Common Law

Changes to Common Law

Except as indicated, all indented material is copied directly from the court’s opinion.

Decisions of the Tennessee Supreme Court

Hodges v. Craig382 S.W.3d 325, 337-38 (Tenn. 2012).

Tennessee’s public policy is reflected in its constitution, statutes, judicial decisions, and common-law rules. State ex rel. Swann v. Pack, 527 S.W.2d 99, 112 n. 17 (Tenn.1975) (quoting Home Beneficial Ass’n v. White, 180 Tenn. 585, 588, 177 S.W.2d 545, 546 (1944)). The determination of this state’s public policy is primarily the prerogative of the General Assembly. Alcazar v. Hayes, 982 S.W.2d 845, 851 (Tenn.1998); Cavender v. Hewitt, 145 Tenn. 471, 475-76, 239 S.W. 767, 768 (1922). While this Court’s role in declaring public policy is limited, Taylor v. Beard, 104 S.W.3d 507, 511 (Tenn.2003), it is less so when Tennessee’s public policy is reflected in the state’s common law.

Tennessee is a common-law state. Powell v. Hartford Accident & Indem. Co., 217 Tenn. 503, 509, 398 S.W.2d 727, 730 (1966); Rush v. Great Am. Ins. Co., 213 Tenn. 506, 515, 376 S.W.2d 454, 458 (1964). The sources of the common law can be found in the “usages, habits, manners, and customs of the people.” Jacob v. State, 22 Tenn. (3 Hum.) 493, 514 (1842). While the “law must be stable … it cannot stand still.” Roscoe Pound, Interpretations of Legal History 1 (1923). Accordingly, the common law is evolutionary. Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 502, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984); Dunn v. Palermo, 522 S.W.2d 679, 688 (Tenn.1975) (quoting Tesone v. School Dist. No. Re-2, 152 Colo. 596, 384 P.2d 82, 86 (1963) (Frantz, C.J., dissenting)). It is flexible enough to adapt to the emerging conditions of society. Cardwell v. Bechtol, 724 S.W.2d 739, 744 (Tenn.1987); Box v. Lanier, 112 Tenn. 393, 407, 79 S.W. 1042, 1045 (1904).

The courts should not and must not close their doors to changing conditions. Metropolitan Gov’t of Nashville & Davidson Cnty. v. Poe, 215 Tenn. 53, 80, 383 S.W.2d 265, 277 (1964). Accordingly, it is now beyond reasoned argument that this Court has the power to develop and adapt common law principles and their application. Cardwell v. Bechtol, 724 S.W.2d at 744. Unless the General Assembly has acted to occupy an area formerly governed by the common law, nothing prevents this Court from modifying existing common-law rules, as long as these modifications reflect the changed environment. Cardwell v. Bechtol, 724 S.W.2d at 744 (quoting Powell v. Hartford Accident & Indem. Co., 217 Tenn. at 513, 398 S.W.2d at 732).

Common-law principles and rules govern unless they have been changed by statute. Metropolitan Gov’t of Nashville & Davidson Cnty. v. Allen, 220 Tenn. 222, 230, 415 S.W.2d 632, 635 (1967). It is likewise beyond reasoned argument that the General Assembly, subject only to constitutional limitations, has plenary power to alter the common law. Guy v. Mutual of Omaha Ins. Co., 79 S.W.3d 528, 536 (Tenn.2002); Lavin v. Jordon, 16 S.W.3d 362, 368 (Tenn.2000); Southern Ry. Co. v. Sanders, 193 Tenn. 409, 415, 246 S.W.2d 65, 67 (1952). Therefore, when the General Assembly has acted to occupy an area of the law formerly governed by the common law, the statute must prevail over the common law in the case of conflict. Knoxville Outfitting Co. v. Knoxville Fireproof Storage Co., 160 Tenn. 203, 206, 22 S.W.2d 354, 355 (1929). In areas of the law where the General Assembly has enacted statutes that clearly and definitively set boundaries on rights, obligations, or procedures, we have recognized that “it should be left to the legislature to change those boundaries, if any are to be changed, and to define new ones.” Taylor v. Beard, 104 S.W.3d 507, 511 (Tenn.2003) (quoting Norwest v. Presbyterian Intercommunity Hosp., 52 Or. App. 853, 631 P.2d 1377, 1380 (1981)).

In addition to being constitutionally based,[11] our deference to the General Assembly’s prerogative to establish Tennessee’s public policy rests on fundamental differences between the judicial and legislative process. The courts develop common-law principles on a case-by-case basis over time by deciding specific cases or controversies brought to them by particular parties. Watson v. Cleveland Chair Co., 789 S.W.2d 538, 541 (Tenn. 1989). The courts’ decisions are based on the unique facts of each case and the application of the appropriate legal principles to those facts. Unlike legislative proceedings, judicial proceedings do not provide an open forum for the discussion and resolution of broad public policy issues. See Smith v. Gore, 728 S.W.2d 738, 747 (Tenn. 1987).

[11] Tenn. Const. Art. II, § 3 vests the legislative authority in the General Assembly. In addition, Tenn. Const. Art. II, § 2 provides that “[n]o person or persons belonging to one of these departments [the Legislative, Executive, and Judicial departments created in Tenn. Const. Art. II, § 1] shall exercise any of the powers properly belonging to either of the others, except in the cases herein directed or permitted.”

Decisions of the Tennessee Court of Appeals


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