Thompson on Negligence, 909. Potter v. Tucker, 688 S.W.2d 833, 836 (Tenn. Ct. App. 1985) (citing Powell v. Virginia Construction Co., 13 S.W. 691 (Tenn. 1890)). As a general rule, an employer is not ordinarily liable for the negligence of an independent contractor.
We recognize the general rule that an employer is not ordinarily liable for the negligence of an independent contractor. Potter v. Tucker, 688 S.W.2d 833 (Tenn.App. 1985) (citing (International Harvester Co. v. Sartain, 32 Tenn. App. 425, 222 S.W.2d 854 (1949). In Potter, plaintiff sued the defendant for compensatory and punitive damages for unauthorized cutting of timber on her land. Plaintiff's adjoining landowner, Tucker, had contracted with Brown to cut timber on Tucker's property, but Brown, in performing the job, cut plaintiff's timber.
Potter v. Tucker, 688 S.W.2d 833, 835 (Tenn. Ct. App. 1985); see also McLemore ex rel. McLemore v. Elizabethton Med. Invrs., Ltd. P'ship, 389 S.W.3d 764, 778 (Tenn. Ct. App. 2012) ("For this Court to review the sufficiency of the evidence on appeal, a motion for a directed verdict must have been made at the conclusion of all of the proof and renewed in a post judgment motion following the jury's verdict.") (citing Steele, 2002 WL 1000181, at *3)); Robert Banks, Jr. & June F. Entman, Tennessee Civil Procedure § 12-1[c] ("[A] party must first move for directed verdict before the case is submitted to the jury in order to be able to obtain a post-verdict entry of a favorable judgment on the basis of the legal insufficiency of the prevailing opponent's evidence.").
We do not agree that the failure of Ms. Swenson to make a motion for directed verdict on this issue is fatal to her right to appeal. While she had the ability to include the asserted failure of proof of damages for future pain and suffering in the motion she made at the close of Ms. Adkins' proof, nothing in Rule 50, Tenn. R. Civ. P., requires such a motion to be made as a prerequisite to either a trial court's or this court's review of the sufficiency of the evidence to support a jury's determination, which we consider Ms. Swenson's issue on appeal to be. In the cases relied upon by Ms. Adkins in support of this proposition, Johnson v. Woman's Hospital, 527 S.W.2d 133 (Tenn. Ct. App. 1975) and Potter v. Tucker, 688 S.W.2d 833 (Tenn. Ct. App., 1985), the action of the trial court in denying motions for directed verdict made at the close of plaintiff's proof were the grounds for appeal. In Potter this court determined that any error had been waived by the failure of the defendant to renew the motion at the close of all proof.Johnson v. Woman's Hospital held that a motion for directed verdict was waived "when the defendant elected to adduce its proof after the motion was overruled."
The mild rule charges the defendant with the value of a natural resource (such as timber, rock, or soil) before severance from the earth, and the mild rule is appropriate "where the wrong was innocently done, by mistake or inadvertence." Potter v. Tucker, 688 S.W.2d 833, 836 (Tenn.Ct.App. 1985). The harsh rule charges the defendant with the value of the natural resource after severance.
However, the Rule 50.02 motion "must be made at the conclusion of all the proof in order for it to be considered by the trial court on a post trial motion and by this court on appeal." Potter v. Tucker, 688 S.W.2d 833, 835 (Tenn. Ct. App. 1985) (citing Tenn. R. Civ. P. 50.02; Tenn. R. App. P. 3; Johnson v. Woman's Hosp., 527 S.W.2d 133 (Tenn. Ct. App. 1975)). The record contains nothing to indicate that Appellant moved for a directed verdict before the case was submitted to the jury.
(citing Steele, 2002 WL 1000181, at *3)); see also Cortez v. Alutech, Inc., 941 S.W.2d 891, 894 (Tenn. Ct. App. 1996) ("The motion [for directed verdict] must be made at the conclusion of all the proof in order for it to be considered by the trial court on a post-trial motion and by this court on appeal." (quoting Potter v. Tucker, 688 S.W.2d 833, 835 (Tenn.App. 1985))).
ling to do so constituted a waiver of the issue."); Steele v. Columbia/HCA Health Care Corp., No. W2001-01692-COA-R3-CV, 2002 WL 1000181, at *3 (Tenn. Ct. App. May 13, 2002) ("[I]n order for this Court to review the sufficiency of the evidence on appeal, the motion for a directed verdict must have been made at the conclusion of all of the proof and renewed in a post judgment motion following the jury's verdict."); Cortez v. Alutech, Inc., 941 S.W.2d 891, 894 (Tenn. Ct. App. 1996) ("Once Appellants moved for a directed verdict at the close of Appellees' proof, it was incumbent upon them to renew their motion at the close of all the proof as an initial step to preserving the issue for review on appeal."); Boyd v. Sears, Roebuck & Co., 1986 WL 3162, at *1 (Tenn. Ct. App. Mar. 12, 1986) ("When a defendant moves for a directed verdict at the conclusion of plaintiff's proof but fails to renew the motion at the conclusion of all the proof, it waives its right to raise the issue on appeal."); Potter v. Tucker, 688 S.W.2d 833, 835 (Tenn. Ct. App. 1985) ("The motion must be made at the conclusion of all the proof in order for it to be considered by the trial court on a post trial motion and by this court on appeal."). Because the defendants moved for directed verdict only at the close of Plaintiff's proof and did not renew their motion at the close of all the proof, the defendants waived review on appeal of the denial of their motion for directed verdict.
Crosslin v. Alsup, 594 S.W.2d 379 (Tenn. 1980).Eaton v. McLain, 891 S.W.2d 587, 590 (Tenn. 1994) (noting that the standard for reviewing a motion for a directed verdict is the same); cf. Baggett v. Louisville & N. R. Co., 51 Tenn. App. 175, 185, 365 S.W.2d 902, 906 (Tenn. Ct. App. 1962) (holding that in reviewing a motion for a directed verdict, the court may consider all the proof presented to the jury, including the proof presented by the defense); see also Potter v. Tucker, 688 S.W.2d 833, 835 (Tenn. Ct. App. 1985) (holding that in an appeal from the denial of a motion for directed verdict, the court should consider "all of the evidence" or "the whole evidence"). Likewise, we review the sufficiency of the evidence to sustain the jury's verdict as follows:
With respect to the substantive law at issue in this case, Tennessee follows the "near universal rule" that "an employer or general contractor is not ordinarily liable for the negligence of an independent contractor." Wilson v. Thompson Const. Co., 86 S.W.3d 536, 541 (Tenn. Ct. App. 2001) (citing Potter v. Tucker, 688 S.W.2d 833 (Tenn. Ct. App. 1985); International Harvester Co. v. Sartain, 222 S.W.2d 854, 865 (Tenn. Ct. App. 1948)). Summary judgment was granted to Highways because the trial court held that Mr. Cole was an independent contractor, and thus Highways could not be vicariously liable for any negligence on his part.