# FILED
December 11, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT KNOXV

ILLE

_______________________________________________________ ) JOHN LEE NEWTO N and , ) Knox County Circuit Court VICTORIA CARTER NEWTO N , ) No. 2-397-95 ) Plaintiff

s/Appella nts. )

) VS. ) C.A. No. 03A01-9706-CV-00204 ) DENISE TINSLEY , Individually a nd as ) ADMINISTR

ATRIX OF

THE ) ESTATE OF CARL THOMAS ) TINSLEY , ) ) Defendant/Appellee. ) )

______________________________________________________________________________ From the Circuit Court of Knox County at Knoxville. Honorable Harold Wimberly, Judge

Bruce A. Anderson , Vonda M. Laug

hlin , BUTLER, VI

NES AND BABB, P.L .L.C., Knoxville, Tennessee Attorney s for Plain

tiffs/App ellants.
Paul E. Dunn , Dallas T. M cRenolds,

III DUNN, MacDONAL

D & COLEMAN, P.C., Knoxville, Tennessee Janet L. Hogan , HOGAN & HOGAN, Knoxville, Tennessee Attorneys for D efendant/Appellee.

OPINI ON FIL

ED: AFFI RMED AND

REMANDED FARMER, J. HIGHERS, J. : (Concur s) WILLIAMS, Sr. J. : (Concur s)Plaintiffs John Lee Newton and Victoria Carter Newton appeal the trialcourt’s order granti n g the motion for summary judgment filed by Def endant/Appellee Denise Tinsley in her individual capaci

ty. We affir

m based on

our conc lusion tha

t, under t he fact s of th is case, T insley owed no le gal duty

to preve nt injury to the New

tons.

John Newton was seriously injured when he was s hot by Tinsley ’s husband, Tom Ti ns le y. Tinsley’s relationship with the New tons began when

Tinsley, a

license d real e state ag ent, sold the Newtons a lot on property in Knox County known as the L ong farm. Tinsley

acted as the dual agent for

both the Newtons a

nd the L ongs in th e sale of the lot. Tinsley

also helpe d the Lon gs subdivide and develop the farm pro pe rt y. Tom Tinsley assisted with the construction of a r oad across the Long

farm property

to enable property

owners to access their lots.

A couple of months after purchasing their lot, the Newtons co mplained to Tinsley that the road across the farm property was expe r iencing

drainag e proble

ms. In response to this complain t, Tinsley asked he r husband to make r epairs to the road. Tom Tinsley took a B obcat to the site and atte

mpted to re

pair the roadby l aying add

itional g ravel a nd gra ding the road. De spite thes e efforts , the Newtons continued to complain about the drainage problem on the road. A dispute a rose betweenTom Tinsley

and John Newton over

the forme r’s eff orts to repair

the road , and thei

r dispute intensified when the Newtons threatened to file a lawsuit if the proble m was not resolved. O n the evening of April 26, 1995, Tinsley returned home from a Cod e s Administration meeting where she h ad requested a variance for some unr elated property . When Tinsley informed her husband

that the variance had been denied, he became very

angry and appeared outof con trol. Short ly thereaf ter, T om Ti nsley lef

t the h ouse, armed w ith a s hotgu n and a nin emillimeter pistol. Tinsley knew that her husband was being trea ted for manic depression, and she knew that he recently

had threatened to harm both John Newton and another man, a Codes Administration employee.

About five minutes after her husband left the house, Tinsley

telephoned the office of his psy chiatris t, Kathle en Sales. Dr. Sale s was out o f the off ice, but s he retur

ned Tinsle

y’ s call approxima

tely ten mi nutes later . Duri ng the e nsui ng t elep hone conversation, Tinsley expressed
concernfor he r husband’s safety and for the safety

of two other men, the names, addresses, and1 The trial court also entered a $500,000 judgment in fa vor of the Newtons and against the Estate of Tom Tinsley. This appe al involves only the judgment e ntered in favor of Tinsley in her individual capacity.

2 There w as some di spute in the testimon y a s to whethe

r Tom Tinsl ey

specific ally mentioned John Newton’s name prior to leaving the Tinsley s’ house. Tinsley testified that the only name mentioned by

her husband on the evening of April 26, 1995, was that of the Codes Administration employee. Dr. Sales c ontradicted this testimony, stating that Tinsley told her during their telephone conversation that evening that Tom Tinsley also mentioned John Newto n’s na me. In any eve nt, i t was u ndis puted that T om Ti nsley rece ntly had t hreate ned to “go over there and beat [John Newton] up” and that Tinsley was sufficiently c oncerned for Newton’s safety to provide

his name, address , and tele phone num

ber to Dr . Sales. telephone numbers of whom she provided to Dr. Sales. One of the men specific ally mentioned by Tinsley was John Newton. As a re sult of her conversation with Tinsley , Dr. Sales called 911.

Meanwhile, after l eavin g h is house, Tom Tinsley drove the thre e miles to the Newtons’ lot on the Long farm pr operty, wher

e John Newton was working on th e f am il y’s pa rt ia ll yconstructed

home. During a brief confrontation, Tom Tinsley shot Newton a

total of four or five times and proceeded to beat Newton in the head with the pistol. Tom Tinsley also attempted to shoot Newton’s wife and two small sons, who escaped unharmed. After flee ing the scene, Tom Tinsley shot and killed himself.

Alth ough seriously injured, Newton survived the shooting and, along with his wife, filed this lawsu

it against Tinsle

y, b oth in her

individua l capac ity a

nd in her c apacity

as adminis tratrix of her husb and’s es tate. Tin sley , acting in her ind

ividual c apacity , filed a

motion for

summa r y judgment contending that, as a matter of law, she owed no duty to control the c onduct of her husband
or to protect the Newtons f

rom her h usband’sconduct. The tria l court g ranted t he motion, and this appeal by the

Newtons followed. 1

When the material facts regarding a controlling issue of law are undisputed, summary judgment is an appropriate means of deciding that issue. Byrd v. Ha ll , 847 S.W.2d 208, 21 4 -15 (Tenn. 1993). In this case, the rec ord contains no dispute as to the facts which were material to the issue of whether Tinsle

y ow ed a duty

to the New

tons. 2 Accordingly , we agree that summary judgment was the appropriate procedur e by which to dete

rmine this issue.

We begin our

analy sis with the

premise t hat, althoug

h all per sons have

a duty to usereasona

ble care to

refra in from co nduct tha

t will fore seeably

cause in jury to others, a s a

general rule,
one person owes no affirmative duty to protect or warn others endange red by the c onduct

of a third pa rt y. Bradshaw v. Daniel , 854 S.W.2d 865, 870 (Tenn. 1993); Nichols v. Atnip , 844 S.W.2d 655, 661 (Tenn. App. 1992). In explaining this historical re luctance to countenance no nf easanc e as a basis of liability, our supreme cour t stated:

In determining the existence of a duty , courts have distinguished between action and inaction. Professor Prosser has commented that “the re ason for the distinction may

be said to

lie in the fact that by ‘ misfeasance’ the defendant has created a new risk of harm to the plaintiff

, while by ‘nonfea sance’ he has at

least made his situation no worse, and has merely failedto benefit him by interfe ring in his affairs.”

Bradshaw v. Daniel , 854 S.W.2d at 870 (quoting W. Page Keeton et al., Prosser an d Keeton on the Law of Tort

s § 56, at 373 (5th ed. 1984)).

To mitigate

the hars hness of t

his rule , the cour

ts of this state have carved out exceptions in cases where the defenda nt stands in

some special relationship either to the individual whose cond uct threatens to cause harm or to the individual exposed to the harm. Bradshaw v. Daniel , 854 S.W.2d a

t 871; Nichols v. Atni

p , 844 S. W.2d at 661. Specifically, the cour ts have adopted section 315 of the Restatement ( Second) o f Torts , which pr

ovides tha

t:

There is no d uty

so to contr

ol the conduct of a

third per son as to prevent him from c ausing p

hys ical har

m to anothe

r unless (a) a special relation exists between the actor and the third person which imposes a duty up on the act or to control the third person’s conduct, or (b) a special relati on exists between the actor and the other which gives to the other a right to protection.
Restatement (

Second) o f Torts § 315 (1964).

The Restatement

defines the relationships between the actor and the third person which will require the actor to control the third person’s conduct: the rela tionship be

tween pa rents3 As noted by the cour t in Nichols , this court specifically ha s declined to adopt the special relationship between private property owners and their guests recog nized in section 318 of the Restatement
. Nichols v. Atnip , 844 S .W.2 d at 66 2 (cit ing Wilkerson v. Altizer , 845 S.W.2d 744, 748 (Tenn. App. 1992)). and th eir mi nor child

ren; mast ers and t heir ser vants; pr operty owners a

nd their g

uests; 3 and custodians and persons in their care who demonstrate dang ero us propensi ties. Restatement (

Second) of Torts §§ 316--319(1964); Nichols v. Atnip , 844 S.W.2d at 662. Similarly, the Restatemen t defines the relationships between the actor and the other which will requir e the actor to control the conduct of third persons for the protection of the other: the relationship between common carriers and their passengers; innkeepers and their guests; possessors of premises open to the public and their invitees; and custo dians and persons in their ca

re who a re unabl e to protect themselves. Restatement (Second) of Torts §§ 314A, 3 20 (1964) ; Nichols v. Atnip , 844 S.W.2d at 662.

Alth ough the fore going

li st of recogni zed relationships is not necessarily an e xclusive one, the Restatement

sugges ts that t

he duty to aid or p

rotect a nother w ill be impos ed only in relationships involving some degree of depende nce or mutual dependence. Restatement (Second) of Torts § 314A cmt. b (1964). On the other hand, in order for the duty to control a third party’ s conduc t to a rise, the actor must have the means and ability to control the third party. Carroll v. Thomas , 1988 WL 22833, at *3 (Tenn. App. Mar. 8, 1988), perm. app. denied (Tenn. May 23, 1988).
In the present case, we affirm

the trial court’sorder e

ntering summary judgmen t in favor of Tinsley beca

use the Newtons have articulated no special relationship between either Tinsley and her husband

or between Tinsle

y a nd the Newtons whic

h would impo se a duty

upon Tinsle

y to control her husband’s conduct or to protect the Newtons from her husband’s conduct. On appeal, the Newtons argue that they had a special relationship with Tinsley because she was th

e real e state agent who sold them their lot onthe Long far m and assisted in developing the farm property . The Newtons additionally arg ue that Tinsley had a

special relationship with herhusband because she in v olved him in the development of the farm property by requesting

that he perform roadwork on the property. With the exception of the master- servant relation ship alleged in the N ewtons’ r eply brief, however, the special relationships described by the Newtons ar

e not those envisioned by the Restatement
. The Newtons do not contend that Tinsley was her husband’s guardian or c ustodian,4 In Nichols , we observed that the family relationship alone, including that of husband and wife, “is not a ‘special relation’ because it does not necessarily c arry with it the capacity or authority to control.” Nichols v. Atnip , 844 S .W.2 d at 66 2 (cit ing Ollice v. Pugh , 1987 WL 4902, at *4 (Tenn. App. May 27, 1987)). nor do they contend that Tinsley ’s relationship with the Newtons was tha t of custodi an, common carrier, innkeepe

r, or poss essor of

land open

to the public. Moreover, the relationships described by the Newtons do not constitute “special” relationships within the meaning of the Res tatement becau se (1) t hey do not involve any type of depe

ndence or mutual dependence which would impose upon Tinsley a duty to aid or p

rotect th e Newton s, and (2) they

not involve the means and ability to control which would impose upon Tinsley a duty to control the conduct of her husband. 4

In their re

ply brief, th e Newton s contend

that the ma ster-se

rv ant exception of section 317 of the Restatement applies in

this case . That section provi des that:

A master isunder a d

uty to exercis e reaso nable ca re so to c ontrol his servant while acting outside the scope of his employ

ment as to prevent him from intentionally harming other s or from so conducting himself a s to crea

te an unr easonab le risk of

bodily harm to the

m, if (a) the servant (I) is upon the p remises in possession of the master or upon which the servant is pri vi leged t o enter o nly

as his servant, or (ii) is using a chattel of the master, and (b) the master (I) knows or has reason to know that he has the ability to control his servant, and

(ii) k nows or sh ou ld kn ow of th e n ec es si ty an d opportuni ty f or exerc ising suc

h control
.

Restatement

(Second) of Torts § 317 ( 1964) . Weconclude that the master-servant exception found in section 317 does not apply to this case because (1) the undisputed evidence demonstrates that Tom Tinsley was upon the Newtons’ premises at the time of the shooting, and not upon Tinsley ’s premises (or premises upon which Tom Tinsley had a privilege of entry

only as Tinsley’s serva

nt), and (2) evenif Tom Tinsley could be c

haract erized a s his wife ’s serva

nt, the record fa

ils to indic ate that Tinsley had the mea

ns and/or the ability to control her husba nd.We additionally reject the N ewtons’ contention that the evidence creates an

issue as to Tinsley’s liability

under section 302B of the Restatement . Section 3 02B prov ides that:

An act or an omission may be negligent if the actor rea

lizes or sho

uld real izethat it involves an unre ason able risk of harm to another through the conduct of the other or a third pe

rson which is intended to cause harm, ev en thoug

h such co nduct is c

riminal.

Restatement

(Second) of Torts § 302B (1964). In their r eply brief, the

Newtons cite the following il lu st ra ti on to se ct io n 3 02 B i n s up po rt of th is th eo ry:

A is the landlord

of an apa rtment hou se. He e

mploy s B as a janitor, knowing that

B is a man of violent

and uncontrollable temper, and on past occa sions has attacked those who argue with him. C, a t ena ntof one of

the apar tments, co mplains to B of inade quate he at. B becomes furiously a

ngry and attacks C, seriously injuring him. A may be found to be negligent to ward C.

Restatement

(Second) of Torts § 302B cm t. e illus. 9 (1964). The imposi tion of lia bility under thi s section requires that the actor have exposed the other to “a person whom the acto r knows or

should k now to be peculiarly likely to commit intentional misconduct.” Restatement (Second) of Tort s § 302B cmt. e (1964). The record in this case f ails to suppor t a findin g of liability under section 302B because

the evide nce indic ates tha

t, when sh e asked h er husba nd to perform roadwork
on the Long fa

rm p roperty , Tin sley neither kne w nor should have known that her husband was “peculi arly

likely to commit intentional misconduct.” Id
. Although Tinsley kne w her husband was being treated for depression, the undisputed e vidence re veals that Tom Tinsley neve r committed violent acts toward another prior to April 26, 1995.

As this court has observed, the common-la w rule tha t personsgener

ally have no d uty to protect others from harm by

third par

ties, whil e seemin gly

harsh, r emains the

law in this jurisdiction. Nichols v. Atnip , 844 S.W.2d a t 662. We recognize

that this rulehas been the subject of criticism by

various legal authorities. See Restatement ( Second) o f Torts § 314 cmt. c (1964). In the absence of

a special relationship between either Tinsley and her husband or Tinsley and the Newtons, however, we are constrained to hold that Tinsley owedno lega

l duty to protect or warn the Newtons in this case.The trial cou rt’s orde r gran ting Tin sley ’s motion for summary judgme nt and dismissing the Newt

ons’ cla im against Tinsle

y in her individual ca

pacity is affirmed. Costs of t

his ap pe al ar e t ax ed to th e N ew to ns , f or wh ic h e xe cu ti on ma y is su e i f n ec es sa ry.

____________________________________ FAR MER , J.

______________________________ HIG HERS, J. (Conc

urs)

______________________________ WIL LI AMS, Sr. J. (Co ncurs)