Thurmon v. Sellers
| Decision Date | 08 October 2001 |
| Citation | 62 S.W.3d 145 |
| Parties | Dana Hope Davis THURMON (Scott), Individually and as Surviving Natural Parent of Dalton Thurmon, A Minor, et al. v. Edward SELLERS, et al. |
| Court | Tennessee Court of Appeals |
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Tim Edwards and James F. Horner, Memphis, TN, for appellant, Dana Hope Davis Thurmon Scott.
Charles Abbott, Memphis, TN, for appellants, Shane Thurmon and Tiffany Thurmon.
Mark Ledbetter, Memphis, TN, for appellant, Carl J. Fuhs.
Robert L. Moore and John H. Dotson, Memphis, TN, for appellees, Edward D. Sellers and Donald Sellers.
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Application for Permission to Appeal Denied by Supreme Court October 8, 2001.
DAVID R. FARMER, J., delivered the opinion of the court, in which HOLLY K. LILLARD, J., and HEWITT P. TOMLIN, Sp. J., joined.
This is a personal injury and wrongful death case arising from a collision between a pickup truck and a tractor trailer truck. The five-year-old son of plaintiffs Dana Scott and Shane Thurmon died as a result of the accident. The driver of the car was an "on call" employee of his father's business at the time. The plaintiffs sued the driver of the car and his father, alleging vicarious liability under the doctrine of respondeat superior and under the family purpose doctrine. Plaintiff Dana Scott also sued for consortium-type damages for the loss of her son. Although referring to it as a directed verdict, the trial court, pursuant to Rule 41.02 of the Tennessee Rules of Civil Procedure, entered an involuntary dismissal in favor of the defendants on the vicarious liability issue, under both respondeat superior and the family purpose doctrine, and on the loss of filial consortium claim. The trial court awarded damages, inter alia, to Dana Scott for the wrongful death of her son and to Carl Fuhs for personal injuries based upon his negligent infliction of emotional distress claim. We hold the following: (1) employer is not vicariously liable under the doctrine of respondeat superior for acts or omissions of "on call" employee when employee is not acting within the course and scope of his employment; (2) the requirements of the family purpose doctrine were met and defendant Donald Sellers, Sr. is vicariously liable under this theory; (3) parents may recover filial consortium damages in wrongful death actions for the death of their child; (4) the trial court's wrongful death award to Dana Scott was supported by the evidence; (5) Carl Fuhs sufficiently established a claim for negligent infliction of emotional distress; and (6) the personal injury award to Carl Fuhs is affirmed.
Shortly before noon on September 28, 1996, Donald Edward Sellers, Jr. (Eddie),1 with passengers Shane Thurmon (Mr. Thurmon) and his five-year-old son, Dalton Thurmon (Dalton), was traveling northbound on Crumpler Road in Shelby County in a 1995 Ford F-150 pickup truck when he approached the intersection of Crumpler Road and Holmes Road. At that time, there were stop signs located at the intersection of Crumpler Road and Holmes Road for traffic proceeding both northbound and southbound on Crumpler Road. Eddie stopped at the stop sign, but then proceeded into the intersection directly into the path of an eighteen-wheeler driven by Carl J. Fuhs (Mr. Fuhs) which was headed westbound on Holmes Road. Mr. Fuhs' semi collided with the pickup being driven by Eddie on its passenger side, causing the pickup to flip numerous times before it settled off of the road. The impact injured Mr. Thurmon and fatally injured Dalton. Eddie admits fault for the accident.
The 1995 pickup truck driven by Eddie was leased by Eddie's father, Donald E. Sellers, Sr. (Mr. Sellers) through Mr. Sellers' business, Donnie's Deli and Amoco. The insurance, gas, and license for the pickup truck was paid through Donnie's Deli and Amoco. Eddie, however, had exclusive control over the pickup truck, using it for errands associated with his business, Cheap Smokes, his father's business, and for personal activities outside of the scope of either of these businesses.
Eddie was a salaried employee of Donnie's Deli and Amoco. He was provided with a cell phone whereby he could be reached in order to run errands for Donnie's Deli and Amoco during the hours of 6:00 a.m. to 11:00 p.m., seven days a week. On the day of the accident, Eddie and Mr. Thurmon were on their way to a golf shop in Memphis so that Mr. Thurmon could look for a set of golf clubs. Eddie was not running any errands for Donnie's Deli and Amoco at the time of the accident; however, Eddie was "on call" and had with him the cell phone provided by Donnie's Deli and Amoco.
The driver of the eighteen-wheeler, Mr. Fuhs, was not related to, nor did he know, any of the individuals in the pickup truck at the time of the accident. Mr. Fuhs witnessed, from a few feet away, Dalton's body slumped over the back seat of the pickup truck and hanging halfway out of the truck's back window. A short while after the accident, Mr. Fuhs went to the doctor complaining of headaches and neck, back, and left knee pain. Mr. Fuhs also sought treatment from a psychologist for anxiety, sleeping problems, and flashbacks relating to the accident. Mr. Fuhs was treated for his medical problems and was diagnosed as having a permanent impairment of 12% to the body as a whole from his physical injuries and of 55-75% to the body as a whole from his mental distress.
Dalton's mother, Dana Hope Davis Thurmon Scott (Mrs. Scott), filed a complaint for wrongful death against Mr. Sellers, Eddie, Mr. Fuhs and his employer at the time, Printco Enterprises, and Shelby County. She later amended her complaint to allege liability against Mr. Sellers based upon the family purpose doctrine. Mrs. Scott amended her complaint a second time to include a claim for loss of consortium. Mr. Thurmon and his present wife filed a complaint against the same defendants for wrongful death, loss of consortium on behalf of Mrs. Thurmon, and damages he sustained in the accident. Mr. Fuhs filed a complaint against Mr. Sellers, d/b/a Donnie's Amoco, Eddie, d/b/a Cheap Smokes, and Shelby County for personal injury and negligent infliction of emotional distress. Prior to trial, all defendants except Mr. Sellers and Eddie were dismissed from the actions filed against them. The three cases were consolidated for trial and were tried before the court, sitting without a jury.
At the close of all proof, the Sellers moved for an involuntary dismissal2 as to Mr. Sellers on the ground that the plaintiffs had failed to make their case on the claim of vicarious liability. The trial court granted the motion and dismissed Mr. Sellers, finding that Eddie was not using the pickup truck in furtherance of the purpose and with the permission of Mr. Sellers. The Sellers also moved for an involuntary dismissal on Mrs. Scott's claim for loss of consortium of Dalton. The court granted this motion, holding that Jordan v. Baptist Three Rivers Hospital, 984 S.W.2d 593 (Tenn.1999), did not embrace a claim by a parent for the loss of consortium of a deceased child. Lastly, the Sellers moved for an involuntary dismissal on Mr. Fuhs' claim for negligent infliction of emotional distress, which the trial court denied. The trial court awarded damages to each of the plaintiffs in the following amounts:
1. To Mrs. Scott on her wrongful death
claim $700,000
2. To Mr. Thurmon for his personal
injuries $850,000
3. To Mrs. Thurmon for loss of
consortium $ 25,000
4. To Mr. Fuhs for his physical and
mental injuries $275,000
Eddie has appealed the verdict as to Mr. Fuhs, and Mrs. Scott and Mr. Thurmon have appealed their respective verdicts. Upon the Sellers' motion, this Court has ordered the appeals consolidated. The issues on appeal, as we perceive them, are as follows:
Since this matter was tried before the court sitting without a jury, our review of the trial court's findings of fact is de novo with a presumption of correctness, unless the preponderance of the evidence is otherwise. Tenn.R.App.P. 13(d). As the issues regard questions of law, our review is de novo with no presumption of correctness. See Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997); Tenn.R.App.P. 13(d).
The appellants in this action, Mrs. Scott, Mr. and Mrs. Thurmon, and Mr. Fuhs, state two bases for alleging that Mr. Sellers is vicariously liable for the acts of Eddie Sellers under the doctrine of respondeat superior. The two bases are the presumption of liability created by sections XX-XX-XXX and XX-XX-XXX of the Tennessee Code and the fact that Eddie Sellers was an "on call" employee of Donnie's Deli and Amoco at the time of the accident.
In order to impose liability under respondeat superior, it is necessary to show that the operator of a vehicle causing injury was, at the time of the accident, acting as a servant or employee of the owner, was engaged in the employer's business, and was acting within the scope of his employment. See Hamrick v. Spring City Motor Co., 708 S.W.2d 383,...
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