Old dogs can learn new tricks and maturing lawyers can learn something new in the law.
In Koczera v. Steele, Case No. E2017-02056-COA-R3-CV, on August 20, 2018, the Tennessee Court of Appeals held that litigants (individuals or organizations) simply do not have a duty “to assist plaintiffs in their quest to serve process” on them. And the law does not require a litigant to “assist a plaintiff in correcting its admitted error.”
This case involved a healthcare liability action. Plaintiffs served the defendant physician’s office manager. Defendant asserted insufficiency of service of process on the basis that the office manager was not authorized to accept service of process. This defendant was dismissed. Then, plaintiffs sued the office manager, the medical practice, and others for negligence asserting that their negligence and negligent misrepresentation prevented proper service of the dismissed physician, causing them $1.5 million in damages.
The trial court dismissed the negligence action. It found that the relationship of the parties was not such that a legal obligation or duty of care flowed from the office manager and medical practice to the plaintiffs.
The court discussed the reasoning to be applied in determining the existence of a duty of care. It appears that the appellate court saw this as a case of “nonfeasance” or “passive inaction or a failure to take steps to protect [others] from harm … Tennessee’s courts generally have declined to impose a duty to act or to rescue,” essentially the Restatement (Second) of Torts § 314 position. But, it also recognized an exception to the rule if there is a special relationship with either the individual who is “the source of danger or the person who is at risk.”
The court rejected plaintiff’s arguments to impose (1) a special relationship on the parties, (2) a duty by the office manager to disclaim authority to accept service of process, and/or (3) a duty on the medical practice to impose protocols to prevent process from being given to unauthorized persons.