Day on Torts
The Tennessee Court of Appeals has ruled that where a vegetation management company contracted by the county electric service was only contractually responsible for a maintaining a certain area, and the diseased tree that allegedly fell and caused a fire was outside that area, the vegetation management company “owed no duty to prune” the tree and was not liable for the fire or the damages caused thereby.
In Allstate Property & Casualty Insurance Company v. Sevier County Electric System, No. E2021-01085-COA-R3-CV, 2022 WL 3589838 (Tenn. Ct. App. Aug. 23, 2022), several insurance companies filed suit against the City of Sevierville, Sevier County Electric System (SCES), and Wolf Tree, who was SCES’s vegetation management contractor (the cases filed by the insurance companies were consolidated). Plaintiffs asserted claims for negligence, nuisance and trespass based on damage to property they insured caused by a fire which was allegedly started when a diseased tree fell on an electrical service conductor.
Defendant Wolf Tree (Wolf) filed a motion for summary judgment arguing that it owed no duty to plaintiffs because “its contract with SCES explicitly stated that it was not to prune service drops,” because “it had no statutory or common law duty,” and because “Plaintiffs could show no evidence of a negligent or intentional trespass or nuisance.” The trial court eventually granted the motion for summary judgment, agreeing that defendant owed no duty here, and the Court of Appeals affirmed.
The Court began its negligence analysis by considering whether defendant owed a duty under the contract. After quoting extensively from defendant’s contract with SCES, the Court noted that plaintiffs argued that the tree in question “made contact with an energized service drop conductor,” and that the contract “expressly provided that Wolf was not to prune service drops.” Because there were distribution lines providing power to this drop, though, defendant conceded that the contract required it to clear a 10-foot area. The evidence showed, however, that the tree that fell was located beyond the 10-foot area to be cleared by defendant. The contract incorporated the terms of the SCES Manual, and looking at those two documents plus the deposition testimony from witnesses, the Court found that trees of a certain size and trees located beyond the 10-foot right of way were to be removed “at the sole discretion of SCES or SCES Project Representative.” The Court found that “neither the Contract nor the SCES Manual articulate[d] any requirement that Wolf inspect trees outside the right of way to determine whether they are hazardous or should be removed.”
Plaintiff attempted to rely on additional documents referred to in the SCES manual to support a finding of duty, but the Court noted that the Manual specifically referred to these additional documents in an attempt to provide proper pruning methods, not to add to defendant’s contractual duty. The Court ruled that the contract was clear and that defendant had no contractual duty to inspect or remove trees located beyond the 10-foot right of way.
The Court next considered plaintiff’s argument that defendant Wolf owed a statutory duty to remove the tree because Tennessee has adopted the National Electric Safety Code, with Tenn. Code Ann. § 68-101-104 providing for the pruning or removal of trees posing a danger to utilities. The Court of Appeals, however, agreed with the trial court’s finding that this provision “does not specifically bind contractors.” The Court wrote that “any duty to prune or remove vegetation that could impact electrical supply lines would lie first and foremost with SCES.” While there is an argument that such a duty can be delegated, the Court had already ruled that the contract between SCES and defendant did not cover the tree in question, so the Court concluded that no statutory duty existed here.
Plaintiffs also argued that defendant voluntarily assumed a duty to perform inspections beyond the scope of the contract by occasionally performing visual inspections of trees outside the right of way. While a party may assume a duty, the Court found that defendant did not do so in this case. Witnesses testified that defendant could point out potentially questionable trees to SCES during inspections, but that the full discretion for whether to remove any trees outside the 10-foot area and responsibility for any such removal rested with SCES. Because the contract made it clear that defendant had no duty to inspect or remove trees beyond the right of way, and that duty lied solely with SCES despite the occasional suggestion from defendant, the Court ruled that defendant “did not voluntarily assume a common law duty to inspect for hazardous trees located outside the right of way.”
Plaintiffs asserted that defendant was liable for negligence pursuant to a “common law duty,” with plaintiffs’ emphasizing the Satterfield factors for balancing the foreseeability and gravity of harm in reference to analyzing the element of duty. The Court noted, though, that “in instances where the defendant has made the plaintiff’s situation no worse (nonfeasance), there is generally no duty to act,” and that the balancing test has generally not been applied in cases of nonfeasance. (internal citations omitted). The Court ruled that the facts alleged by plaintiff constituted nonfeasance, and it found that defendant thus “maintained no common law duty to act.” (internal citation omitted).
Having ruled that defendant “owed no duty to Plaintiffs…by virtue of Wolf’s contract with SCES, Tennessee common law, public policy, statute, or applicable regulations,” the Court moved on to consideration of plaintiffs’ claims for trespass and nuisance. The Court wrote that the trespass by fire claim was “premised upon their allegation that Wolf negligently caused the property…to be invaded by fire,” and that since plaintiffs could not prove negligence in this case or that defendant “acted recklessly or engaged in an abnormally dangerous activity,” the trespass claim must fail. In addition, the Court found that defendant could “only be liable for nuisance if Plaintiffs were able to establish that Wolf’s acts constituted misfeasance rather than nonfeasance—in other words, if Wolf were the creator of the dangerous condition.” Because no such showing could be made, the nuisance claim also failed.
The Court of Appeals therefore affirmed summary judgment for defendant Wolf on all claims. This opinion is an interesting example of how a contract can shape the analysis of who owes a duty in a negligence case.
This opinion was released three months after oral arguments in this case.
Note: Chapter 30, Section 1 and Chapter 82, Section 1 of Day on Torts: Leading Cases in Tennessee Tort Law has been updated to include this decision.
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