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Cotten v. Wilson

Supreme Court of Tennessee, Nashville

June 19, 2019

BENJAMIN SHEA COTTEN, as personal representative for the ESTATE OF CHRISTINAMARIECOTTEN, Deceased, et al.

          Session May 23, 2018 [1]

          Appeal by Permission from the Court of Appeals Circuit Court for Williamson County No. 2015-194 Michael W. Binkley, Judge

         In this wrongful death action, the plaintiff estate seeks to hold the defendant liable for negligently facilitating the decedent's suicide. While staying alone in the defendant's home, the adult decedent committed suicide by shooting herself with a gun that was unsecured in the defendant's home. The decedent's estate sued the defendant, alleging that he should have known the decedent was potentially suicidal and that he negligently facilitated the suicide by failing to secure the gun while the decedent was in his home. The trial court granted summary judgment in favor of the defendant, and the Court of Appeals reversed. We hold that the evidence is insufficient for a trier of fact to find that the decedent's suicide was a reasonably foreseeable probability; consequently, the decedent's suicide constitutes a superseding intervening event that breaks the chain of proximate causation. Accordingly, we reverse the Court of Appeals and affirm the trial court's grant of summary judgment in favor of the defendant.

         Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Reversed; Judgment of the Trial Court Affirmed

          Christopher M. Jones and Britney K. Pope, Nashville, Tennessee, for the Defendant/Appellant, Jerry Scott Wilson.

          H. Douglas Nichol, Knoxville, Tennessee; and John Chadwick Long, Gallatin, Tennessee, for the Plaintiff/Appellee, Benjamin Shea Cotten, as personal representative for the Estate of Christina Marie Cotten, deceased.

          Holly Kirby, J., delivered the opinion of the Court, in which Jeffrey S. Bivins, C.J., and Cornelia A. Clark and Roger A. Page, JJ., joined. Sharon G. Lee, J., filed a dissenting opinion.



         Factual and Procedural Background[2]

         Benjamin Shea Cotten and the decedent, Christina Marie Cotten ("Christina"), [3]were married in 2006. Together they had a son in 2010.

         Later in 2010, Christina became a registered nurse and began working as a psychiatric nurse in the Military Unit at Skyline Hospital in Nashville, Tennessee. While working at Skyline, she met Defendant/Appellant Dr. Jerry Scott Wilson ("the Defendant"), a board-certified psychiatrist. The Defendant was the director of the Military Unit in which Christina worked. In May 2011, Christina and the Defendant began an affair.

         After Mr. Cotten discovered that Christina was having an affair with the Defendant, Mr. Cotten and Christina separated. Eventually, the affair led to the demise of their marriage. In June 2012, Christina's divorce from Mr. Cotten was finalized. The divorce decree provided for Christina and Mr. Cotten to exercise equal parenting time with their son.

         Meanwhile, the relationship between Christina and the Defendant continued. In October 2013, Christina was evicted from the place where she was living for failure to pay rent. She then moved into the Defendant's home in Nashville.

         Subsequently, the Defendant noticed that Christina was having frequent crying spells and seemed to be struggling with eviction, job loss, and her new job not working out. She was not as energetic and motivated as she once was, and on certain days she did not take care of herself.

         In late 2013, Christina informed the Defendant that she had sought treatment for depression and anxiety from Dr. Roy Asta, a psychiatrist who had worked with both the Defendant and Christina at Skyline Hospital. Christina visited Dr. Asta twice in 2013, once in March and once in June. The Defendant knew Christina was taking Prozac and Klonopin at the end of 2013.

         In early 2014, the Defendant was making plans to move into a new house in Franklin, Tennessee; Christina intended to move to Franklin with him. On January 23, 2014, Mr. Cotten filed a petition in state court for primary custody of his son because of Christina's plan to move to Franklin.

         A few days after Mr. Cotten's petition was filed, on the evening of January 26, 2014, Christina's friends[4] took her to the emergency room of Metro Nashville General Hospital based on Christina's overdose of Ativan and the consumption of nearly a full bottle of wine.[5] Lab reports confirmed that Christina had both alcohol and benzodiazepines in her system. Christina was diagnosed with depression, anxiety disorder, acute alcohol intoxication, and medication overdose. Although Christina initially denied that she was attempting to commit suicide, the attending physician was of the opinion that Christina had attempted suicide and was a suicide risk. Consequently, Christina was moved to Middle Tennessee Mental Health Institute (MHI), a state funded psychiatric hospital, for inpatient psychiatric treatment and further evaluation and monitoring.

         After arriving at MHI, Christina was evaluated by Dr. Philip Brooks, a psychiatrist. He found her to be somewhat embarrassed and distraught. Christina called the Defendant and told him that she was being admitted to MHI. She denied that she had tried to commit suicide and explained to the Defendant that she had passed out from drinking and taking a couple of extra sleeping pills. The Defendant then spoke on the telephone with Dr. Brooks. The MHI medical records contain the following note: "[Medical Officer of the Day] spoke[ ] with boyfriend (Dr. Jerry Wilson), and boyfriend assured her safety especially since they lived together. Patient will see her Outpatient Psychiatrist within seven days." It was Dr. Brooks' understanding that the Defendant would pick Christina up and take her home with him. The Defendant assured Dr. Brooks that Christina would follow up with her outpatient psychiatrist within the allotted seven days.[6] Dr. Brooks then told Christina that she was being released on the condition that she would follow up with her psychiatrist. One reason Dr. Brooks decided to discharge Christina was that he knew she was going home with the Defendant; the fact that the Defendant promised that Christina would follow up with an outpatient psychiatrist had a huge bearing on Dr. Brooks' decision to send Christina home.

         Neither the Defendant nor Dr. Brooks informed Dr. Asta of Christina's suicide attempt. Although Christina had initially denied that she attempted suicide, she later admitted to the Defendant that she actually had been contemplating suicide at the time of her January 2014 hospitalization.

         In February 2014, Christina and the Defendant moved to the Defendant's new house in Franklin. In April 2014, Mr. Cotten's petition for majority parenting time was granted.[7]

         In June 2014, the Defendant noticed that Christina was having frequent crying spells because of the loss of equal parenting time with her son. The crying spells were varied, usually once or twice a week. She wanted to sleep a lot and she ruminated on the loss of parenting time; Christina's depression was extremely variable.

         Around that same time period in June 2014, over a year after her previous visit, Christina went to Dr. Asta for treatment for the first time since her suicide attempt. She was doing poorly and was in distress and crying. He continued her on the same treatment and increased some medication.

         Prior to mid-August 2014, the Defendant had told Christina that he no longer trusted her and did not feel he would ever be able to regain trust in her. He told her she was not making good decisions and was constantly putting their families in jeopardy. In mid-August 2014, the Defendant broke up with Christina; he told her that he did not see a future for their relationship and that it was "time to move on." He helped Christina pack her things, and she moved out of his home. Christina was upset about the break-up. However, the two still had an off-and-on relationship. They talked, texted, emailed, had physical relations, and occasionally talked about reconciling. During the months after the break-up, Christina spent the night with the Defendant five or six times.

         Meanwhile, on August 29, 2014, Christina visited Dr. Asta again. She reported to him that she had broken up with her boyfriend, whom Dr. Asta knew to be the Defendant. She described the relationship as "being rocky." Dr. Asta noted that Christina was doing well on that occasion.

         On October 14, 2014, Christina made her last contact with Dr. Asta. She called him for refills of her medication, and she told Dr. Asta she was planning to move back in with the Defendant. Dr. Asta recorded in his notes that he specifically asked Christina whether she had suicidal ideations, and she said that she had none. When asked whether he ever questioned Christina's truthfulness, Dr. Asta said he did not because Christina "seemed pretty reliable." Christina never told Dr. Asta about her January 2014 suicide attempt, and he did not learn about it until after her death. Dr. Asta never contacted the Defendant to discuss his (the Defendant's) relationship with Christina.

         In October 2014, the Defendant's father gave him an old 32 revolver handgun and some ammunition for protection.[8] The Defendant stored the gun and ammunition in a china cabinet buffet in his dining room area; the gun was concealed in a sock in one drawer, and the ammunition was concealed in a sock in a different drawer.

         On October 26, 2014, the Defendant, Christina, and Christina's son went out to lunch and then returned to the Defendant's house. While Christina and her son were in the den, the Defendant retrieved the handgun from the china cabinet and took it to the den to show it to Christina and her son.[9] The Defendant told Christina it was referred to as a lady's purse gun and told her a little history. He also told Christina the reason he had the gun was that he was concerned for his own safety. He explained that he had been assaulted before, and he also said that he was concerned about the chaotic relationship between Christina and Mr. Cotten. Christina handled the gun. Afterwards, the Defendant took the gun back to the china cabinet. The gun was out of the china cabinet for ten to fifteen minutes. Although the undisputed evidence shows that the dining room was adjacent to the den, it is unclear whether Christina saw where the Defendant kept the gun at that time.[10]

         Later that same evening, the Defendant told Christina he was interested in pursuing a relationship with another woman. He did this because Christina had brought some things to his house for Halloween and he felt that Christina was "trying to nest again." Christina became upset and accused the Defendant of "just using her for sex." She then left abruptly, storming out the door. Nevertheless, Christina and the Defendant continued to talk and had mixed feelings about reconciling.

         A few days later, around October 29, 2014, Christina's son told his father, Mr. Cotten, that the Defendant "had guns and was fighting with [Christina]." Mr. Cotten became concerned about Christina and called the police to request a welfare check on her. Apparently operating under the mistaken belief that Christina was still living with the Defendant, Mr. Cotten told Christina that he was considering asking the court to have her visits with their son supervised if she continued to live with the Defendant.[11]

         About a week later, around November 1, 2014, Christina was evicted from her friend's apartment. She contacted the Defendant, who was out of town on a business trip, and asked to stay at his house because she did not have anywhere to live. The Defendant let Christina stay at his house because she had nowhere else to go.

         On Wednesday, November 5, 2014, the Defendant returned to his house while Christina was still staying there. The Defendant spent one night at his house with Christina. The next morning, he went to stay at his parents' house in Harrogate, Tennessee, a few hours away. According to the Defendant, Christina appeared to be in good spirits when he left; she commented about her friends and her new job. That Friday, November 7, the two exchanged "pleasant" text messages about their relationship and other things. She sent him a "funny dog pic" and a message about a television show. Subsequently, Christina went "off the radar" until the Defendant received a text message from her Sunday morning, which indicated no problems.

         That weekend, Mr. Cotten had trouble communicating with Christina. On that Friday, November 7, 2014, Christina was expected to pick up her son from Mr. Cotten's mother to exercise parenting time with him that weekend at Christina's father's house. Christina called Mr. Cotten's mother on Friday, however, and said that she was stuck in traffic and would pick her son up the next day. Christina never called Mr. Cotten's mother after that, and she never went to pick up her son. Mr. Cotten became concerned when Christina did not show up. He texted Christina a few times but never heard back from her. On Sunday, Mr. Cotten sent a text message to Christina telling her that he was going to call the police if he did not hear from her, but he never got a response. Mr. Cotten did not call the police, however, because he did not expect that anything was seriously amiss.

         On Sunday, November 9, 2014, the Defendant returned home around 3:00 or 4:00 in the afternoon. He said that he was surprised to see Christina's car in his garage, because "[i]t was [his] understanding that [Christina] was going to be at her dad's with her son that weekend." He entered the house and yelled for Christina but got no response. Eventually the Defendant found Christina upstairs, lying in a bed, unconscious from a self-inflicted gunshot wound to the chest. He found his loaded gun in the bed near Christina. The Defendant called 9-1-1 and began CPR. Despite these efforts, Christina did not survive.

         Much later, during the pendency of this lawsuit, emails and photos were discovered on Christina's computer indicating that she had been involved in prostitution and/or X-rated filmmaking for over a year prior to her death, "back to 2013." She engaged in this conduct without the knowledge of Mr. Cotten, the Defendant, or any of her close friends.[12] Both Mr. Cotten and the Defendant formed the opinion that Christina had been living a "double life" for over a year.

         On May 4, 2015, Mr. Cotten, as representative of Christina's estate, filed this wrongful death negligence lawsuit against the Defendant.[13] In the complaint, the Estate claimed that the Defendant, as a homeowner, owed a duty to Christina to properly store and maintain his firearm in a safe manner and condition. The Estate further claimed the Defendant knew or reasonably should have known that, if Christina had access to the firearm, there would be a great likelihood that she would harm herself, particularly because he knew of her fragile mental state and suicidal tendencies. The allegations in the complaint centered on the Defendant's allegedly negligent maintenance and storage of a firearm. The complaint alleged that the Defendant was negligent by:

A. Keeping a firearm in the residence while Christina was residing there;
B. Failing to properly lock the firearm in a locked cabinet, safe, gun cabinet, or storage case to prevent access by Christina;
C. Failing to utilize a gun lock on the firearm;
D. Maintaining the firearm loaded with ammunition;
E. Failing to store the ammunition in a separate location from the firearm;
F. Failing to store the ammunition in a locked storage container; and
G. Keeping the firearm and ammunition in locations known and accessible to Christina.

         The Estate further claimed that the Defendant's actions constituted gross negligence, justifying an award of exemplary damages. The Estate asserted that the Defendant's negligence was the sole and proximate cause of Christina's death.

         In his answer, the Defendant admitted that he was aware Christina "suffered from depression and other possible psychiatric issues," but he denied committing any negligent act or omission and denied owing Christina any duty of care. The Defendant claimed Christina's suicidal actions constituted an unforeseeable intervening, superseding act for which he was not liable. The Defendant also asserted Christina's comparative fault as a defense.[14]

         On April 8, 2016, the Defendant filed a motion for summary judgment. He claimed he was entitled to a judgment as a matter of law on the undisputed facts for several reasons: (1) he did not owe Christina a duty of care because Christina's suicide was not reasonably foreseeable and because he did not have a special relationship with Christina; (2) even if he had a duty of care to Christina, he did not breach that duty because of the concealed and unloaded manner in which he stored his gun and, in any event, he could not have reasonably foreseen that she would use the gun to take her own life; (3) he was not the sole cause-in-fact and/or proximate cause of Christina's death, and he was at least not more at fault than Christina under the doctrine of comparative fault; and (4) Christina's intentional act of suicide was an independent intervening cause of her death that precluded his liability.

         In September 2016, the trial court conducted a hearing on the Defendant's motion for summary judgment. On October 21, 2016, the trial court entered a written order granting the motion.

         The trial court first held, as a matter of law, that the Defendant did not owe a duty to Christina. The trial court concluded that the Defendant, as a homeowner and a gun owner, did not owe a duty to Christina regarding the manner in which he cared for and stored his gun because the record contained "no proof that, at the time of [Christina's] death, it was foreseeable she would commit suicide" or that Christina "would use [the Defendant's] gun to commit suicide." The trial court also granted summary judgment in favor of the Defendant on the Estate's claim that the Defendant was negligent for his failure to follow up on Christina's mental health treatment after she was discharged from MHI in January 2014.[15] This claim, the trial court decided, was based on the Defendant's failure to act, i.e., nonfeasance. The trial court observed that a person who has a special relationship with the plaintiff has an affirmative duty to protect the endangered person, but it held the Defendant had no such affirmative duty regarding the "nonfeasance" claim of failure to ensure Christina's follow-up care because "there [was] no relationship [between Christina and the Defendant] sufficient enough to impose a duty on [the Defendant]."

         The trial court then determined the Defendant was entitled to summary judgment for an additional reason. It held the Defendant's conduct was neither the cause-in-fact nor the proximate cause of the Christina's death. It noted that Tennessee courts "have consistently recognized that the independent intervening cause doctrine may properly be invoked in cases involving self-inflicted injury or death." (Quoting Rains v. Bend of the River, 124 S.W.3d 580, 593 (Tenn. Ct. App. 2003)). Although there are exceptions to this general rule, the trial court held, none of them apply in this case because Christina's suicide was not reasonably foreseeable:

After reviewing the undisputed facts, the Court concludes [the Defendant] was not a substantial factor in bringing about [Christina's] suicide, nor was [Christina's] suicide reasonably foreseeable. As previously discussed, while it is undisputed [Christina] attempted suicide in January 2014, there is nothing in the record which reveals [Christina's] mental state, sheds light on her mental struggles, or demonstrates she was a continued suicide risk from January 2014 to November 2014. Instead, on the weekend of her death, both [the Defendant] and Mr. Cotten were under the belief [Christina] was to pick up [her son] and go to her parent's house in Chattanooga. Viewing the facts in [a] light most favorable to the [Estate], it appears as if no one was aware [Christina] was suicidal or even struggling with suicidal thoughts at the time of her death.
Thus, even though [Christina] had a history of mental illness, based on the undisputed facts, the Court finds [Christina] was in control of her life and willfully and deliberately chose to end her own life.

         Based on that analysis, the trial court concluded that Christina's "suicide was an intervening cause, which broke the chain of liability." The trial court's conclusions regarding duty and proximate cause rendered moot any issues related to comparative fault. The Estate filed a timely appeal.

         The Court of Appeals reversed. In re Estate of Cotten, No. M2016-02401-COA-R3-CV, 2017 WL 4083645 (Tenn. Ct. App. Sept. 15, 2017), perm app. granted (Tenn. Jan. 18, 2018) (hereinafter "Cotten"). It first noted that "the issue of whether a legal duty is owed is largely dependent upon whether the risk was foreseeable and significant." Id. at *7 (citing Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 366-67 (Tenn. 2008); and McCain v. Fla. Power Corp., 593 So.2d 500, 502-03 (Fla. 1992)). Contrary to the trial court, however, the appellate court held that the undisputed facts were sufficient to support a finding that Christina's suicide was a foreseeable consequence of the Defendant's actions. The Court of Appeals reasoned:

Based on Decedent's history of depression and previous suicide attempt, coupled with the loss of custodial rights concerning her son and the termination of her relationship with [the Defendant], it was reasonably foreseeable that Decedent might inflict harm upon herself by utilizing the deadly weapon of which [the Defendant] made her aware. [The Defendant's] act of showing the firearm to Decedent and then returning it to an unsecured location within the home created an unreasonable risk of harm to the Decedent. We further conclude that the degree of foreseeability of the risk and the gravity of the harm outweighed the burden that would be imposed if [the Defendant] had engaged in an alternative course of conduct that would have prevented the harm.

Id. at *9. The intermediate appellate court held the allegations that the Defendant "display[ed] his firearm to [Christina] and plac[ed] it in a location that was known and accessible to [Christina]" described an act of misfeasance, rather than nonfeasance. Id. at *10. If it was misfeasance, the intermediate appellate court held, it was not necessary to find a special relationship in order to conclude that a duty existed. Regarding the allegations based on the Defendant's failure to act (nonfeasance), however, the appellate court upheld the grant of summary judgment on those claims because there was no special relationship between the Defendant and Christina. Id.

         The Court of Appeals also reversed the trial court's holding on proximate cause. Id. at *11-12. The appellate court acknowledged the general rule that suicide and other self-inflicted injury generally qualify as a superseding intervening cause of the plaintiff's injury, and it also acknowledged that courts have recognized certain categorical exceptions to the rule. Id. at *11. It stated, however, that "applicability of the independent, intervening cause doctrine hinges on foreseeability, rather than whether the situation fits a particular exception." Id. at *12 (citing Ramsey v. Cocke Cnty., No. E2016-02145-COA-R3-CV, 2017 WL 2713213, at *6 (Tenn. Ct. App. June 23, 2017)). The appellate court held that, regardless of whether a case fits an exception to the general rule, "liability could exist when a defendant knew or should have known that the decedent presented a reasonably foreseeable risk of suicide, as demonstrated by evidence indicating that the decedent's demeanor or actions should have raised concerns about her mental stability and that the defendant's actions increased such risk." Id. In this case, the court held, "reasonable minds could draw more than one conclusion regarding causation," so there was a fact issue that precluded summary judgment for the Defendant. Id. The Court of Appeals did not address whether the Defendant's liability could be reduced by the comparative fault of Christina.[16] We granted the Defendant's application for permission to appeal to this Court.

         Issues on Appeal and Standard of Review

         The Defendant argues that we should affirm the trial court's grant of summary judgment. He claims that the undisputed material facts demonstrate that he had no duty to Christina because, on the weekend of November 9, 2014, it was not reasonably foreseeable that she would commit suicide or use his gun to do so. The Defendant also argues that he did not have a special relationship with Christina, so he had no affirmative duty to protect her and cannot be held liable for nonfeasance. The Defendant maintains that he is entitled to summary judgment on proximate cause because Christina's suicide was the superseding intervening cause of her death.

         In response, the Estate argues that, as a matter of law, the Defendant had a duty to Christina because her suicide was a foreseeable consequence of the totality of his negligent actions. The Estate contends that the undisputed evidence is sufficient to create a jury question on whether the Defendant's negligent conduct was the proximate cause of Christina's suicide or whether, instead, Christina's deliberate act of suicide was a superseding intervening cause.

         In this appeal, we review the trial court's grant of summary judgment. A trial court's ruling on a motion for summary judgment presents a question of law; we review it de novo without a presumption of correctness in the trial court's decision. Rye v. Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015) (citing Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997)). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Tenn. R. Civ. P. 56.04. "[T]he evidence must be viewed in a light most favorable to the claims of the nonmoving party, with all reasonable inferences drawn in favor of those claims." Rye, 477 S.W.3d at 286. In this appeal, we must "make a fresh determination of whether the requirements of Rule 56 of the Tennessee Rules of Civil Procedure have been satisfied." Id. at 250 (citing In re Estate of Brown, 402 S.W.3d 193, 198 (Tenn. 2013)). The moving party may satisfy its burden of production "(1) by affirmatively negating an essential element of the nonmoving party's claim or (2) by demonstrating that the nonmoving party's evidence at the summary judgment stage is insufficient to establish the nonmoving party's claim or defense." Id. at 264.


         To establish a prima facie claim of negligence, the plaintiff must prove the following essential elements: "(1) a duty of care owed by defendant to plaintiff; (2) conduct below the applicable standard of care that amounts to a breach of that duty; (3) an injury or loss; (4) cause in fact; and (5) proximate, or legal, cause." Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 364 (Tenn. 2009) (quoting McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995)). In this case, the trial court granted summary judgment based on its conclusion that the Defendant had negated the elements of both duty and legal (proximate) cause. In our view, the pivotal issue is legal cause, specifically, whether Christina's suicide constitutes a superseding intervening event that cuts off any liability the Defendant may have for Christina's death. Consequently, we focus our analysis on the element of proximate or legal cause. See Shipley v. Williams, 350 S.W.3d 527, 567 (Tenn. 2011) ("[I]n seeking summary judgment, it is enough for a party to negate one element of a claim; it is not necessary that every element be negated.") (quoting Jacobs v. Nashville Ear, Nose & Throat Clinic, 338 S.W.3d 466, 477 (Tenn. Ct. App. 2010)).

         Legal Cause and Superseding Intervening Events

         A plaintiff in a wrongful death negligence action must prove that the defendant's conduct was both the cause-in-fact and the legal cause of the decedent's death. King v. Andersen Cnty., 419 S.W.3d 232, 246 (Tenn. 2013) (citations omitted). Cause-in-fact, sometimes called actual cause, means "the injury or harm would not have occurred 'but for'" the defendant's negligent conduct." Id. (quoting Kilpatrick v. Bryant, 868 S.W.2d 594, 598 (Tenn. 1993)). "The concept of 'legal cause' was formerly known as 'proximate cause.' It connotes a policy decision made by the judiciary to establish a boundary of legal liability and to deny liability for conduct that could otherwise be actionable."[17] Rains, 124 S.W.3d at 592 (citations omitted). "An actor's negligent conduct is the legal cause of harm to another if the conduct is a substantial factor in bringing about the harm and there is no rule of law relieving the actor from liability because of the manner in which the actor's negligence resulted in the harm." Id. "[D]isputed issues regarding legal cause, intervening cause, and foreseeability must be left to the jury" unless "the undisputed facts and inferences to be drawn from the facts enable reasonable persons to draw only one conclusion." Id. at 596.

         We determine whether the defendant's negligence was the legal or proximate cause of the plaintiff's death by using a three-part test:

(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.

McClenahan v. Cooley, 806 S.W.2d 767, 775 (Tenn. 1991), quoted in Haynes v. Hamilton Cnty., 883 S.W.2d 606, 612 (Tenn. 1994), and cited with approval in McClung v. Delta Square Ltd. P'ship, 937 S.W.2d 891, 905 (Tenn. 1996). The third part of the test, foreseeability, plays an important role in determining whether the defendant's conduct was the legal cause of the injury or death. While a person who owes a duty to another is expected to be vigilant, he is not expected to be prescient:

The critical factor in distinguishing between vigilance and prescience is foreseeability, the third element in the proximate cause analysis. . . . Foreseeability is the crucial factor in the proximate cause test because, if the injury that gives rise to a negligence case could not have been reasonably foreseen, there is no proximate cause and thus no liability despite the existence of negligent conduct. "A risk is foreseeable if a reasonable person could foresee the probability of its occurrence or if the person was on notice that the likelihood of danger to the party to whom is owed a duty is ...

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