harshness rule in Tennessee

2008Covington v. McMurray, 4 Tenn.C.C.A. 378 (1913); Gheen v. Osborne, 58 Tenn. 61 (1872).

2000In exceptional cases, the application of the doctrine of equitable estoppel has been used to mitigate the harshness of this rule, “where to enforce the statute of frauds would make it an instrument of hardship and oppression, verging on actual fraud.” Baliles, 578 S.W. 2d 624 (citing Covington v. McMurray, 4 Tenn. C.C.A. 378 (1913); and Gheen v.Osborn, 58 Tenn. 61 (1872).

2013However, “[t]o 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.”3 Id. (citing Bradshaw, 854 S.W.2d at 871 ; Nichols, 844 S.W.2d at 661 ); see also Downs ex rel.

2013However, “[t]o 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.”3 Id. (citing Bradshaw, 854 S.W.2d at 871 ; Nichols, 844 S.W.2d at 661 ); see also Downs ex rel.

2013However, “[t]o 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.”3 Id. (citing Bradshaw, 854 S.W.2d at 871 ; Nichols, 844 S.W.2d at 661 ); see also Downs ex rel.

1997Bradshaw v. Daniel, 854 S.W.2d at 871 ; Nichols v. Atnip, 844 S.W.2d at 661 .

2013Downs v. Bush, 263 S.W.3d 812, 819 (Tenn. 2008) (“[I]f an individual stands in a special relationship to another individual who is the source of the danger . . . then the individual assumes an affirmative duty to exercise reasonable care to either control the danger or protect the vulnerable.”) (citations omitted). “[I]n order for the duty to control a third party’s conduct to arise, the actor must 2 Generally, “negligence cases are not amenable to disposition on summary judgment.” Fruge v. Doe, 952 S.W.2d 408, 410 (Tenn. 1997) (citing McClenahan v. Cooley, 806 S.W.2d 767 , 775–76 (Tenn. 1991)

2013Downs v. Bush, 263 S.W.3d 812, 819 (Tenn. 2008) (“[I]f an individual stands in a special relationship to another individual who is the source of the danger . . . then the individual assumes an affirmative duty to exercise reasonable care to either control the danger or protect the vulnerable.”) (citations omitted). “[I]n order for the duty to control a third party’s conduct to arise, the actor must 2 Generally, “negligence cases are not amenable to disposition on summary judgment.” Fruge v. Doe, 952 S.W.2d 408, 410 (Tenn. 1997) (citing McClenahan v. Cooley, 806 S.W.2d 767 , 775–76 (Tenn. 1991)

2011The practice effectively diluted the “physical manifestation” or “injury” rule, Eskin v. Bartee, 262 S.W.3d 727 , 734 & n. 18 (Tenn. 2008), and created a confusing patchwork of “ad hoc exceptions,” Camper, 915 S.W.2d at 445.

2008Goodloe v. Goodloe, supra. The harshness of this rule has been mitigated by the application of the doctrine of equitable estoppel in exceptional cases where to enforce the Statute of Frauds would make it an instrument of hardship and oppression, verging on actual fraud.

2004Hines v. Willcox, 96 Tenn. 148 , 33 S.W. 914 (1896) (“Hines I”); Stenberg v. Willcox, 96 Tenn. 163 , 33 S.W. 917 (1896).

2004Hines v. Willcox, 96 Tenn. 148 , 33 S.W. 914 (1896) (“Hines I”); Stenberg v. Willcox, 96 Tenn. 163 , 33 S.W. 917 (1896).

2000See also Decherd v. Blanton, 35 Tenn. 373 (1855); Williams v. Conrad, 30 Tenn. 412 (1850); Bloomstein v. Clees Brothers, 3 Cooper’s Tenn. Ch. 433 (1877); and Interstate Co. v. Bry-Block Mercantile Co., 30 F2d 172 (D.C.W.D.

1995This unpleasant result is perhaps what the federal Sixth Circuit was focusing upon when, in the case of Murphree v. Raybestos-Manhattan, Inc., 696 F.2d 459, 462 (6th Cir.1982) it predicted that ”[t]he Tennessee Supreme Court will no longer use the vested rights doctrine to prevent the Tennessee legislature from ameliorating the harshness of a rule that bars a plaintiff’s claim before he discovers it.” See also Clay v. Johns-Manville Sales Corp., 722 F.2d 1289 (6th Cir.1983); Cathey v. Johns-Manville Sales Corp., 776 F.2d 1565 (6th Cir.1985).

1995(Emphasis added.) [2] Chapter 703, Public Acts of 1978, effective July 1, 1978. [3] Chapter 162, Public Acts of 1979, effective July 1, 1979. [4] T.C.A. § 29-28-103(b) provides, in pertinent part, as follows: The foregoing limitation of actions [T.C.A. § 29-28-103(a)] shall not apply to any action resulting from exposure to asbestos ... [5] See footnote 2, this opinion. [6] See footnote 3, this opinion. [7] See footnote 4, this opinion. [8] This unpleasant result is perhaps what the federal Sixth Circuit was focusing upon when, in the case of Murphree v. Raybestos-Manhattan, Inc., 696 F.2d 459

1995This unpleasant result is perhaps what the federal Sixth Circuit was focusing upon when, in the case of Murphree v. Raybestos-Manhattan, Inc., 696 F.2d 459, 462 (6th Cir.1982) it predicted that ”[t]he Tennessee Supreme Court will no longer use the vested rights doctrine to prevent the Tennessee legislature from ameliorating the harshness of a rule that bars a plaintiff’s claim before he discovers it.” See also Clay v. Johns-Manville Sales Corp., 722 F.2d 1289 (6th Cir.1983); Cathey v. Johns-Manville Sales Corp., 776 F.2d 1565 (6th Cir.1985).

1995(Emphasis added.) [2] Chapter 703, Public Acts of 1978, effective July 1, 1978. [3] Chapter 162, Public Acts of 1979, effective July 1, 1979. [4] T.C.A. § 29-28-103(b) provides, in pertinent part, as follows: The foregoing limitation of actions [T.C.A. § 29-28-103(a)] shall not apply to any action resulting from exposure to asbestos ... [5] See footnote 2, this opinion. [6] See footnote 3, this opinion. [7] See footnote 4, this opinion. [8] This unpleasant result is perhaps what the federal Sixth Circuit was focusing upon when, in the case of Murphree v. Raybestos-Manhattan, Inc., 696 F.2d 459

1993Lindsey, 689 S.W.2d at 859 ; Tarasoff, 551 P.2d at 343 ; Restatement (Second) of Torts § 315 (1964).

1965The harshness of the requirement of enticement has been alleviated partially by the so-called “playground *291 theory”, as voiced in Gatlinburg Construction Co. v. McKinney, 37 Tenn.App. 343 , 263 S.W.(2d) 765 .

1965The harshness of the requirement of enticement has been alleviated partially by the so-called “playground *291 theory”, as voiced in Gatlinburg Construction Co. v. McKinney, 37 Tenn.App. 343 , 263 S.W.(2d) 765 .