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Bara v. Clarksville Memorial Health Systems9/12/2002
ror in another jury instruction, which reads as follows: "In order for you to find either defendant to have been liable, you must find by a preponderance of the evidence that the death of Sophia Lynn Bara was reasonably foreseeable to the Defendant." Plaintiffs assert that they are not required to show that the specific injury, death, sustained by Sofia was foreseeable, only that some harm was foreseeable; thus, the court erred in stating that Plaintiff had to prove that death was foreseeable. However, Defendants argued that, to prove foreseeability, a plaintiff must show that harm of the same general character was reasonably foreseeable, so the jury instruction was proper. We find this instruction to be a misleading and improper statement of the law.
The Tennessee Supreme Court has clearly set out the foreseeability requirement for finding proximate cause.
Taken as a whole, our cases suggest a three-pronged test for proximate causation: (1) the tortfeasor's conduct must have been a "substantial factor" in bringing about the harm being complained of; and (2) there is no rule or policy that should relieve the wrongdoer from liability because of the manner in which the negligence has resulted in the harm; and (3) the harm giving rise to the action could have reasonably been foreseen or anticipated by a person of ordinary intelligence and prudence. See Smith v. Gore, 728 S.W.2d 738, 749-50 (Tenn. 1987); Ford Motor Co. v. Eads, 224 Tenn. 473, 457 S.W.2d 28, 32 (Tenn. 1970); Ray Carter, Inc. v. Edwards, 222 Tenn. 465, 436 S.W.2d 864, 867 (Tenn. 1969); Lancaster v. Montesi, 216 Tenn. 50, 390 S.W.2d 217, 221 (Tenn. 1965); Roberts v. Robertson County Bd. of Ed., 692 S.W.2d 863, 871 (Tenn. App. 1985); Caldwell v. Ford Motor Co., 619 S.W.2d 534, 541-43 (Tenn. App. 1981); Wyatt v. Winnebago Industries, Inc., 566 S.W.2d 276, 280-81 (Tenn. App. 1977). The foreseeability requirement is not so strict as to require the tortfeasor to foresee the exact manner in which the injury takes place, provided it is determined that the tortfeasor could foresee, or through the exercise of reasonable diligence should have foreseen, the general manner in which the injury or loss occurred. Roberts at 871; Wyatt at 280-81. `The fact that an accident may be freakish does not per se make it unpredictable or unforeseen.' City of Elizabethton v. Sluder, 534 S.W.2d 115, 117 (Tenn. 1976). It is sufficient that harm in the abstract could reasonably be foreseen. Shell Oil Co. v. Blanks, 46 Tenn. App. 539, 330 S.W.2d 569, 572 (Tenn. 1959). McClenahan v. Cooley, 806 S.W.2d 767, 775 (Tenn. 1991).
The defendant argues that the deceased's act was so unusual and extraordinary that the act was unforeseeable; therefore, the defendant was under no duty to guard against such an act. Accidents, however, `almost invariably are surprises, in the sense that the precise manner of their occurrence cannot be foreseen.' Spivey v. St. Thomas Hospital, 31 Tenn. App. 12, 211 S.W.2d 450, 455 (Tenn. Ct. App. 1947). Accordingly the particular harm need not have been foreseeable if another `harm of a like general character was reasonably foreseeable.' Id. at 457.
The defendant stresses that the accident was not foreseeable, since there is no indication that another patient had ever severed an endotracheal tube. The record, however, is clear that a risk of some harm is foreseeable if an endotracheal tube is occluded or impaired. . . . If a jury were to find that some harm resulting from occlusion was foreseeable in light of the circumstances, then the defendant would also owe a duty to protect Mr. Garrett from completely severing the endotracheal tube, even though this specific harm was never foreseen. Spivey, 211 S.W.2d at 457. Moon v.
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