er must have reta ined sufficie nt control that the independe nt contra ctor is not entirely fre e to pe rfor m the work in his or her own way

. Restatement (Second) of Torts § 414 cmt. c. I n the instant case , there is simply no indication that ECI exercised sufficie nt control over Mr. Gra y son so as to be held liable under this exception. Other than the three require ments imposed by ECI supra , Mr. Gra

y son was complete ly

autonomous in his job.

The Restate ment (Second) of Torts § 427 provide s:

One who employ s an independe nt contra ctor to do work involving a specia l dang er to other s which the e mploy er know s or has reason to

-8-know to be inhere nt in or normal to the work, or which he contemplates or has rea son to contemplate when making the contra ct, is subject t o liability for phy s i ca l harm caused to such ot hers by the
contra ctor' s failure to take rea sonable prec autions ag ainst such dang er.

The ex ce p t i on applies when the contra ctor is perf orming work that involves risk,

rec og nizable in advanc e, of phy sical harm to others that is inhere nt in the work itself or in the usual

or presc ribed way of doing the work. Restatement (Second) of Torts § 427 cmt. b; see also Powe ll

v. V irgin ia Const

. Co.
, 697, 13 S.W

. 691, 692 (Tenn. 1890); Potter v. Tucker
, 688 S.W .2d 833, 836 (Tenn. Ct. App.1985). The risk must be one that should be rea sonably anticipated at the time of the
contra ct. Restatement (Second) of Torts cmt. d; McHarge v. M.M. Newcomer & Co.
, 100 S.W

. 700, 704 (Tenn. 1907) (noting that the risks must be ones that should be rea sonably anticipated)

. I t is clea r from sever al of the illust rations provided by the Restatement (Second) of Torts that this exception is not limit ed to work that is abnorma lly dang er o u s o r t h at car ries with it a high deg ree of risk of h ar m to others. That being said, Ms. J ohnson’s only arg ument conce rning this exception i s t h at 1 “deliver y work [i s] nece ssarily attended with dang er to others.” Howeve r, Ms. J ohnson provides no specific ity conce rning this claim, but instead relies upon the case of W a g g o n er Motors, Inc. v. Waverly Chu rch of Chri st , 159 S.W .2d 42 (Tenn. Ct. App. 2004). I n W a g g o n er , t he court deter mined that a churc h was liable for the neg lige nce of a painter hired to spray paint outside on a windy day
, which resulted in damag e to the adjoining landowner ’s proper ty

. The fac ts of Waggoner clea rly fall i n t o t h e Restatement (Second) of Torts §427 exception, espec ially in light of the illust ration g iven in cmt.d there to, see fn. 1 supra

. Ms. J ohnson also relies upon the case of Potter

v. Tucker
, 688 S.W .2d 833 (Tenn. Ct. App. 1985). Potte r i n v o l v ed the cutting of timber by a contra ctor on an adjac ent landowner ’s proper ty , and clea

rly implicates the exception outlined in the Restatement (Second) of Torts § 414A. I n short, neither Waggoner nor Potter are analog ous to the 2

case at bar. Ms. J ohnson has not provided, nor can this Court find, any case law to support a finding that the act of driving a delivery van is any more dang erous than the dail y ac t o f d ri ving a motor vehicle.

Ind ependent Duty

A e m p l o y s B
, a n i n d e p e n d e n t c o n t r a c t o r , t o p a i n t t h e w a l l o f h i s b u i l d i n g a b o v e t h e p u b l i c s i d e w a l k

. I n t h e 1

c o u r s e o f t h e w o r k a w o r k m a n e m p l o y e d b y B d r o p s h i s p a i n t b u c k e t , w h i c h f a l l s u p o n C
, a p e d e s t r i a n , a n d i n j u r e s h i m

. T h e d a n g e r i s i n h e r e n t i n t h e w o r k
, a n d A i s s u b j e c t t o l i a b i l i t y t o C

. R e s t a t e m e n t ( S e c o n d ) o f T o r t s § 4 2 7 c m t

. d
, i l l u s

. 1

T h e R e s t a t e m e n t ( S e c o n d ) o f T o r t s § 4 1 4 A p r o v i d e s :

2

A p o s s e s s o r o f l a n d w h o h a s e m p l o y e d o r p e r m i t t e d a n i n d e p e n d e n t c o n t r a c t o r t o

d o w o r k o n t h e l a n d
, a n d k n o w s o r h a s r e a s o n t o k n o w t h a t t h e a c t i v i t i e s o f t h e

c o n t r a c t o r o r c o n d i t i o n s c r e a t e d b y h i m i n v o l v e a n u n r e a s o n a b l e r i s k o f p h y s i c a l h a r m t o t h o s e o u t s i d e o f t h e l a n d
, i s s u b j e c t t o l i a b i l i t y t o t h e m f o r s u c h h a r m i f

h e f a i l s t o e x e r c i s e r e a s o n a b l e c a r e t o p r o t e c t t h e m a g a i n s t i t

.
-9-I n her br ief, Ms. Johns on asser ts tha t E CI ’s “fa ilure to follow [i ts] drug scre ening policies is direc t neg lige nce.” As discussed above, Ms. J ohnson’s expert Dr. T ay lor testified that ECI ’s internal policy conce rning drug scre ening was not r equire d by any state or fede ral law. I n the case of Giggers v. Mem

phis Housin g Aut

horit y , No. W2006-00304-COA-R3-CV, 2007 WL 2216553 (Tenn. Ct. App. 2007), reve rsed on other grounds , 277 S.W .3 d 3 5 9 (T en n

. Fe b 03, 2009), the plaint i ff fi l ed s u i t for damag es based upon a criminal assault t hat occurre d on the premises of t he defe ndant housing authorit y

. As in the instant case , the Giggers plaintiff arg ued that the housing authority ’s internal po l i ci es concerning scre ening of tenants/applica nts cre ated a leg al duty to the plaintiff. The trial court disag ree d, holding that “Te nnessee case s have not f ound internal policies
to cre ate a leg al duty and have even questioned whether i n t er n al p olicies are admissible for any purpose whatsoeve r.” Giggers
, 2007 WL 2216553, at *4 (citing Gibbs v. Robin Media Group
, 2000 WL 1207201, *3 (Tenn.Ct.App.2000))

. Ba sed upon this finding
, the trial cour t gr anted summary judgme nt in favor of the defe ndant housing authority
, and this Court aff irmed. W e can find no authority that establishes that an internal policy cre ates a leg al duty to the public at larg e. Howeve r,

even if we wer e to find that ECI ’s internal drug testing policy cre ated a duty
, there is simply no proof in the rec ord that a br eac h of this duty was the c ause of

the ac cident.

For the fore g oing rea sons, we aff irm the order of the trial court, g ranting summary judgme nt in favor of ECI

. Costs of this appea l are assessed ag ainst the Appellant, Renee L

. J ohnson, and her surety

.



### __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ J. STEVEN STAFFORD, J.

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