FILED

December 11, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION

AT KNOXVILLE

_______________________________________________________

)

JOHN LEE NEWTON and, ) Knox County Circuit Court

VICTORIA CARTER NEWTON, ) No. 2-397-95

)

 Plaintiffs/Appellants. )

)

VS. ) C.A. No. 03A01-9706-CV-00204

)

DENISE TINSLEY, Individually and as )

ADMINISTRATRIX 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. Laughlin,

BUTLER, VINES AND BABB, P.L.L.C., Knoxville, Tennessee

Attorneys for Plaintiffs/Appellants.

Paul E. Dunn,

Dallas T. McRenolds, III 

DUNN, MacDONALD & COLEMAN, P.C., Knoxville, Tennessee

Janet L. Hogan, HOGAN & HOGAN, Knoxville, Tennessee

Attorneys for Defendant/Appellee.

OPINION FILED:

AFFIRMED AND REMANDED

FARMER, J.

HIGHERS, J.: (Concurs)

WILLIAMS, Sr. J.: (Concurs)
Plaintiffs John Lee Newton and Victoria Carter Newton appeal the trial court’s order

granting the motion for summary judgment filed by Defendant/Appellee Denise Tinsley in her

individual capacity. We affirm based on our conclusion that, under the facts of this case, Tinsley

owed no legal duty to prevent injury to the Newtons.

John Newton was seriously injured when he was shot by Tinsley’s husband, Tom

Tinsley. Tinsley’s relationship with the Newtons began when Tinsley, a licensed real estate agent,

sold the Newtons a lot on property in Knox County known as the Long farm. Tinsley acted as the

dual agent for both the Newtons and the Longs in the sale of the lot. Tinsley also helped the Longs

subdivide and develop the farm property. Tom Tinsley assisted with the construction of a road

across the Long farm property to enable property owners to access their lots. 

A couple of months after purchasing their lot, theNewtons complained to Tinsley that

the road across the farm property was experiencing drainage problems. In response to this

complaint, Tinsley asked her husband to make repairs to the road. Tom Tinsley took a Bobcat to the

site and attempted to repair the road by laying additional gravel and grading the road. Despite these

efforts, the Newtons continued to complain about the drainage problem on the road. A dispute arose

between Tom Tinsley and John Newton over the former’s efforts to repair the road, and their dispute

intensified when the Newtons threatened to file a lawsuit if the problem was not resolved. 

On the evening of April 26, 1995, Tinsley returned home from a Codes

Administration meeting where she had requested a variance for some unrelated property. When

Tinsley informed her husband that the variance had been denied, he became very angry and appeared

out of control. Shortly thereafter, Tom Tinsley left the house, armed with a shotgun and a ninemillimeter pistol. Tinsley knew that her husband was being treated 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 psychiatrist, Kathleen Sales. Dr. Sales was out of the office, but she returned Tinsley’s call

approximately ten minutes later. During the ensuing telephone conversation, Tinsley expressed

concern for her husband’s safety and for the safety of two other men, the names, addresses, and
1The trial court also entered a $500,000 judgment in favor of the Newtons and against the

Estate of Tom Tinsley. This appeal involves only the judgment entered in favor of Tinsley in her

individual capacity. 

2There was some dispute in the testimony as to whether Tom Tinsley specifically

mentioned John Newton’s name prior to leaving the Tinsleys’ 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 contradicted this testimony, stating that Tinsley told her

during their telephone conversation that evening that Tom Tinsley also mentioned John

Newton’s name. In any event, it was undisputed that Tom Tinsley recently had threatened to “go

over there and beat [John Newton] up” and that Tinsley was sufficiently concerned for Newton’s

safety to provide his name, address, and telephone number to Dr. Sales.

telephone numbers of whom she provided to Dr. Sales. One of the men specifically mentioned by

Tinsley was John Newton. As a result of her conversation with Tinsley, Dr. Sales called 911. 

Meanwhile, after leaving his house, Tom Tinsley drove the three miles to the

Newtons’ lot on the Long farm property, where John Newton was working on the family’s partiallyconstructed 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 fleeing the scene, Tom Tinsley

shot and killed himself.

Although seriously injured, Newton survived the shooting and, along with his wife,

filed this lawsuit against Tinsley, both in her individual capacity and in her capacity as administratrix

of her husband’s estate. Tinsley, acting in her individual capacity, filed a motion for summary

judgment contending that, as a matter of law, she owed no duty to control the conduct of her husband

or to protect the Newtons from her husband’s conduct. The trial court granted the 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. Hall, 847 S.W.2d 208, 214-15

(Tenn. 1993). In this case, the record contains no dispute as to the facts which were material to the

issue of whether Tinsley owed a duty to the Newtons.2 Accordingly, we agree that summary

judgment was the appropriate procedure by which to determine this issue.

We begin our analysis with the premise that, although all persons have a duty to use
reasonable care to refrain from conduct that will foreseeably cause injury to others, as a general rule,

one person owes no affirmative duty to protect or warn others endangered by the conduct of a third

party. 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 reluctance to countenance nonfeasance as a

basis of liability, our supreme court stated:

In determining the existence of a duty, courts have

distinguished between action and inaction. Professor Prosser has

commented that “the reason 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 ‘nonfeasance’ he has at least made his

situation no worse, and has merely failed to benefit him by interfering

in his affairs.”

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

Law of Torts § 56, at 373 (5th ed. 1984)).

To mitigate the harshness of this rule, the courts of this state have carved out

exceptions in cases where the defendant stands in some special relationship either to the individual

whose conduct threatens to cause harm or to the individual exposed to the harm. Bradshaw v.

Daniel, 854 S.W.2d at 871; Nichols v. Atnip, 844 S.W.2d at 661. Specifically, the courts have

adopted section 315 of the Restatement (Second) of Torts, which provides that:

There is no duty so to control the conduct of a third person as to

prevent him from causing physical harm to another unless

(a) a special relation exists between the actor and the third

person which imposes a duty upon the actor to control the third

person’s conduct, or

(b) a specialrelation exists between the actor and the other

which gives to the other a right to protection.

Restatement (Second) of 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 relationship between parents
3As noted by the court in Nichols, this court specifically has declined to adopt the special

relationship between private property owners and their guests recognized in section 318 of the

Restatement. Nichols v. Atnip, 844 S.W.2d at 662 (citing Wilkerson v. Altizer, 845 S.W.2d 744,

748 (Tenn. App. 1992)).

and their minor children; masters and their servants; property owners and their guests;3

 and

custodians and persons in their care who demonstrate dangerous propensities. Restatement(Second)

of Torts §§ 316--319 (1964); Nichols v. Atnip, 844 S.W.2d at 662. Similarly, the Restatement

defines the relationships between the actor and the other which will require 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 custodians and persons in their care who are unable to protect themselves. Restatement

(Second) of Torts §§ 314A, 320 (1964); Nichols v. Atnip, 844 S.W.2d at 662.

Although the foregoing list ofrecognized relationships is not necessarily an exclusive

one, the Restatement suggests that the duty to aid or protect another will be imposed only in

relationships involving some degree of dependence 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

conduct to arise, 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’s order entering summary judgment in

favor of Tinsley because the Newtons have articulated no special relationship between either Tinsley

and her husband or between Tinsley and the Newtons which would impose a duty upon Tinsley 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 the real estate

agent who sold them their lot on the Long farm and assisted in developing the farm property. The

Newtons additionally argue that Tinsley had a special relationship with her husband because she

involved him in the development of the farm property by requesting that he perform roadwork on

the property. With the exception of the master-servant relationship alleged in the Newtons’ reply

brief, however, the special relationships described by the Newtons are not those envisioned by the

Restatement. The Newtons do not contend that Tinsley was her husband’s guardian or custodian,
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 carry with it the capacity or

authority to control.” Nichols v. Atnip, 844 S.W.2d at 662 (citing 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 that of custodian, common

carrier, innkeeper, or possessor of land open to the public. Moreover, the relationships described by

the Newtons do not constitute “special” relationships within the meaning of the Restatementbecause

(1) they do not involve any type of dependence or mutual dependence which would impose upon

Tinsley a duty to aid or protect the Newtons, 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 reply brief, the Newtons contend that the master-servant exception of

section 317 of the Restatement applies in this case. That section provides that:

A master is under a duty to exercise reasonable care so to control his

servant while acting outside the scope of his employment as to

prevent him from intentionally harming others or from so conducting

himself as to create an unreasonable risk of bodily harm to them, if

(a) the servant

(I) is upon the premises in possession of the

master or upon which the servant is privileged to enter only 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) knows or should know of the necessity and

opportunity for exercising such control.

Restatement (Second) of Torts § 317 (1964). We conclude 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 servant),

and (2) even if Tom Tinsley could be characterized as his wife’s servant, the record fails to indicate

that Tinsley had the means and/or the ability to control her husband. 
We additionally reject the Newtons’ contention that the evidence creates an issue as

to Tinsley’s liability under section 302B of the Restatement. Section 302B provides that:

An act or an omission may be negligent if the actor realizes or should

realize that it involves an unreasonable risk of harm to another

through the conduct of the other or a third person which is intended

to cause harm, even though such conduct is criminal.

Restatement (Second) of Torts § 302B (1964). In their reply brief, the Newtons cite the following

illustration to section 302B in support of this theory:

A is the landlord of an apartment house. He employs B as a

janitor, knowing that B is a man of violent and uncontrollable temper,

and on past occasions has attacked those who argue with him. C, a

tenant of one of the apartments, complains to B of inadequate heat.

B becomes furiously angry and attacks C, seriously injuring him. A

may be found to be negligent toward C.

Restatement (Second) of Torts § 302B cmt. e illus. 9 (1964). The imposition of liability under this

section requires that the actor have exposed the other to “a person whom the actor knows or should

know to be peculiarly likely to commit intentional misconduct.” Restatement (Second) of Torts

§ 302B cmt. e (1964). The record in this case fails to support a finding of liability under

section 302B because the evidence indicates that, when she asked her husband to perform roadwork

on the Long farm property, Tinsley neither knew nor should have known that her husband was

“peculiarly likely to commit intentional misconduct.” Id. Although Tinsley knew her husband was

being treated for depression, the undisputed evidence reveals that Tom Tinsley never committed

violent acts toward another prior to April 26, 1995. 

As this court has observed, the common-law rule that persons generally have no duty

to protect others from harm by third parties, while seemingly harsh, remains the law in this

jurisdiction. Nichols v. Atnip, 844 S.W.2d at 662. We recognize that this rule has been the subject

of criticism by various legal authorities. See Restatement (Second) of 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 owed no legal duty to protect or warn the

Newtons in this case.
The trial court’s order granting Tinsley’s motion for summary judgment and

dismissing the Newtons’ claim against Tinsley in her individual capacity is affirmed. Costs of this

appeal are taxed to the Newtons, for which execution may issue if necessary.

____________________________________

FARMER, J.

______________________________

HIGHERS, J. (Concurs)

______________________________

WILLIAMS, Sr. J. (Concurs)