Helton v. Reynolds

FRANKS, Judge,

dissenting.

I dissent and would affirm the jury’s verdict as approved by the trial judge.

Judge Goddard quotes from Cotton Press & Storage Co. v. Miller, 135 Tenn. 187 , 186 S.W. 87 (1916), which appears to comport with the Restatement (Second) of Torts, §§ 357, 378. This theory of liability is succinctly expressed in Prosser, The Law of Torts, (4th ed., 1971):

[T]he landlord by his promise has induced the tenant to forego repairs of his own, and by his misleading undertaking has made himself responsible for the consequences, and that he is distinguished from other contractors by the peculiar probability that the tenant will rely on him.... It seems clear that it is the contract itself which gives rise to the tort liability, and that it is distinguished from other contracts to enter and repair by reason of the peculiar relation existing between the parties, which gives the lessee a special reason and right to rely upon the promise. This, together with an undeclared policy which places the responsibility for harm caused by disrepair upon the party best able to bear it, and most likely to prevent the injuries, at least where he has expressed willingness to assume responsibility,...

At 410.

The majority opinion gratuitously disparages decedent’s mother’s testimony but ultimately concludes, as is required, that only the proof most favorable to the plaintiff be considered and all unfavorable evidence disregarded in determining whether the evidence is sufficient to support the jury’s verdict.

I do not accept the premise advanced in the majority opinion that gross negligence *12 was not properly an issue in the case. The evidence establishes the defendant promised to “fix that up” on Monday, the next day, following the mother’s concerned inquiry on Sunday. Defendant knew of the existence of the pit and the standing water and his agreement to repair promptly evidences an awareness of the dangerous condition since the pit was adjacent to the tenant house. He knew the tenants, parents of the small child, were required to be away from their children for long periods of time while performing farming chores required by defendant. Defendant failed to make repairs or take any steps to protect small children known to be present for a period of six days following the date he agreed to make repairs. I believe a jury issue was presented as to whether defendant consciously or recklessly disregarded his duty 1 to provide reasonably safe premises for his tenants’ family. In Thomason v. Wayne County, 611 S.W.2d 585 (Tenn.App.1980), this Court stated:

Gross negligence indicates a conscious neglect of duty or a callous indifference to consequences. Tipton Co. Board of Education v. Dennis, 561 S.W.2d 148 (Tenn.1978). In Stagner v. Craig, 159 Tenn. 511 , 19 S.W.2d 234 (1928), gross negligence was defined as “such entire want of care as would raise a presumption of a conscious indifference to consequences”. 611 S.W.2d, at 587 .

The salient inquiry, then, is whether defendant acted or failed to act in a manner such as to indicate a callous or conscious disregard of the rights of the decedent.

The failure to act in the face of a known dangerous situation may be gross negligence. Inter-City Trucking Co. v. Daniels, 181 Tenn. 126 , 178 S.W.2d 756 (1944). Also see Garner v. Maxwell, 50 Tenn.App. 157 , 360 S.W.2d 64 (1961); Neal et al. v. Midgett, 29 Tenn.App. 520 , 198 S.W.2d 32 (1946).

Our Supreme Court has indicated the emphasis to be placed on a negligent omission in the face of known danger. In Tipton Cty. Bd. of Ed. v. Dennis, 561 S.W.2d 148 (Tenn.1978), leaving a stalled vehicle on the road on a dark, rainy morning to call a mechanic was not gross negligence where the driver had turned on the vehicle’s caution lights and left another to direct traffic. The case of Thomason v. Wayne County, supra, is of like import. In Thomason , it was alleged a county maintained guardrail was insufficiently repaired and, as such, caused the death of the driver whose automobile struck the rail. It was further alleged that the improper repair created a dangerous condition, the maintenance of which was gross negligence by the county. The Supreme Court held the fact the county repaired the guardrail indicated it was not guilty of consciously neglecting its duty and as such there was no gross negligence: any negligence in connection with the repair was ordinary negligence. It can be inferred from Thomason that, had the county not repaired the damaged guardrail with knowledge of its damage, it could be guilty of gross negligence.

Clearly, the defendant’s failure to fill the pit or take other reasonable precautions to guard against children falling into the pit is evidence from which reasonable minds could differ as to whether the defendant was guilty of callous indifference or consciously neglecting his duty to deceased; moreover, doing absolutely nothing for six days in regard to the open pit following the date he agreed to repair, all the while knowing the small child was left in the home at times without parental supervision, to me,- raises “a presumption of conscious indifference to consequences”. I would affirm the judgment of the trial court.

. The contract gives rise to the duty and ordinary tort law principles become applicable.