IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

June 3, 2008 Session

DIANE DOWNS EX REL. RYAN CODY DOWNS v. MARK BUSH ET AL.

Appeal by Permission from the Court of Appeals, Middle Section

Circuit Court for Davidson County

No. 04C470 Barbara N. Haynes, Judge

No. M2005-01498-SC-R11-CV - Filed September 10, 2008

JANICE M. HOLDER, J., concurring and dissenting.

I concur in the majority’s determination that the case should be remanded to the trial court

for further proceedings. Unlike the majority, however, I would conclude that the defendants owed

a duty of care to the decedent. I would therefore remand with instructions for the jury to decide

questions of fact relevant only to determinations of whether the defendants breached that duty and

caused the decedent’s death. Satterfield v. Breeding Insulation Co., ___ S.W.3d ____, ____ (Holder,

J., dissenting).

“As we have stated on numerous occasions, the existence or nonexistence of a duty owed to

the plaintiff by the defendant is entirely a question of law for the court.” Carson v. Headrick, 900

S.W.2d 685, 690 (Tenn. 1995); see also Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn. 1993);

McClenehan v. Cooley, 806 S.W.2d 767, 774 (Tenn. 1991). The majority nonetheless remands the

issue of duty to the jury thereby transforming this question of law into a question of fact. The

majority’s result arises from the incorporation of foreseeability into an analysis of duty and

demonstrates why that approach is inherently flawed.

In my view, a duty of reasonable care arises whenever a defendant’s conduct poses a risk of

harm to persons or property. Satterfield, ____ S.W.3d at ____ (Holder, J., dissenting). The

existence of a duty is generally presumed as long as the plaintiff alleges that he or she was harmed

by the defendant’s conduct. Id. The existence of a duty is akin to a policy determination that a

relationship exists sufficient to impose a duty to use reasonable care. See W. Jonathan Cardi,

Purging Foreseeability: The New Vision of Duty and Judicial Power in the Proposed Restatement

(Third) of Torts, 58 Vand. L. Rev. 739 (2005) (“At its core, duty–the imposition upon a class of

actors of an obligation of certain conduct–inescapably involves matters of policy.”)

The majority correctly notes that “[g]enerally, drivers of a vehicle owe their passengers a duty

to exercise reasonable care under the circumstances while driving” but nonetheless declines to assert

that a duty exists. In this case, the defendants engaged in risky behavior by drinking in excess and
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driving on the interstate with an unrestrained, intoxicated passenger in the bed of the truck. Their

conduct created a risk of harm. Thus, the defendants had a duty to exercise reasonable care.

Whether the defendants placed the decedent in the back of the truck or the decedent climbed in the

back of the truck voluntarily is relevant only to a determination of whether the defendants breached

their duty of reasonable care and caused the decedent’s death.

For the foregoing reasons, I would reverse the trial court’s grant of summary judgment with

instructions that the existence of a duty has been established and remand for further proceedings

consistent with this holding.

JANICE M. HOLDER, JUSTICE