vicarious liability claim in Tennessee

2025The third is “when the agent is immune from suit, either by statute or by the common law.” Id., and, as relevant here, the fourth—known as the operation-of-law exception—is “when the plaintiff’s claim against the agent is procedurally barred by operation of law before the plaintiff asserts a vicarious liability claim against the principal.” Id. 3 The Gardner Court explained that “Taylor was designated ‘not for citation.’ Although the case may be cited to demonstrate a split of authority, see Tenn. Sup. Ct. R. 4(E)(2), it has no precedential value, see id. 4(E)(1) (“If an application for permis

2025Thus, the holding in Ultsch and Gardner is narrow—a conflict between the THCLA and the common-law operation-of-law exception arises by necessary implication only in the “unique” and “narrow” circumstances where the plaintiff sends pre-suit notice to the plaintiff is precluded from exclusively pursuing a vicarious liability claim against the principal. 325 S.W.3d at 106 .

2023The operation-of-law exception applied in those cases because “the plaintiffs’ belated efforts to amend their complaints against the principals to add a vicarious liability claim” implicated the “traditional policy reason[]” for the exception—that “plaintiffs should not be permitted to engage in an ‘encircling movement’ against the principal when they cannot pursue a ‘frontal attack’ on the agent.” Id. at 110-11 (first citing Graham v. Miller, 187 S.W.2d 622 , 625-26 (Tenn. 1945); and then citing Raines v. Mercer, 55 S.W.2d 263, 264 (Tenn. 1932), overruled on other grounds by Childress v. Chil

2023The operation-of-law exception applied in those cases because “the plaintiffs’ belated efforts to amend their complaints against the principals to add a vicarious liability claim” implicated the “traditional policy reason[]” for the exception—that “plaintiffs should not be permitted to engage in an ‘encircling movement’ against the principal when they cannot pursue a ‘frontal attack’ on the agent.” Id. at 110–11 (first citing Graham v. Miller, 187 S.W.2d 622 , 625–26 (Tenn. 1945); and then citing Raines v. Mercer, 55 S.W.2d 263, 264 (Tenn. 1932), overruled on other grounds by Childress v. Chil

2023The operation-of-law exception applied in those cases because “the plaintiffs’ belated efforts to amend their complaints against the principals to add a vicarious liability claim” implicated the “traditional policy reason[]” for the exception—that “plaintiffs should not be permitted to engage in an ‘encircling movement’ against the principal when they cannot pursue a ‘frontal attack’ on the agent.” Id. at 110-11 (first citing Graham v. Miller, 187 S.W.2d 622 , 625-26 (Tenn. 1945); and then citing Raines v. Mercer, 55 S.W.2d 263, 264 (Tenn. 1932), overruled on other grounds by Childress v. Chil

2023The operation-of-law exception applied in those cases because “the plaintiffs’ belated efforts to amend their complaints against the principals to add a vicarious liability claim” implicated the “traditional policy reason[]” for the exception—that “plaintiffs should not be permitted to engage in an ‘encircling movement’ against the principal when they cannot pursue a ‘frontal attack’ on the agent.” Id. at 110–11 (first citing Graham v. Miller, 187 S.W.2d 622 , 625–26 (Tenn. 1945); and then citing Raines v. Mercer, 55 S.W.2d 263, 264 (Tenn. 1932), overruled on other grounds by Childress v. Chil

2023Applying the operation-of-law exception, the trial court correctly concluded that the Plaintiff’s vicarious liability claim against the Defendant should be dismissed, see Abshure, 325 S.W.3d at 106 ; Creech, 281 S.W.3d at 366 , unless the operation-of-law exception conflicts with the HCLA. -3- Under Tennessee common law, vicarious liability may be imposed upon a principal for the negligent acts of its agent so long as the agent acts within the scope of the agent’s actual or apparent authority.

2023Of particular import for this case, this Court recognized that it would be improper to permit a plaintiff to proceed solely against a principal based on its vicarious liability for the conduct of an agent “when the plaintiff’s claim against the agent is procedurally barred by operation of law before the plaintiff asserts a vicarious liability claim against the -2- principal.” Id.; see also Creech v. Addington, 281 S.W.3d 363, 366 (Tenn. 2009).

2023The operation-of-law exception applied in those cases because “the plaintiffs’ belated efforts to amend their complaints against the principals to add a vicarious liability claim” implicated the “traditional policy reason[]” for the exception—that “plaintiffs should not be permitted to engage in an ‘encircling movement’ against the principal when they cannot pursue a ‘frontal attack’ on the agent.” Id. at 110-11 (first citing Graham v. Miller, 187 S.W.2d 622 , 625-26 (Tenn. 1945); and then citing Raines v. Mercer, 55 S.W.2d 263, 264 (Tenn. 1932), overruled on other grounds by Childress v. Chil

2023The operation-of-law exception applied in those cases because “the plaintiffs’ belated efforts to amend their complaints against the principals to add a vicarious liability claim” implicated the “traditional policy reason[]” for the exception—that “plaintiffs should not be permitted to engage in an ‘encircling movement’ against the principal when they cannot pursue a ‘frontal attack’ on the agent.” Id. at 110–11 (first citing Graham v. Miller, 187 S.W.2d 622 , 625–26 (Tenn. 1945); and then citing Raines v. Mercer, 55 S.W.2d 263, 264 (Tenn. 1932), overruled on other grounds by Childress v. Chil

2021In circumstances where the plaintiff has properly asserted a vicarious liability claim against the principal, the extinguishment of the plaintiff’s claims against the agent, by voluntary dismissal or otherwise, “merely produce[s] the same effect as if the [agent] had never been sued. . . .” Id. (quoting Rankhorn v. Sealtest Foods, 479 S.W.2d 649, 652 (Tenn. Ct. App. 1971)).

2021In circumstances where the plaintiff has properly asserted a vicarious liability claim against the principal, the extinguishment of the plaintiff’s claims against the agent, -7- by voluntary dismissal or otherwise, “merely produce[s] the same effect as if the [agent] had never been sued. . . .” Id. (quoting Rankhorn v. Sealtest Foods, 479 S.W.2d 649, 652 (Tenn. Ct. App. 1971)).

2011After much ensuing litigation, the daycare settled its claims against 9 Our Supreme Court noted in Abshure that Tennessee common law has identified four such exceptions: “(1) when the agent has been exonerated by a finding of non-liability; (2) when the plaintiff has settled its claim against the agent; (3) when the agent is immune from suit, either by statute or by the common law; and (4) when the plaintiff’s claim against the agent is procedurally barred by operation of law before the plaintiff asserts a vicarious liability claim against the principal.” Abshure, 325 S.W.3d at 106 (emphasis a

2010Ctr., 74 S.W.3d at 345-46 ; Huber v. Marlow, 2008 WL 2199827 , at *5 (ruling that the plaintiff could not make “an ‘end run’ around the statute of repose” by amending their complaint to raise a vicarious liability claim).

2025The third is “when the agent is immune from suit, either by statute or by the common law.” Id., and, as relevant here, the fourth—known as the operation-of-law exception—is “when the plaintiff’s claim against the agent is procedurally barred by operation of law before the plaintiff asserts a vicarious liability claim against the principal.” Id. 3 The Gardner Court explained that “Taylor was designated ‘not for citation.’ Although the case may be cited to demonstrate a split of authority, see Tenn. Sup. Ct. R. 4(E)(2), it has no precedential value, see id. 4(E)(1) (“If an application for permis

2021Plaintiff claimed that Varangon is responsible for the alleged negligent actions of the nurses who provided care to Plaintiff. “[U]nder the doctrine of respondeat superior, an employer may be held vicariously liable for torts committed by its employee within the course and scope of his or her employment.” Gunter v. Estate of Armstrong, 600 S.W.3d 916 , 923 (Tenn. Ct. App. 2019) (quoting Heflin v. Iberiabank Corp., 571 S.W.3d 727, 735 (Tenn. Ct. App. 2018)).

2016See Harper v. Churn, 83 S.W.3d 142, 146-48 (Tenn. Ct. App. 2002) (involving the assertion of a negligent entrustment claim and a vicarious liability claim at trial).

2010See, e.g., Tutton v. Patterson, 714 S.W.2d 268, 269, 271 (Tenn.1986); Craven v. Lawson, 534 S.W.2d 653, 654, 656-57 (Tenn.1976); Stewart v. Craig, 208 Tenn. 212, 218 , 344 S.W.2d 761, 763 (1961); Olympia Child Dev.

2010See, e.g., Tutton v. Patterson, 714 S.W.2d 268, 269, 271 (Tenn.1986); Craven v. Lawson, 534 S.W.2d 653, 654, 656-57 (Tenn.1976); Stewart v. Craig, 208 Tenn. 212, 218 , 344 S.W.2d 761, 763 (1961); Olympia Child Dev.

2010See, e.g., Tutton v. Patterson, 714 S.W.2d 268, 269, 271 (Tenn.1986); Craven v. Lawson, 534 S.W.2d 653, 654, 656-57 (Tenn.1976); Stewart v. Craig, 208 Tenn. 212, 218 , 344 S.W.2d 761, 763 (1961); Olympia Child Dev.

2010See, e.g., Tutton v. Patterson, 714 S.W.2d 268, 269, 271 (Tenn.1986); Craven v. Lawson, 534 S.W.2d 653, 654, 656-57 (Tenn.1976); Stewart v. Craig, 208 Tenn. 212, 218 , 344 S.W.2d 761, 763 (1961); Olympia Child Dev.