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Whaley v. Perkins7/21/2005
n traffic movements, and the proper location and width of streets, and building line location.
H. To establish reasonable standards and procedures for subdivisions and resubdivisions to further the orderly layout and use of land; and to insure proper legal descriptions and monumenting of subdivided land.
I. To consider the availability of public facilities and determine if there is sufficient capacity to serve the proposed subdivision.
J. To minimize the pollution of air, streams, and ponds; to determine the adequacy of drainage facilities; to safeguard the water table; and to encourage the wise use and management of natural resources.
K. To encourage the preservation of the natural beauty and topography, and to encourage appropriate development with regard to these natural features.
We conclude that the harm of which the Whaleys complain-being unable to sell their property since it was subdivided illegally-does not bring them within the class of persons protected by the Shelby County Subdivision Ordinance. As another panel of this court stated, the mere violation of a statute does not automatically trigger the negligence per se doctrine:
The negligence per se doctrine is not a magic transformational formula that automatically creates a private negligence cause of action for the violation of every statute. Not every statutory violation amounts to negligence per se. To trigger the doctrine, the statute must establish a specific standard of conduct.... The courts consider a number of factors to determine whether the violation of a statute should trigger the negligence per se doctrine. The two threshold questions in every negligence per se case are whether the plaintiff belongs to the class of persons the statute was designed to protect and whether the plaintiff's injury is of the type that the statute was designed to prevent.
Rains v. Bend of the River, 124 S.W.3d 580, 590-1 (Tenn. Ct. App. 2003). The Whaleys' alleged inability to sell their home is, if true, a consequence of the statute providing for the four-acre minimum, but their alleged harm is not the kind of injury the statute was designed to prevent. As described in both the Tennessee Code and the Shelby County Subdivision Ordinance, these subdivision regulations were enacted largely for reasons related to quality of life, among them, assuring adequate public facilities for residents, minimizing pollution, providing for orderly layout and use of land, protecting the value of land, preventing overcrowding, and assuring effective traffic circulation. The harm alleged by the Whaleys is not a harm the regulations were designed to prevent, but rather, it is an accidental consequence of a statute enacted to prevent other harms to the community and its residents that could be caused by the unregulated subdivision of land.
We conclude that the trial court erred in instructing the jury on the issue of negligence per se, and the error "more probably than not" affected the jury verdict. Tenn.R.App.P. 36(b).
3. Did the trial court commit reversible error by permitting
Plaintiffs to assert claims for emotional distress that should have been barred by the one-year statute of limitations set forth in T.C.A. ยง 28-3-104(a)(1)?
The Appellants' next issue concerns the Whaleys' claims of emotional distress. The Appellants allege that the trial court erred in permitting the Whaleys to assert a claim in the amended complaint filed October 2000 for emotional distress, arguing that the claim is barred by the one-year statute of limitations applicable to personal injury claims. The Whaleys testify that they began having emotional distres
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