author: WILLIAM M. BARKER, J„

text:
    Gary L. WEST, et al. v. EAST TENNESSEE PIONEER OIL CO. d/b/a Exxon Convenience Store.
    Supreme Court of Tennessee, at Knoxville.
    May 25, 2005 Session Heard at Cookeville.

    Aug. 18, 2005.

      Gregory F. Coleman and Michael A. Myers, Knoxville, Tennessee, for the appellants, Gary L. West and Miehell B. Richardson.
    Clint J. Woodfin and Gary T. Dupler, Knoxville, Tennessee, for the appellee, East Tennessee Pioneer Oil Co. d/b/a/ Exxon Convenience Store.

      . Oral argument was heard in this case on May 25, 2005, in Cookeville, Tennessee, as part of this Court’s S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) program.

   OPINION

WILLIAM M. BARKER, J„

delivered the opinion of the court,

in which FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., and JANICE M. HOLDER, JJ., joined.

We granted review in this case to determine whether convenience store employees owe a duty of reasonable care to persons on the roadways when the employees sell gasoline to an obviously intoxicated driver and/or assist the driver in pumping the gasoline into his vehicle. We answer in the affirmative. The plaintiffs in this case were injured when their vehicle was struck by another vehicle driven by an intoxicated driver. The intoxicated driver had purchased gasoline at the defendant convenience store shortly before the accident. The plaintiffs filed suit alleging the defendant was liable for their injuries based on theories of negligence, negligence per se, and negligent entrustment in furnishing the driver with gasoline. The trial court granted summary judgment in favor of the defendants on all claims. The Court of Appeals affirmed the dismissal of the negligence per se and negligent entrustment claims, but reversed the grant of summary judgment on the negligence claim. The intermediate court held that the defendant’s employees were under a duty to act with due care when undertaking the affirmative acts of selling the gasoline to the visibly intoxicated driver and then helping the driver pump the gasoline into his vehicle. After a careful review of the record and relevant authority, we affirm the judgment of the Court of Appeals in part, reverse in part, and remand for further proceedings.

Factual Background

The defendant East Tennessee Pioneer Oil Company operates an Exxon convenience store on U.S. Highway 11W, also known as Rutledge Pike, in Knox County, Tennessee. The store consists of three connected portions — a convenience market and gas station, an ice cream counter, and a “Huddle House” restaurant — each owned and operated by the defendant.

On July 22, 2000, Brian Tarver (“Tar-ver”) entered the convenience store. Tar-ver had been drinking alcohol, and the plaintiffs allege that upon entering the store he was obviously intoxicated. There was a large number of customers in the store at the time, with a long line of people waiting at the check-out counter. Tarver pushed his way to the front of the line and asked the clerk if she would “go get [him] some beer.” The clerk, Dorothy Thomas (“Thomas”), stated in her deposition that Tarver smelled of beer and staggered as he walked. Thomas refused to sell him beer because, in her opinion, Tarver was intoxicated. After being denied beer, Tar-ver began cursing loudly, talking to Thomas in a threatening manner, and generally causing a disturbance inside the store. Tarver then managed to pull three crumpled one dollar bills out of his pocket and laid them on the counter. He told Thomas, “we need gas” and then turned to leave. A customer opened the door for Tarver, who staggered out of the store and back toward the gas pump where his ear was parked.

A few moments later an alarm began “beeping” inside the store, alerting Thomas that someone was attempting to activate the gasoline pumps outside. After the “beeping” continued, Thomas concluded that a customer was having difficulty with the pump. Although the evidence conflicts on this point, Thomas testified that she could not see the pump, so she asked the other employees in the store if someone would “go see who doesn’t know what they’re doing at the gas pump.” Two off-duty employees were at the store: Candice Drinnon (“Drinnon”), who worked at both the Huddle House restaurant and the ice cream counter, and Roy Armani (“Armani”), who worked in the Huddle House portion of the defendant’s store.

The accounts also differ as to how the events next unfolded. Thomas testified that both Drinnon and Armani were inside the store during this episode, and they went to assist the customer at the pumps at Thomas’s request. Drinnon, on the other hand, testified that she and Armani were standing outside on the parking lot when they first saw Tarver and noticed he was having difficulty operating the pump. According to Drinnon, she and Armani walked over to assist Tarver without being asked to do so by Thomas or anyone else.

In any event, Drinnon and Armani came to the aid of the intoxicated Tarver, who could not push the correct button to activate the pump. Drinnon testified that upon approaching Tarver she could tell he had been drinking because she “could smell it on him.” Drinnon also states, however, that she and Armani were not fully aware of the degree of Tarver’s intoxication until after activating the pump. According to Drinnon, Tarver spoke normally, but, “when we seen him walk away, [we] could tell he was drunk.” Drinnon pushed the correct button on the pump and then Thomas, the clerk behind the counter, activated the pump from inside the store which allowed the pump to operate. Tarver then apparently proceeded to operate the nozzle himself, obtaining the gasoline without any further assistance.

Tarver pumped three dollars worth of gasoline, got back into his vehicle, and prepared to leave. Drinnon and Armani watched as Tarver, without turning on his vehicle’s headlights, drove off the parking lot and into the wrong lane of traffic on Rutledge Pike, traveling southbound in the northbound lane. Drinnon then went back into the store and informed Thomas, the clerk, that Tarver had gotten three dollars worth of gasoline and then driven away on the wrong side of the road. Thomas stated that this was her first indication that Tarver was driving; prior to this point she believed Tarver had been accompanied by another person and was not driving a vehicle himself.

At about the same time as Tarver was traveling south with no headlights on and in the wrong lane of traffic, the plaintiffs’ vehicle was traveling north on Rutledge Pike, several miles in front of Tarver. One of the plaintiffs, Gary West, was driving while the other plaintiff, Michell Richardson, was a passenger. Tarver managed to travel 2.8 miles from the convenience store before striking the plaintiffs’ vehicle head-on. Both of the plaintiffs sustained serious injuries in the accident.

During their ensuing investigation, the plaintiffs requested Dr. Jeffrey H. Hodg-son, a mechanical engineering professor at the University of Tennessee, to examine the fuel tank of Tarver’s vehicle. Based upon the results of his examination, Dr. Hodgson determined that at the time Tar-ver stopped at the defendant’s store his vehicle contained only enough fuel to travel another 1.82 miles. Therefore, without the three dollars worth of gas he obtained at the store, Tarver would have “run out” of gasoline approximately one mile before reaching the accident scene.

On June 1, 2001, the plaintiffs filed suit alleging that the defendant’s employees were negligent in selling gasoline to the visibly intoxicated Tarver and assisting him in pumping it into his vehicle. The plaintiffs contended it was reasonably foreseeable that these actions would result in an automobile accident. The complaint also alleged the employees were negligent per se, based upon statutory violations related to aiding an intoxicated driver. In addition, the complaint charged that furnishing gasoline to an intoxicated driver constituted negligent entrustment.

The defendant filed a motion for summary judgment asserting that each of the plaintiffs’ claims failed as a matter of law. Specifically, the defendant contended that it owed no duty of care to the plaintiffs while furnishing gasoline to Tarver and that its employees’ actions were not a proximate cause of the accident. The defendant also argued that the tort of negligent entrustment was limited to situations involving a bailment and could not be applied to an outright sale of merchandise from a merchant to a customer. As to the negligence per se claims, the defendant contended that the criminal statutes cited by the plaintiffs were inapplicable to the present case.

Following a hearing on the motion, the trial court entered an order granting summary judgment in favor of the defendant on all three claims. The trial stated orally that “Plaintiffs’ claim for relief is not recognizable under the law as it stands right now.” Upon appeal, the Court of Appeals affirmed the grant of summary judgment as to the negligence per se and negligent entrustment theories of liability, but reversed the trial court on the negligence claim. The intermediate court held, inter alia, that “the affirmative acts of Defendant’s employees in both selling gasoline to and in helping a visibly intoxicated Tarver pump the gasoline into his vehicle created a duty to act with due care.”

We granted review.

Standard of Review

Summary judgment is appropriate when the moving party establishes that there is no genuine issue as to any material fact and that a judgment may be rendered as a matter of law. Tenn. R. Civ. P. 56.04; Penley v. Honda Motor Co., 31 S.W.3d 181, 183 (Tenn.2000); Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.1993). In reviewing a motion for summary judgment, we construe the evidence and all reasonable inferences to be drawn from the evidence in the light most favorable to the non-moving party. Mooney v. Sneed, 30 S.W.3d 304, 305-06 (Tenn.2000). A party is entitled to summary judgment only when “the facts and conclusions to be drawn therefrom permit a reasonable person to reach only one conclusion....” Seavers v. Methodist Med. Ctr. of Oak Ridge, 9 S.W.3d 86, 91 (Tenn.1999). We review this question of law de novo, with no presumption of correctness accompanying the trial court’s ruling. Mooney, 30 S.W.3d at 306.

Analysis

I. Negligence Principles

A negligence claim requires proof of the following elements: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct by the defendant falling below the standard of care amounting to a breach of that duty; (3) an injury or loss; (4) cause in fact; and (5) proximate or legal cause.

Coln v. City of Savannah, 966 S.W.2d 34, 39 (Tenn.1998) overruled on other grounds by Cross v. City of Memphis, 20 S.W.3d 642 (Tenn.2000); see also McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.1995); McClenahan v. Cooley, 806 S.W.2d 767, 774 (Tenn.1991). While we will discuss each of these elements in turn, our primary focus is on the first element: duty of care.

II. Duty

Although not a part of the early English common law, the concept of duty has become an essential element in all negligence claims. McCall, 913 S.W.2d at 153; Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn.1993); see also W. Page Keeton, Prosser & Keeton on the Law of Torts § 53 (5th ed.1984). The duty owed to the plaintiffs by the defendant is in all cases that of reasonable care under all of the circumstances. Doe v. Linder Const. Co., 845 S.W.2d 173, 177 (Tenn.1992). Whether the defendant owed the plaintiffs a duty of care is a question of law to be determined by the court. Burroughs v. Magee, 118 S.W.3d 323, 327 (Tenn.2003); Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89; Coln, 966 S.W.2d at 39.

If a defendant fails to exercise reasonable care under the circumstances, then he or she has breached his or her duty to the plaintiffs. The term reasonable care must be given meaning in relation to the circumstances. Linder Const. Co., 845 S.W.2d at 178; McCormick v. Waters, 594 S.W.2d 385, 387 (Tenn.1980). Reasonable care is to be determined by the risk entailed through probable dangers attending the particular situation and is to be commensurate with the risk of injury. Linder Const Co., 845 S.W.2d at 178. Thus, legal duty has been defined as the legal obligation owed by a defendant to a plaintiff to conform to a reasonable person standard of care for the protection against unreasonable risks of harm. Burroughs, 118 S.W.3d at 329; Staples, 15 S.W.3d at 89; McCall, 913 S.W.2d at 153; see also Keeton, supra, § 53.

The risk involved must be one which is foreseeable; “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 probable.” Linder Const. Co., 845 S.W.2d at 178. “The plaintiff must show that the injury was a reasonably foreseeable probability, not just a remote possibility, and that some action within the [defendant’s] power more probably than not would have prevented the injury.” Tedder v. Raskin, 728 S.W.2d 343, 348 (Tenn.Ct.App.1987)

We employ a balancing approach to assess whether the risk to the plaintiff is unreasonable and thus gives rise to a duty to act with due care. Burroughs, 118 S.W.3d at 329; Staples, 15 S.W.3d at 89. This Court has held that a risk is unreasonable, “ ‘if the foreseeable probability and gravity of harm posed by defendant’s conduct outweigh the burden upon defendant to engage in alternative conduct that would have prevented the harm.’ ” Burroughs, 118 S.W.3d at 329 (quoting McCall, 913 S.W.2d at 153).

The defendant argues that it owed no duty of care to the plaintiffs because the intoxicated driver was merely a customer at the defendant’s convenience store; thus there was no “special relationship” giving rise to a duty on the part of the defendant to control the actions of the customer. See, e.g., Nichols v. Atnip, 844 S.W.2d 655, 661 (Tenn.Ct.App.1992) (discussing how a defendant who assumes a special relationship with a third party may also incur a duty to control the conduct of that third party). In our view, the defendant misconstrues the plaintiffs’ claims as being based upon a “special relationship” arising from the sale of gasoline to Mr. Tarver (the intoxicated driver). The plaintiffs’ allegations do not revolve around any duty of the defendant to control the conduct of a customer. Instead, the claims are predicated on the defendant’s employees’ affirmative acts in contributing to the creation of a foreseeable and unreasonable risk of harm, i.e., providing mobility to a drunk driver which he otherwise would not have had, thus creating a risk to persons on the roadways. Viewed in this light, the balancing test set out above is appropriate to determine whether the defendant owed the plaintiffs a duty.

Simply stated, the defendant convenience store owed a duty to act with reasonable care under all the circumstances. Under the facts of this case, we conclude that the acts of the defendant in selling gasoline to an obviously intoxicated driver and/or assisting an obviously intoxicated driver in pumping gasoline into his vehicle created a foreseeable risk to persons on the roadways, including the plaintiffs. It is common knowledge that drunk driving directly results in accidents, injuries, and deaths. As to the possible magnitude of the potential harm posed to the plaintiff, we again need look no further than to the frequency and severity of injuries caused by drunken driving. As we noted in Burroughs:

Deaths and serious injuries tragically occur every day as the result of impaired drivers who are operating motor vehicles on our roads and highways. In addition to the devastation such accidents can wreak on individuals and families, our society also incurs substantial costs (both human and economic) as a result of impaired drivers.

118 S.W.3d at 332.

We next examine the feasibility of alternative, safer conduct and the burdens associated with such alternative conduct. A safer alternative was readily available and easily feasible — simply refusing to sell gasoline to an obviously intoxicated driver. The clerk at the defendant’s store had already refused to sell beer to Mr. Tarver. In fact, both state law and store policy required her to refuse to sell alcohol to intoxicated persons. It was also the clerk’s understanding that she was never required to allow a customer to purchase any item, including gasoline. The relative usefulness and safety of this alternative conduct is obvious. All reasonable persons recognize that refraining from selling gasoline to or assisting intoxicated persons in pumping it into their vehicles will lead to safer roadways.

Based upon the foregoing analysis, we conclude that a convenience store employee owes a duty of reasonable care to persons on the roadways, including the plaintiffs, not to sell gasoline to a person whom the employee knows (or reasonably ought to know) to be intoxicated and to be the driver of the motor vehicle. Similarly, a convenience store employee also owes a duty of reasonable care not to assist in providing gasoline (in this case pumping the gasoline) to a person whom the employee knows (or reasonably ought to know) to be intoxicated and to be the driver of the motor vehicle. We stress that because “[fjoreseeability is the test of negligence,” Linder Const. Co., 845 S.W.2d at 178, the convenience store employee must know that the individual is intoxicated and that the individual is the driver of the vehicle before a duty arises. It is a question of fact for a jury as to what the employee knew with respect to the individual’s intoxication and status as driver. We also hasten to point out, as did the Court of Appeals, that by our decision today we do not hold that convenience store employees have a duty to physically restrain or otherwise prevent intoxicated persons from driving.

III. Breach of Duty, Injury or Loss, Cause in Fact, and Proximate Cause

Our conclusion that the defendant owed a duty to the plaintiffs does not completely resolve this case. The plaintiffs at trial still bear the burden of proving the remaining elements of negligence: breach of duty, injury or loss, cause in fact, and proximate cause. Although we have viewed the facts in the light most favorable to the plaintiffs for purposes of resolving this appeal, the record reflects genuine issues of material fact concerning each of these elements which the jury must resolve.

For instance, the jury must determine whether, in consideration of all the facts and circumstances presented, the employees failed to exercise due care resulting in a breach of their duty of care. See McCall, 913 S.W.2d at 153. Another question of fact for the jury is whether the employees’ actions can be attributed to the defendant, thus making the defendant vicariously liable for the employees’ alleged negligence. See White v. Reveo Disc. Drug Ctrs., Inc., 33 S.W.3d 713, 723-25 (Tenn.2000) (discussing vicarious liability of employers and agency law). Furthermore, the plaintiffs must show that the defendant’s employees’ acts were the cause in fact of their injuries. While the affidavit from Dr. Hodgson provides probative evidence on this point, the credibility of the witness, the weight given to his testimony and whether this evidence establishes cause in fact are all issues for the jury.

The final element the plaintiffs must prove is proximate cause. While cause in fact establishes that the plaintiffs’ injury would not have occurred “but for” the defendant’s conduct, proximate cause focuses on whether the law will extend responsibility for that conduct. Kilpatrick v. Bryant, 868 S.W.2d 594, 598 (Tenn.1993). This Court has previously set out a three-prong test for proximate cause:

(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.

Haynes v. Hamilton County, 883 S.W.2d 606, 612 (Tenn.1994) (quoting McClenahan, 806 S.W.2d at 775).

The defendant argues that its employees’ actions were not the proximate cause of the plaintiffs’ injuries; rather, the injuries were caused solely by the actions of Mr. Tarver. The defendant asserts that its connection to the accident is so tenuous that proximate cause simply does not apply. We note however, “[t]here is no requirement that a cause, to be regarded as the proximate cause of an injury, be the sole cause, the last act, or the one nearest to the injury, provided it is a substantial factor in producing the end result.” McClenahan, 806 S.W.2d at 775. Viewing the evidence in the light most favorable to the plaintiffs, we conclude that a reasonable jury could find the acts of the convenience store employees were a substantial factor in bringing about the plaintiffs’ accident and that this result was foreseeable. We further conclude there is no rule of law or policy that should relieve the defendant from liability. Accordingly, whether the defendant’s employees’ acts proximately caused the plaintiffs’ injuries is a question for the jury.

TV. Negligent Entrustment Claims

In addition to their general negligence claim, the plaintiffs have also alleged that furnishing gasoline to an obviously intoxicated driver constituted negligent en-trustment. The plaintiffs claim that when the defendant’s employees sold gasoline to Tarver it was clearly foreseeable that the fuel would be used in a manner placing others, including the plaintiffs, in danger. The defendant argued in the trial court that a negligent entrustment claim was inapplicable to the facts because the term “entrustment” does not encompass a sale of merchandise from a merchant to a customer. The trial court granted summary judgment in favor of the defendant. The Court of Appeals affirmed, holding that in order to establish a claim of negligent entrustment the entrustor must retain a right of ownership or control over the chattel.

Tennessee courts have long recognized the tort of negligent entrustment. See, e.g., V.L. Nicholson Constr. Co. v. Lane, 177 Tenn. 440, 150 S.W.2d 1069, 1070 (1941) (negligent entrustment of a vehicle). To prevail on such a claim “requires proof that a chattel was entrusted to one incompetent to use it with knowledge of the incompetence, and that its use was the proximate cause of injury or damage to another.” Woodson v. Porter Brown Limestone Co., 916 S.W.2d 896, 907 (Tenn.1996) (citing Restatement (Second) of Torts § 390 (1964)); see also Ali v. Fisher, 145 S.W.3d 557, 562 (Tenn.2004). The Restatement explains negligent en-trustment as follows:

One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

Restatement (Second) of Torts § 390 (1965).

The Court of Appeals relied upon Brown v. Harkleroad, 39 Tenn.App. 657, 287 S.W.2d 92 (1955) in concluding that a supplier of a chattel who relinquishes all ownership rights, such as the present defendant, cannot be liable for negligent en-trustment. Harkleroad involved a father who purchased a vehicle for his son. Id. at 94. Several months after receiving the vehicle, the son was involved in an accident and subsequently found guilty of reckless and drunken driving. Id. A party injured in the accident alleged the father had negligently entrusted the vehicle because, at the time of the purchase, the father knew his son was a habitually drunk and reckless driver. Id. at 93. The jury found in favor of the plaintiff. Id. However, upon review, the Court of Appeals concluded that the father could not be held hable because he had relinquished all rights of ownership or control by furnishing the vehicle as a gift, rather than as a loan. Id. at 96. The court was concerned that to hold otherwise could unreasonably extend potential liability.

If a father incurs liability by giving an automobile to his son, knowing him to be [a] drunken or incompetent driver, when would it end? Would it last for the life of the automobile? Would it apply to a new automobile in the event of a trade-in? Or would liability attach to a dealer who sold an automobile to a known incompetent or drunken driver? Or to a filling station operator who sold such a person gas, knowing of his propensity?

Id.

The Harkleroad decision has been severely criticized. One leading legal commentator stated that Harkleroad and similar decisions “look definitely wrong,” and further explained that “[i]t is the negligent entrusting which creates the unreasonable risk; and this is none the less when the goods are conveyed.” Keeton, supra, § 104. In Nichols v. Atnip, 844 S.W.2d 655 (Tenn.Ct.App.1992), the Court of Appeals offered that Harkleroad was “contrary to Restatement (Second) of Torts § 390 (1964) and has been criticized by many courts and legal scholars.” Id. at 660 (citations omitted). Extensive criticism of Harkleroad was also noted in Brown v. Wal-Mart Stores, Inc., 976 F.Supp. 729, 734 (W.D.Tenn.1997), in which the court addressed whether a seller of ammunition could be liable for negligent entrustment. Citing the Restatement (Second) of Torts section 390, the court concluded that “among those who may be liable as ‘suppliers’ [in negligent entrustment actions] are sellers of chattels.” Id. Consequently, the court in Brown held that the plaintiff had stated a legitimate cause of action under Tennessee common law. Id. at 735.

The Restatement (Second) of Torts specifically provides that sellers may be liable for negligent entrustment. Restatement (Second) of Torts § 390 cmt. a. (1965) (stating that the rule under this section “applies to anyone who supplies a chattel,” including, “sellers, lessors, donors or lenders”). In line with a majority of other states, this Court has previously cited section 390 with approval in defining negligent entrustment. See Ali, 145 S.W.3d at 562; Woodson, 916 S.W.2d at 907. We are also aware of a number of courts having expressly held that sellers of merchandise may be found liable for a negligent entrustment. Morin v. Moore, 309 F.3d 316, 324-25 (5th Cir.2002); Ireland v. Jefferson County Sheriff’s Dep't, 193 F.Supp.2d 1201, 1229 (D.Colo.2002); Brown, 976 F.Supp. at 734-35; Flieger v. Barcia, 674 P.2d 299, 301 (Alaska 1983); Jacoves v. United Merch. Corp., 9 Cal.App.4th 88, 11 Cal.Rptr.2d 468, 485 (1992); Kitchen v. K-Mart Corp., 697 So.2d 1200, 1208 (Fla.1997); Vince v. Wilson, 151 Vt. 425, 561 A.2d 103, 104 (1989); Bernethy v. Walt Failor’s, Inc., 97 Wash.2d 929, 653 P.2d 280, 283 (1982). The Tennessee Court of Appeals has recently noted that while negligent entrustment claims typically involve a bailment, “it is now widely agreed that the merchants may be considered to be suppliers of chattels.” Rains v. Bend of the River, 124 S.W.3d 580, 597 (Tenn.Ct.App.2003) (concluding that Tennessee law would support a negligent en-trustment claim against a seller of ammunition).

We agree with those decisions cited above. Cases to the contrary, such as Harkleroad, appear to misconstrue the basic premise underlying negligent entrustment by confusing it with the theory of vicarious liability. See, e.g., Broadwater v. Dorsey, 344 Md. 548, 688 A.2d 436, 441 (1997) (holding that “without the right to permit or prohibit the use of the chattel at the time of the accident, an individual cannot be hable for negligent entrustment”). This Court has recognized that negligent entrustment and vicarious liability are separate and distinct concepts. Ali, 145 S.W.3d at 564. Liability for negligent en-trustment is founded upon the supplier’s direct negligence in entrusting the chattel to an incompetent user. Vicarious liability, on the other hand, relies upon the supplier’s right to control the chattel at the time the entrustee misuses it. See id. at 562-63; Mathis v. Stacy, 606 S.W.2d 290, 292 (Tenn.Ct.App.1980); see also Keeton, supra, § 104. A negligent entrustment is committed at the moment when control of a chattel is relinquished by an entrustor to an incompetent user. Ali, 145 S.W.3d at 564 (citing Harper v. Churn, 83 S.W.3d 142, 146 (Tenn.Ct.App.2001)). Control therefore need only exist at the time of the entrustment for a prima facie case of negligent entrustment.

Based upon the foregoing, and construing the record in the light most favorable to the plaintiffs, we conclude that the plaintiffs have established a prima facie claim of negligent entrustment. However the plaintiffs’ still bear the same burden at trial whether pursuing their theory of negligence or negligent entrustment. Both claims arise from the same facts, entail the same duty, and present the same factual issues to be resolved at trial regarding breach of duty, loss or injury, cause in fact, and proximate cause. We hold that a claim of negligent entrustment is applicable to this case and, therefore, the trial court erred in granting summary judgment in favor of the defendant. The judgment of the Court of Appeals on this issue is reversed.

Conclusion

In summary, we hold that the convenience store employees owed a duty of reasonable care to persons on the roadways, including the plaintiffs, when selling gasoline to an obviously intoxicated driver and/or assisting an obviously intoxicated driver in pumping the gasoline into his vehicle. Viewed in the light most favorable to the plaintiffs, we conclude that the evidence in the record establishes prima facie cases of negligence and negligent en-trustment. We offer no opinion concerning the ultimate resolution of this case, as the plaintiffs still bear the burden at trial of proving the other elements of negligence. Based upon the foregoing analysis, we conclude that the trial court erred in granting summary judgment in favor of the defendants on the plaintiffs’ claims of negligence and negligent entrustment. Consequently, the judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.

Costs of this appeal are taxed to the appellant, East Tennessee Pioneer Oil Company d/b/a Exxon Convenience Store, or its sureties, for which execution may issue if necessary.

      . Deposition testimony by another employee, Candice Drinnon, indicated that the pump, and anyone operating the pump, were readily visible from inside the store.

      . The record reflects a dispute as to the correct identity of this person. The parties have submitted no deposition or affidavit from this employee, and his surname has been given as both "Armani” and "Anrani” by the other employees.

      . It is unclear from the record whether these events led to criminal charges against Tarver.

      . The severity of the risk posed by drunken driving in this state is clearly indicated in Tennessee Department of Safety statistics which reveal that alcohol related automobile accidents led to 2,498 deaths in Tennessee between 1998 and 2003. Dep’t of Safety Internet — DUI Statistics: Known Alcohol Related Crashes, available at http://www.tennes-see.gov/safety/duistats.htm (last visited July 6, 2005).

      . See Tenn.Code Ann. § 57-3-406(c) (1999) (providing that "[n]o retailer shall sell any alcoholic beverages to any person who is drunk”).

      . At least thirty-one other states have utilized section 390 of the Restatement (Second) of Torts in defining a negligent entrustment cause of action. See, e.g., Keller v. Kiedinger, 389 So.2d 129, 132 (Ala.1980); Peterson v. Halsted, 829 P.2d 373, 377 (Colo.1992); Kitchen v. K-Mart Corp., 697 So.2d 1200, 1207 (Fla.1997); King v. Petefish, 185 Ill.App.3d 630, 133 Ill.Dec. 636, 541 N.E.2d 847, 852 (1989); Broadwater v. Dorsey, 344 Md. 548, 688 A.2d 436, 439 (1997); Axelson v. Williamson, 324 N.W.2d 241, 243-44 (Minn. 1982); Evans v. Allen Auto Rental & Truck Leasing Co., 555 S.W.2d 325, 326 (Mo.1977); Collette v. Clausen, 667 N.W.2d 617, 621 (N.D.2003); Vince v. Wilson, 151 Vt. 425, 561 A.2d 103, 105 (1989); Stehlik v. Rhoads, 253 Wis.2d 477, 645 N.W.2d 889, 895 (2002); Moore v. Kiljander, 604 P.2d 204, 206 (Wyo.1979).

      . The Court of Appeals also affirmed the trial court’s grant of summary judgment regarding the plaintiffs' claim of negligence per se. The plaintiffs have not argued this issue before this Court. Accordingly, the judgment of the intermediate court is affirmed as to this claim.


source: Caselaw Access Project

author: WILLIAM B. CAIN, J.,

license: Public Domain

text:
    Judy KESTERSON v. Bruce VARNER.
    Court of Appeals of Tennessee, at Nashville.
    May 6, 2004 Session.
    Jan. 27, 2005.
    Permission to Appeal Denied by Supreme Court June 27, 2005.

      Penny Harrington, Nashville, Tennessee, for the appellant, Bruce Varner.
    P. Edward Schell, Franklin, Tennessee, for the appellee, Judy Kesterson.
   OPINION

WILLIAM B. CAIN, J.,

delivered the opinion of the court,

in which PATRICIA J. COTTRELL, and FRANK G. CLEMENT, JR., JJ., joined.

Bruce Varner seeks review of the trial court’s dismissal of his Petition to Modify Custody. The trial court dismissed the petition at the close of the petitioner’s proof, holding that petitioner had failed to carry his burden of proof that a change of custody was in the best interest of the child. The trial court assessed attorney’s fees and costs to the petitioner. We affirm the decision of the trial court.

Father, Bruce Varner, and Mother, Judy Varner (now Kesterson), were divorced in Pulaski County, Arkansas in September of 1990. The divorce decree awarded Mother custody of the only child born to the marriage, J.V., a male child born on April 5, 1988. The Arkansas divorce decree was domesticated in Williamson County, Tennessee by consent order of September 16, 1999. The order provided for a modification of custody, but the modification of custody did not affect Mother’s status as primary custodian.

On January 11, 2002, Father filed his “Petition for Change of Custody” in the Chancery Court for Williamson County asserting that a change of circumstances had occurred since the entry of the divorce decree and that a change of custody was in the child’s best interest. The petition alleged that since the divorce decree J.V. had exhibited serious mental and emotional problems evidenced by his diagnosis in 1993, when he was five years old, of Attention Deficit Hyperactivity Disorder; that at the time of the filing of the petition J.V. was suffering from Bipolar Disorder and Oppositional Defiant Disorder; and that J.V. had been hospitalized several times for treatment of mental problems, had been unable to adjust to school discipline, and had severe human relations problems both with his peers and with authority figures.

On February 15, 2002, Mother answered the Petition for Change of Custody admitting the serious mental problems afflicting J.V., but denying that any change of circumstances had occurred and further denying that a change of custody would be in the best interest of J.V.

On June 11, 2002, Father filed a motion for appointment of guardian ad litem asserting in part:

13. A Guardian ad litem would be able to review records, talk to psychiatrists and psychologists and school personnel for the sole purpose of discovering what is the best interest of the subject child and without any concern on the part of medical or educational personnel that their remarks or recommendations might be used to advance the interests of a parent rather than the child and, thus, would be able to make a report to the Court that was based upon full disclosure of the records, diagnosis, treatments, and recommendations of professionals.
14. Statements in Mother’s deposition reveal that she has continuing bitterness toward Father about matters relating to the divorce and that she and step-father may have a lifestyle predicated in part on the $1,300 per month child support paid by Father.
15. For the aforementioned reasons, Petitioner/Father prays that this Honorable Court will grant his Motion for the appointment of a Guardian ad litem for [J.V.] in this cause, and that the Guardian ad litem be instructed to obtain information concerning [J.VJ’s plan of treatment and the appropriate facilities available in Mother’s community and in Father’s community including the educational opportunities provided by the local school boards for a child with [J.VJ’s situation.
16. Petitioner/Father further prays that all costs in connection with this cause, including attorney fees and Guardian ad litem fees, be taxed to Mother for the necessity of having to file this pleading to protect the interest of his minor son, [J.VJ.

Responding to this petition the court entered an order on June 20, 2002 temporarily postponing the appointment of a Guardian ad litem but stating:

The Court is inclined to grant the Motion for the appointment of a guardian ad litem based in part upon the assurances of the Petitioner’s counsel that the Petitioner will bear responsibility for the payment of a guardian ad litem’s fee. Specifically, counsel for Mr. Varner indicated that her client would be willing to pay a guardian ad litem’s fee as long as the fee did not exceed $2,500. In the event the Court appoints a guardian ad litem, Mr. Varner will be required to pay the guardian ad litem up to $2,500, and, at the appropriate time, the Court will consider whether payment of the guardian ad litem’s fee should be apportioned between the parties.

By order of July 26, 2002, R. Reid Street was appointed with instructions from the court to “obtain information concerning the plan of treatment for [J.VJ’s psychiatric condition. Such information shall include the appropriate facilities available in the petitioner’s community and in the respondent’s community, particularly the educational opportunities provided by the local school boards for a child with [J.VJ’s situation.”

Non-jury trial was held February 10 and February 13, 2003 on the issues drawn by the pleadings, “upon the testimony of witnesses, the report of the guardian ad li-tem, Roger Reid Street, Jr., the evidentia-ry depositions filed by the parties, the arguments of counsel and the record as a whole.” The court held in pertinent part:

2. The Petitioner, Bruce Varner, failed to prove that a substantial and material change in circumstances has occurred which is sufficient to warrant a change of custody in this case.
3. The Petitioner, Bruce Varner, failed to prove that the best interests of the child require a change of custody.
4. The Court finds that the best interest of the child require that he continue to be under the absolute care, custody and control of the Respondent, Judy Kesterson, and that there is no credible evidence in the record to support a finding that Ms. Kesterson’s parenting skills have contributed to the problems experienced by the minor child, Jason Varner.
5. The Petition to change custody is dismissed.
6. The Respondent, Judy Kesterson, is granted a judgment against the Petitioner, Bruce Varner, for reasonable attorney’s fees she incurred in this matter in the amount of $25,160. The Court approves and adopts the Affidavit for Attorney’s Fees filed by Respondent’s counsel.
7. The Petitioner, Bruce Varner, is ordered to pay all of the Guardian ad litem’s fee in the amount of $7,975.50. The court approves and adopts the Affidavit filed by Mr. Street.

This order was entered on February 19, 2003 and Father filed a timely appeal.

The issues stated on appeal by Father are:

Whether the Trial Court erred in granting Appellee’s Motion to Dismiss at the conclusion of the Appellant’s case when the stated basis for the dismissal was a “best interests of the child” analysis although the Court had not made findings of fact as to the existence of a material change in circumstance.
Whether the Trial Court erred by failing to make findings of fact underlying the custody determination as required by Tennessee Code Annotated § 36-6-101. "Whether the Trial Court erred by failing to order the implementation of a Parenting Plan pursuant to § 36 — 6—[401] and by failing to consider the requirements of a Parenting Plan pursuant to § 36-6-404.
Whether the Trial Court erred by failing to find a material change in circumstance has occurred when a child is diagnosed by multiple psychiatrists and psychologists as suffering from a major mental illness and requires long term hospitalization and treatment and treating psychologist testifies that child could improve with Appellant.
Whether a Trial Court may order a party to litigation to pay the attorney fees and costs of the opposing litigant without specific statutory authorization for the order.
Whether a Trial Court may order a party to litigation to pay the entire fees and costs of a Guardian ad litem appointed by agreement of the parties and without the opportunity for a hearing on the submitted affidavit or on the relative ability of the parties to pay.
Whether the language of Tennessee Code Annotated § 36-6-101 as it existed at the time of filing of the Petition is controlling or whether the language of the amended statute in effect at the time of the hearing is controlling.

A. Change of Circumstances

At trial, Mother asserted the applicability of the rule in Musselman v. Acuff, 826 S.W.2d 920 (Tenn.Ct.App.1991) and Wall v. Wall, 907 S.W.2d 829 (Tenn.Ct.App.1995) that in order to effect a change of circumstances the non-custodial parent must show that “continuation of the adjudicated custody will substantially harm the child.” Wall, 907 S.W.2d at 834. Father asserted that Chapter 859 of the Public Acts of 2002, effective July 15, 2002, and codified as Tenn.Code Ann. § 36-6-101(a)(2)(B) alters the MusselmanfWall rule in that by the terms of the statute “a material change of circumstance does not require a showing of a substantial risk of harm to the child.”

As we addressed these issues in detail quite recently in Laurie Ann Searcy v. Sandy Lee Searcy, No. M2003-00036-COA-R3-CV, 2004 WL 2866973 (Tenn.Ct.App. Dec.13, 2004), we reiterate the analysis:

Wfhile this modification of custody and visitation Petition was making its way through the trial court, the standard to be applied in determining whether or not a change of circumstances had occurred was undergoing both a common law and a statutory metamorphosis, as Kendrick v. Shoemake, 90 S.W.3d 566 (Tenn.2002), Cranston v. Combs, 106 S.W.3d 641 (Tenn.2003), and the legislative enactment of Chapter 859 of the Public Acts of 2002 were running essentially simultaneous and parallel courses with the trial court proceedings in this case. The trial court applied a variation of the “substantial risk of harm” standard in its November 20, 2002 dismissal of this Petition for modification. We will discuss the metamorphosis of the rule at the outset.
Appellate decisions in recent years reflect much controversy as to what “change of circumstances” means in the context of a petition to modify an existing custody order. While there has never been any question but that the burden of proof in such a proceeding rests upon the non-custodial parent to prove that a change in circumstances has occurred, the controversy centers around what one must prove in order to establish a change of circumstances. In Dailey v. Dailey, 635 S.W.2d 391, 393 (Tenn.Ct.App.1981) this Court observed:
We agree that it is a well-settled principle in this jurisdiction that where an award of custody of a minor is made which has no restrictions or limitations it will support a plea of res judicata and to justify a petition for a change in custody there must have been such a change in circumstances as will directly affect the welfare of the minor.
In 1991, however, this Court held:
The paramount consideration in a custody proceeding is the best interest of the child. When the issue before the Court is whether to modify a prior custody order, it need not repeat the comparative fitness analysis that is appropriate at the time of the original custody degree. See e.g., Bah v. Bah, 668 S.W.2d 663 (Tenn.App.1983). Instead, in a modification proceeding, the trial judge must find a material change in circumstances that is compelling enough to warrant the dramatic remedy of changed custody. See, Tenn.Code Ann. § 36-6-101(a); Woodard v. Woodard, 783 S.W.2d 188 (Tenn.App.1989); Dailey v. Dailey, 635 S.W.2d 391 (Tenn.App.1981). Moreover, the burden is on the noncustodial parent to prove changed circumstances.
Musselman v. Acuff, 826 S.W.2d 920, 922 (Tenn.Ct.App.1991).
Thereafter, in a number of cases, this Court has followed the lead of Musselman v. Acuff in establishing that change of circumstances requires proof that such a change is necessary to prevent substantial harm to the child.
In order to be compelling enough to warrant the dramatic remedy of changed custody, the change of circumstances must be such that “continuation of the adjudicated custody will substantially harm the child.” Wall v. Wall, 907 S.W.2d 829, 834 (Tenn.App.1995). When the requested modification is based on the behavior of the custodial parent, such behavior must clearly posit or cause danger to the mental or emotional well-being of the child. Musselman v. Acujf, at 924. We also are mindful that custody decisions should not be designed to punish one parent or to reward the other. Wall v. Wall, 907 S.W.2d 829, 834 (Tenn.App.1995). Instead, our paramount concern remains the welfare and best interest of the minor child. In re Parsons, 914 S.W.2d 889, 893 (Tenn.App.1995).
This court has discussed “changed circumstances” as follows:
This decision [regarding custody] is not changeable except for “change of circumstances” which is defined as that which requires a change to prevent substantial harm to the child. Custody is not changed for the welfare or pleasure of either parent or to punish either parent, but to preserve the welfare of the child. Custody is not changed because one parent is able to furnish a more commodious or pleasant environment than the other, but where continuation of the adjudicated custody will substantially harm the child.
Wall v. Wall, 907 S.W.2d 829, 834 (Tenn.App.1995).
Thomson v. Thomson, No. 03A01-9809-CH-00308, 1999 WL 894446, at *8 (Tenn.Ct.App. Oct.18,1999).
This same analysis was applied by this Court in Brown v. Brown, No. 02A01-9709-CV-00228, 1998 WL 760936, at *8 (Tenn.Ct.App. Nov.2, 1998). This court said: “In the absence of any competent testimony that a continuation of the current custody arrangement presents a danger of substantial harm to Chandler, we decline to disturb the trial court’s decision to deny a change of custody.” Thereafter, the Court said in footnote:
The principle enunciated in Wall v. Wall, supra, is not at odds with the traditional “best interests” test. Ping-pong custody adjudications are not in a child’s best interests. This problem has been addressed with unanimity by Aaby, Musselman, and Contreras, as well as by Wall. Aaby, a parental relocation case, specifically held that “Tennessee allows custody to be changed if the behavior of the custodial parent dearly posits a danger to the physical, mental or emotional well-being of the child [citation omitted].” [Emphasis supplied]. Aaby v. Strange, 924 S.W.2d 623, 629 (Tenn.1966). Musselman, citing Ballard v. Ballard, 434 So.2d 1357, 1360 (Miss.1983), held: “It is only that behavior of a parent which dearly posits or causes danger to the mental or emotional well-being of a child ... which is sufficient basis to seriously consider the drastic legal action of changing custody.” [Emphasis supplied], Musselman v. Acuff, 826 S.W.2d 920, 924 (Tenn.App.1991). Contreras, quoting Sartoph v. Sartoph, 31 Md.App. 58, 354 A.2d 467, 473 (Md.App.1976), stated: “The custody of children should not be disturbed unless there is some strong reason affecting the welfare of the child. To justify a change in custody, the change in conditions must have occurred which affects the welfare of the child and not that of the parents.” [Emphasis supplied]. Contreras v. Ward, 831 S.W.2d 288, 290 (Tenn.App.1991). These cases are all in accord with the language of Wall v. Wall, supra, that, once a valid custody determination is made, such custody is not subject to change unless there is a “change of circumstances ... which requires a change to prevent substantial harm to the child.” Wall v. Wall, 907 S.W.2d 829, 834 (Tenn.App.1995). “In short, when all goes well with children, stability, not change, is in their best interests.” Contreras v. Ward, supra, citing Sartoph v. Sartoph. Brown, 1998 WL 760935, at *8 n. 3.
In Richardson v. Richardson, No. W2000-02374-COA-R3-CV, 2001 WL 687074, (Tenn.Ct.App. June 14, 2001), the Western Section of this Court again followed the Musselman and Wall rule relative to substantial harm to the child. In a prophetic concurring opinion, Judge Farmer questioned the continued viability of the Musselmarir-Wall standard asserting that: “I am concerned that we have created too harsh a standard by holding that a change of custody will be granted only upon a showing that a continuation of the adjudicated custody will substantially harm the child.” Richardson, 2001 WL 687074, at *7 (Farmer, J., concurring).
In 2002, the supreme court, in Blair v. Badenhope, 77 S.W.3d 137 (Tenn.2002), in the context of a custody case between a parent and a non-parent, observed: “[A] trial court should apply the standard typically applied in parent-vs-parent modification cases: that a material change in circumstances has occurred, which makes a change in custody in the child’s best interests.” Blair, 77 S.W.3d at 148.
Later in 2002, the supreme court expanded upon its Blair observation in Kendrick v. Shoemake, 90 S.W.3d 566 (Tenn.2002), holding:
The principal issue in this case concerns the proper standard to be applied to a petition to modify custody from one parent to the other parent. This issue is largely resolved by our recent decision in Blair v. Badenhope, 77 S.W.3d 137 (Tenn.2002). Blair involved a custody dispute between a parent and a non-parent. We concluded that once a valid order of custody has been issued, subsequent custody modification proceedings should apply the “standard typically applied in parent-vs-parent modification cases: that a material change in circumstances has occurred, which makes a change in custody in the child’s best interests.” Id. at 148. As explained in Blair, the “threshold issue” is whether a material change in circumstances has occurred after the initial custody determination. Id. at 150. While “[t]here are no hard and fast rules for determining when a child’s circumstances have changed sufficiently to warrant a change of his or her custody,” the following factors have formed a sound basis for determining whether a material change in circumstances has occurred: the change “has occurred after the entry of the order sought to be modified,” the change “is not one that was known or reasonably anticipated when the order was entered,” and the change “is one that affects the child’s well-being in a meaningful way.” Id. (citations omitted). We note that a parent’s change in circumstances may be a material change in circumstances for the purposes of modifying custody if such a change affects the child’s well-being.
Kendrick, 90 S.W.3d at 570.
Finally, in 2003, the supreme court laid to rest any lingering doubt about the demise of the Musselman-Wall rule. In Cranston v. Combs, 106 S.W.3d 641 (Tenn.2003) that court held:
We granted review to determine whether the Court of Appeals erred in determining that the appellant (father) in this post-divorce case failed to present evidence of a material change of circumstances justifying a change of custody of the parties’ two minor children. The Chancellor granted a change in custody from the appellee (mother) after finding that there was a material change in circumstances that presented a substantial risk of harm to the children. A majority of the Court of Appeals reversed, holding that there was no material change of circumstances that presented a threat of substantial harm to the children. After reviewing the record and applying our recent decision in Kendrick v. Shoemake, 90 S.W.3d 566 (Tenn.2002), we conclude that a material change of circumstances occurred after the initial custody determination and that the modification of custody was in the best interest of the children. Although the Chancellor and the Court of Appeals did not have the benefit of Kendrick in this case, and therefore applied an incorrect legal standard, we affirm the result reached by the Chancery Court. Accordingly, the judgment of the Court of Appeals is reversed, and the judgment of the Chancery Court is reinstated.
A majority of the Court of Appeals reversed the Chancery Court’s change of custody ruling, concluding that Cran-ston and Combs “bickering” over visitation did not constitute a material change of circumstances that presented a threat of substantial harm to the children. Indeed, the majority determined that Combs failed to present evidence “rising to the level of substantial harm” to his son and “no actual evidence of any harm at all” to his daughter. The majority therefore concluded that it was unnecessary to apply a comparative fitness analysis. Special Judge Ash dissented, concluding that the Chancery Court properly found that a material change in circumstances existed and properly applied the comparative fitness analysis.
Cranston, 106 S.W.3d at 642, 643.
So it was that, in Cranston v. Combs, the controlling issue was placed directly before the supreme court contrasting the Musselmanr-Wall rule, as relied on by the majority of this Court, with the less stringent rule asserted in dissent by Special Judge Don Ash.
The supreme court left little doubt as to the controlling rule relative to “change of circumstances.”
The appellant, Combs, argues that a finding of “harm” is not a prerequisite to changing an initial custody determination under Tennessee law. The appellant also argues that even if a finding of “harm” is required, the Chancery Court’s custody determination should be reinstated because it found a “substantial risk of harm” and concluded that a change of custody was in the best interests of the children.
The appellee, Cranston, argues that the trial court must find “harm” before engaging in a comparative fitness analysis for the purpose of a change in custody determination. The appellee asserts that the Court of Appeals’ majority correctly determined that there had been no evidence of a material change in circumstances creating a risk of harm to the children and reversed the Chancery Court’s ruling.
Our recent decision in Kendrick v. Shoemake, 90 S.W.3d 566 (Tenn.2002), resolves the issues before this Court. We held in Kendrick that the modification of a valid order of custody must be based on the “ ‘standard typically applied in parent-vs-parent modification cases: that a material change in circumstances has occurred, which makes a change in custody in the child’s best interests.’ ” Id. at 570 (quoting Blair v. Badenhope, 77 S.W.3d 137, 148 (Tenn.2002)).
We clarified that this standard requires the trial court to engage in a two-step process to make its final custody determination. First, the court must determine whether a material change in circumstances has occurred after the initial custody determination. Although there are no bright-line rules for determining when such a change has occurred, there are several relevant considerations: (1) whether a change has occurred after the entry of the order sought to be modified; (2) whether a change was not known or reasonably anticipated when the order was entered; and (3) whether a change is one that affects the child’s well-being in a meaningful way. Kendrick, 90 S.W.3d at 570; see also Blair, 77 S.W.3d at 150.
Second, after finding that a material change in circumstances has occurred, the trial court must determine whether modification of custody is in the child’s best interests using the factors enumerated in Tennessee Code Annotated section 36-6-106 (2001).
Cranston, 106 S.W.3d at 643-44.
Running a parallel course to the events in Kendrick, Cranston, and the case at bar was a legislative initiative that culminated in the enactment of Chapter 859 of the Public Acts of 2002 effective as of July 15, 2002. This Act was not effective as of the June 26, 2002 hearing in the case at bar. It was, however, effective prior to the disposi-tive Order of the trial court of November 20, 2002.
Kendrick and Cranston both acknowledged this legislative act, which was codified as Tennessee Code Annotated section 36-6-101(a)(2)(B). In footnote, it is observed in Cranston:
As the parties have noted, the legislature has enacted Tennessee Code Annotated section 36-6-101(a)(2)(B) (2001 & Supp.2002), which provides: If the issue before the court is a modification of the court’s prior decree pertaining to custody or a residential parenting arrangement, the petitioner must prove by a preponderance of the evidence a material change in circumstance. A material change of circumstance does not require a showing of a substantial risk of harm to the child. A material change of circumstance may include, but is not limited to, failures to adhere to the parenting plan or circumstances which make the parenting plan no longer in the best interest of the child. (Emphasis added).
Although the statute did not become effective until July 15, 2002, ie., after the proceedings in this case, it reflects that the legislature has likewise clarified that a substantial risk of harm to a child is not required to find a material change in circumstances for the purpose of modifying a custody decree. See Kendrick, 90 S.W.3d at 570 n. 5 (discussing the enactment of Tenn.Code Ann. § 36-6-101(a)(2)(B)).
Cranston, 106 S.W.3d at 644 n. 1.
Thus, both by common law development and by legislative enactment, Musselman v. AcuFf, Wall v. Wall, and all of their respective progeny as to this issue have been overruled.

Laurie Ann Searcy v. Sandy Lee Searcy, No. M2003-00036-COA-R3-CV, 2004 WL 2866973, *1-6 (Tenn.Ct.App. Dec.13, 2004).

B. Standard of Review of Involuntary Dismissal Under Tenn. R. Civ. P. 41.02.

The trial court dismissed this petition at the close of petitioner’s proof on the grounds that Father had shown no right to relief. In argument before that court Father asserted, “you must take [the testimony before the court] in the light most favorable to the petitioner on the motion to dismiss at the conclusion of the plaintiffs proof.”

The rule provides:

After the plaintiff, in an action tried by the court without a jury, has completed the presentation of plaintiffs evidence, the defendant, without waiving the right to offer evidence in the event the motion is not granted, may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court shall reserve ruling until all parties alleging fault against any other party have presented their respective proof-in-chief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all evidence; in the event judgment is rendered at the close of plaintiffs evidence, the court shall make findings of fact if requested in writing within three (3) days after the announcement of the court’s decision.

Tenn. R. Civ. P. 41.02(2).

Shortly after adoption of the Tennessee Rules of Civil Procedure, this Court assessed the standard applicable to a ruling on a motion to dismiss at the conclusion of the plaintiffs proof:

We are of the opinion, however, that in passing upon the motion of defendant to dismiss at the conclusion of complainant’s proof, the chancellor is not relieved of the duty of looking to all of the evidence and of taking the strongest legitimate view of it in favor of the opponent of the motion, allowing all reasonable inferences from it in his favor.

Butts v. Birdwell, 503 S.W.2d 930, 937 (Tenn.Ct.App.1973).

This interpretation of Tenn. R. Civ. P. 41.02(2) in Butts v. Birdwell was repudiated by the Tennessee Supreme Court in City of Columbia v. C.F.W. Const. Co., 557 S.W.2d 734 (Tenn.1977).

The motion authorized by this rule is not to be confused with a motion for directed verdict which is authorized by Rule 50, Tennessee Rules of Civil Procedure. Motions for a directed verdict are neither necessary nor proper in a case which is being tried without a jury. Motions for dismissal in non-jury cases under Rule 41.-02(2), Tennessee Rules of Civil Procedure, and motions for directed verdicts in jury cases under Rule 50, Tennessee Rules of Civil Procedure, are somewhat similar, but, there is a fundamental difference between the two motions, in that, in the jury case, the judge is not the trier of facts while in the non-jury case he is the trier of the facts. In the jury case he must consider the evidence most favorably for the plaintiff, allow all reasonable inferences in plaintiff’s favor and disregard all counteracting evidence, and, so considered, if there is any material evidence to support a verdict for plaintiff, he must deny the motion. But in the non-jury case, when a motion to dismiss is made at the close of plaintiffs case under Rule 41.02(2), the trial judge must impartially weigh and evaluate the evidence in the same manner as though he were making findings of fact at the conclusion of all of the evidence for both parties, determine the facts of the case, apply the law to those facts, and if the plaintiffs case has not been made out by a preponderance of the evidence, a judgment may be rendered against the plaintiff on the merits, or, the trial judge, in his discretion, may decline to render judgment until the close of all the evidence. The action should be dismissed if on the facts found and the applicable law the plaintiff has shown no right to relief.

City of Columbia v. C.F.W. Const. Co., 557 S.W.2d at 740.

C. Standard of Review as to the Facts

Normally, review of the facts on appeal of a non-jury case is governed by Tenn. R.App. P. 13(d). The findings of fact of the trial court are presumed to be correct unless the evidence preponderates otherwise. See Berryhill v. Rhodes, 21 S.W.3d 188, 190 (Tenn.2000); see also Farrar v. Farrar, 553 S.W.2d 741, 743 (Tenn.1977). In cases such as the case at bar where the trial court has made no findings of fact, review of the facts is de novo on the record before the court without any presumption of correctness. Brooks v. Brooks, 992 S.W.2d 403, 404 (Tenn.1999). The reason for such rule is “since the trial court made no findings of fact, there is nothing in this record upon which the presumption of correctness contained in Tenn.R.App. P. 13(d) can attach.” Kelly v. Kelly, 679 S.W.2d 458, 460 (Tenn.Ct.App.1984).

D. The Petitioner’s Burden

The burden of proof is on the petitioner to establish that a material change of circumstances has occurred; that he or she is comparatively more fit than the party with custody under the challenged custody decree; and that it would be in the child’s best interest for the moving party to become the custodial parent. See Hoalcraft v. Smithson, 19 S.W.3d 822, 830 (Tenn.Ct.App.1999). The relevant considerations in determining whether or not a change of circumstances has occurred are: (1) whether a change has occurred after the entry of the order sought to be modified; (2) whether a change was known or reasonably anticipated when the order was entered; and (3) whether a change is one that affects the child’s well-being in a meaningful way. Kendrick, 90 S.W.3d at 570, Cranston, 106 S.W.3d at 644; see also Blair v. Badenhope, 77 S.W.3d 137, 150 (Tenn.2002).

After the original custody decree was entered in this case, the child was diagnosed in the ensuing years to be suffering from Attention Deficit Hyperactive Disorder, Oppositional Defiant Disorder, Depressive Disorder and Bipolar Disorder. No evidence in the record indicates that at the time of the original custody decree either of the parties were aware of any potential for the development of these serious mental problems. The behavior of J.V., exhibited in school and otherwise, and established by the expert testimony to be consistent with his mental disorders, obviously affects the child’s well-being in a meaningful way. The preponderance of the evidence clearly establishes a change of circumstance since the entry of the original custody decree. The determinative question is whether or not Petitioner Bruce Varner has established by a preponderance of the evidence that a change of custody is in the best interest of J.V.

At the outset of the hearing Petitioner called R. Reid Street, court-appointed guardian ad litem, as a witness. The record discloses:

THE COURT: It might be good for the Court to ask this preliminarily. Ms. Harrington, do you have any objection to the Guardian-Ad-Litem report being admitted into evidence as an evidentiary item?
MS. HARRINGTON: No, I do not. In fact—
THE COURT: Mr. Schell?
MR. SCHELL: No, objection.
THE COURT: Be marked as Exhibit No. 1. And I will let the clerk recover it from the file and that will be marked as Exhibit No. 1 for evidence.

The record reflects that the thoroughness and completeness of the report of the guardian ad litem did not go unnoticed by the parties or the court.

Q. Did you try to follow the course of treatment that [J.V.] followed beginning in the fall of 2001?
A. What I did, I got all the records — the records were provided to me by you, Ms. Harrington, and Mr. Schell. And I participated in some of the depositions. And then I obtained some records on my own from the present physician that he has. And since — you want me to go through the treatment, what’s taken place since fall of 2001?
Q. I think you’re being very helpful to the Court.
A. Well my report—
Q. It would save us a little time?
A My report details that in the history and I will have to refer to it.
THE COURT: You may. It is a very good report, very thorough, Mr. Street. The Court is very pleased with your work.

The report of the guardian ad litem provides, in part:

Following the divorce, Ms. Kesterson (Varner) was remarried on January 12, 1990, to Dr. Robert Kesterson and Mr. Varner was remarried on February 24, 1990, to Laura Varner. Ms. Kesterson has had continuous custody of [J.V.] since her remarriage with the exception of a three (3) month period from December, 2000, to March, 2001, when [J.V.] lived with Mr. Varner in Chicago. [J.V.] was initially diagnosed as ADHD in 1993. Since that time he has been treated by a number of physicians, psychologists and psychiatrists. During the period of time from 1993 to 1998 [J.V.] continued to have problems at school and at home, and during this period of time various medications were used with Ritalin being the most prevalent. During this period of time from 1993 to 1998, there were periods of summer visitation with Mr. Varner and periods of Christmas visitation; however, no spring break visitation is ever exercised by Mr. Varner. In the fall of 1998, [J.V.] began attending Grassland Middle School and he began encountering problems while at the school. Until Christmas 2000, [J.V.] was involved in a number of instances of inappropriate behavior which created significant problems. During this period of time [J.V.] was under the treatment of Dr. Vedavyara B. Biliyar, M.D. and it was while under the treatment of Dr. Biliyar that he suggested [J.V.] go to five with his father for a period of time. The parties discussed the situation and it was agreed that in December, 2000, [J.V.] would live in Chicago with his father. While living in Chicago [J.V.] made one (1) visit to Franklin after which he ([J.V.]) accused his step-father, Robert Kesterson, of abusing him after returning to Chicago. [J.V.] remained in Chicago until spring break 2001, when he returned to Franklin for a visit. Following this visit Ms. Kesterson refused to allow [J.V.] to return to Chicago. It was her position and opinion that [J.V.Js condition had deteriorated while in Chicago and that it was in his best interest to remain in Tennessee. During the period of time April to September, 2001, [J.V.] lived with his mother and step-father but his condition apparently continued to go downhill until late September when Ms. Kesterson admitted [J.V.] to Vanderbilt Psychiatric Hospital. Immediately prior to this admission [J.V.] had been sent to the Williamson County Alternative Learning Center. Further, [J.V.] had been threatening his brother and according to Ms. Kesterson was doing other “bizarre things.” While in Vanderbilt Psychiatric Hospital [J.V.] was treated by Dr. Charles Corbin who gave him a diagnosis of: (1) Bipolar Disorder, Manic; (2) Attention Deficit Hyperactivity Disorder, and, (3) Oppositional Defiant Disorder. Also, Dr. Corbin noted that [J.V.] was “continuously manipulative, impulsive and difficult to guide and treat.” Dr. Corbin further recommended a long-term residential treatment center. However, after his release from Vanderbilt Psychiatric Hospital [J.V.] was sent back to the Williamson County schools’ Alternative Learning Center where he remained for approximately the next three (3) weeks. [J.V.] continued to have problems at the ALC and it was recommended that he receive inpatient hospitalization at Tennessee Christian Medical Center (TCMC). TCMC was chosen apparently because Dr. Biliyar was the medical director. Dr. Biliyar previously had given [J.V.] a diagnosis of: (1) Attention Deficit Hyperactive Disorder; (2) Oppositional Defiant Disorder-Mild; and, (3) Depressive Disorder not otherwise specified. After a one (1) week stay at TCMC, [J.V.] was transferred to Peninsula Village Treatment Center in Louisville, Tennessee for approximately nine (9) weeks. While at Peninsula Village [J.V.] was given a diagnosis of:(l) Bipolar Disorder — Not Otherwise Specified, Most Recent Phase Mixed; (2) Oppositional Defiant Disorder, and, (3) Ruleout Parent/Child Relationship Problems. It subsequently was determined by the Peninsula Village staff that this facility was not an appropriate place for individuals with problems such as [J.V.]s. Accordingly, Ms. Kesterson and her husband began searching for another facility.
The Devereux Florida Treatment Facility in Viera, Florida was determined to be an appropriate placement and [J.V.] was transferred to that facility on January 12, 2002. [J.VJ’s diagnosis at the time of admission was: (1) Dysthy-mia; (2) Attention Deficit Hyperactivity Disorder, Combined Type; (3) Oppositional Defiant Disorder, and, (4) Ruleout Psychiatric Disorder NOS. [J.V.] remained at this facility until May 31, 2002, when he was discharged with a discharge diagnosis similar to the admitting diagnosis. Also, at the time of discharge [J.V.] was on two (2) medications, Ritalin and Tagamet, and he was discharged to the care of Ms. Kesterson. Upon his return to Tennessee [J.V.] was referred to Youth Villages for followup counseling following his inpatient treatment. [J.V.] began his freshman year at Franklin High School in August, 2002, and has now completed his first semester at Franklin. Further, since June, 2002, [J.V.] has been under the treatment of Dr. Gilbert Raulston, M.D. Dr. Raulston initially stated that [J.V.] met the criteria for ADHD — Combined Type as well as Oppositional Defiant Disorder. In June, 2002, he stated that he was a “bit reticent” to make a diagnosis of Bipolar Disorder, however, on October 28, 2002, it appears from his treatment notes that a diagnosis of Bipolar Disorder — Mixed was made.

Review of the record and the depositions of all of the expert medical witnesses establishes that the guardian ad litem has succinctly and accurately portrayed the history of a very bright young man with serious mental problems. Both Bruce Varner and his present wife, Laura Var-ner, on the one side, and Judy Kesterson and her husband, Dr. Robert Kesterson on the other feel strongly that they provide the best hope for the future of J.V. The record, however, is replete with evidence that a very intelligent child is manipulative to the extreme and will resort to practically anything to accomplish his desires.

Dr. James Guy Wellborn, a practicing clinical psychologist in Williamson County, began working with J.V. on June 20, 2001, thereafter meeting with both J.V. and the Kesterson family and by telephone with Mr. Varner. When counsel for Mr. Varner ventured an observation that the Kester-sons were simply “worn out” with the child, Dr. Wellborn responded:

What I would say about [J.V.] is it is difficult for me to imagine a parent who would not be exhausted by this kid regardless of their view about feistiness being a desirable thing or high energy or that kind of business in the experience that I’ve had with him both in the school setting and individually and with the family.

Dr. Wellborn further testified on cross-examination:

Q. In your treatment of [J.V.], did you find him to be manipulative?
A. Yes.
Q. Confrontational?
A. He’s remarkably successful in it because he’s very bright and so ...
Q. Did you get the impression that he was playing his parents off of one against each other?
A. Yes.
Q. Meaning Mr. Varner and Ms. Kesterson.
A. Everybody. He played everybody. He played the Kestersons off each other. He played his mom and stepdad against his dad and stepmom. He played the teachers. Oh, yeah, this is like — this is expectable; that’s not unusual.
Q. And when it was reported to you that [J.V.]’s behavior in Illinois was essentially the same as it was when he was here, did that surprise you to hear that?
A. Oh, no.
Q. Would you have been surprised if it were otherwise?
A. Yes. It would have been unexpected given my diagnosis, and given my own understanding in my mind about what I considered to be going on, it would have surprised me.

Dr. Vedavyasa Biliyar, a treating psychiatrist for J.V., defined his behavior in terms similar to Dr. Wellborn.

Q. [J.V.] tends to be verbally aggressive in your experience?
A. Well, periodically. Again, he can be very sweet too. He’s a master manipulator.
Q. That was my next question. Does he tend to manipulate situations?
A. (Moves head up and down.)
Q. And is it your impression then that he tends to manipulate both his mother and his father, Mr. Varner?
A. Yes.
Q. Does he tend to tell each of them what he thinks they want to hear?
A. Correct. Or what he wants out of them, what he wants them to think at that time.
Q. You found him to be a young man who tends to exaggerate?
A. Very dramatic. That’s why I put him in the histrionic personality.
Q. And sometimes his exaggerations are to the point of untruths, in your opinion?
A. Yes, yes.
Q. Is it possible to tell whether some of [J.VJ’s problems are genetic as opposed to learning behaviors?
A. Yes, yes.
Q. Can you tell us what of his problems you believe are genetic?
A. The impulsivity — you know, actually bipolar disorder is a genetic disorder. But I remember dad saying that he’s just like [J.V.], therefore, I believe that he had ADHD. But I remember mother saying that she was hyperactive too. He possibly gets it from both sides, the impulse control problem. Now, the bipolar, I don’t know, the emotional intensity, I don’t know where he got it from.
Q. Is [J.V.] the kind of child who tends to need more supervision and guidance than your average child?
A. Oh, yes.

When J.V. entered Peninsula Village Treatment Facility on November 9, 2001, he was treated by Dr. Gregory Gass, staff psychiatrist. Dr. Gass testified:

Q. Can you give me some specific examples of behavior or conduct on [J.V.j’s part that was thought to be inappropriate while he was there?
A. Okay. He was quite demanding. I can’t remember a specific what it was he wanted, but I do remember that there were some — I’m pretty sure there were some physical restraints that had to do with simply his not understanding that at a certain time things don’t happen or that you cannot always have your way.
I know at the time, we had a smaller unit that we had to move a group of patients that were inappropriate for treatment into — as they were disrupting the unit so badly with things like temper tantrums, and I know [J.V.] tended to do that. He was having quite a few tantrums.
Q. Did [J.V.j’s behavior improve at all while he was at your facility?
A. No. Actually, it fluctuated. With the confrontational style we have with simply trying to understand that there are rules to life and consequences with rules, he would get very frustrated.
When he came in, he really wasn’t demonstrating any fluctuation in mood state. And I was questioning the diagnosis from the beginning, of the bipolar disorder. It was more based on historical reports and the transfer diagnosis.
So, I had initiated some medication tapers, and the Zyprexa specifically is an anti-psychotic agent that is used also in bipolar disorder for mood stabilization. When I attempted to taper his Zyprexa, we saw a real deterioration in [J.V.]. He not only would become easier just to react to the environment and be frustrated, but his interpretation of it was not quite accurate.
I remember specifically him pointing out that the rest of the world was misperceiving it, he was the only one that was correct. Those aren’t his exact words, but that was his perception, was that we were all mistaken and he was the only one correct in his interpretation of reality.
Q. So, if I understand your testimony correctly, his length of stay there at Peninsula Village was not, or was it, a typical length of stay; is that correct?
A. No, it was an atypical. We are a long-term treatment facility. Our patients average eight months here. A full course of treatment is more like a year, as it has to do with simply behaviors and personality.
[J.V.] demonstrated some thought disorders. He wasn’t willing to attach to other people. His — And when you look at the supplemental testing, he was organized at a psychotic level in terms of the way he interpreted the world. He was functioning totally — not totally, but he was functioning primarily with an internal world as opposed to reacting from cues in his environment.
We can’t treat a patient like that here. Actually, our confrontational style could potentially make a patient like that worse. And when we recognize we are dealing with that, we generally refer to a more traditional psychiatric setting that works more with thought disorders and can give more individualized a treatment as opposed to we do more of a group treatment.

On January 22, 2002, J.V. was transferred from Peninsula Village Residential Psychiatric Facility to the Children’s Services Center at Devereux, Viera. At this facility he was treated by Dr. Manal Soli-mán, chief psychiatrist for Children’s Services. The testimony of Dr. Solimán deviates very little from the testimony of the other professionals. In response to a question by the guardian ad litem he set forth what appears to be the controlling problem relative to custody.

Q. If [J.V.J’s custody was changed from his mother to his father and he went to Chicago to live, are you saying that when he had disagreements with his natural father and his stepmother, he would start idealizing his mother and stepfather in Tennessee?
A. I think that would happen wherever he lived. He could have a disagreement with either set of parents wherever he lived and, he would then idealize the set of parents that he wasn’t disagreeing with at the moment. He isn’t a malicious person, but the normal — this normal pitting of one parent against another during this phase of development is exaggerated when the parents are physically not able to be in the same community. That’s why it really— it would be in [J.V.]’s best interest for the parents to talk to one another more.
Q. When you were involved in this case, did you find that the parents didn’t talk to each other regarding [J.VJ’s best interests or just didn’t talk to each other?
A. I found that they were very reluctant to talk to each other. They avoided having any conjoint, that is simultaneous sessions, where they would all be present together. And that is because they’re human beings and they were angry at one another. It’s unfair, I believe, to expect them to be talking to one another with [J.V.] unless they can first resolve their own issues with each other, and that may mean just agreeing to talk to each other regularly on the phone.

As a petitioner seeking the change of custody, Bruce Varner’s major difficulty is the burden of proof to the best interest consideration. He agrees that J.V. is an extraordinarily difficult child. When the parents agreed for J.V. to go to Chicago and try living with his father this behavior continued. J.V. was suspended from Had-ley Middle School for disruptive behavior. The continuing behavior and suspension do nothing to bear the burden of proof.

The guardian ad litem made a careful investigation of all of the parties in this case in the course of which he undertook a trip to Chicago and the Glen-Ellyn suburb of Chicago to investigate school conditions, housing and neighborhood conditions around the home of Bruce Varner. During the course of the guardian’s testimony, the trial court inquired as to whether or not he had formulated an opinion as to which parent should assume the primary parenting role.

THE COURT: My original question is yes or no; do you have an opinion on that issue?
THE WITNESS: Yes, I have an opinion.
THE COURT: All right. Do the attorneys have any objection to the Court asking the Guardian-Ad-Litem what his opinion is on that question alone? Mr. Schell?
MR. SCHELL: No objection.
THE COURT: Ms. Harrington?
MS. HARRINGTON: No objection.
THE COURT: All right, then I’m going to ask this Guardian-Ad-Litem what your opinion is.
THE WITNESS: Based on what I’ve seen. Based on what I’ve studied, it would be my opinion that [J.V.] should stay here. And that’s based on the fact that he is doing better in school now. Based on the fact that I feel Ms. Kester-son addresses the issues — has been addressing the issues of the medical problems that [J.V.] has. And I don’t think Mr. [Varner] fully addressed those issues or truly came to the conclusion there were medical problems until very recently.
THE COURT: So in order to get a direct answer, the direct answer is the mother?
THE WITNESS: The mother, yes, sir.

The trial court faced a very difficult decision involving a very difficult child. The mental, psychological and emotional problems of this very gifted child defy adequate solution. Both parents are genuinely interested in J.V. and in their differing ways each seeks to do what is in the child’s best interest. The preponderance of the evidence supports the decision of the trial judge in leaving custody with the mother. Mr. Varner has simply failed to carry his burden of proof to establish that his care for J.V. as primary residential parent would work any more for the best interest of J.V. than leaving primary residential custody with Mrs. Kesterson.

Mr. Varner complains of the allowance by the trial court of attorney’s fees for Mrs. Kesterson and further in taxing the guardian ad litem fee entirely to Mr. Varner. Under Tennessee Code Annotated § 36-5-103(c) the award of attorney’s fees is in the discretion of the trial court. Sherrod v. Wix, 849 S.W.2d 780 (Tenn.Ct.App.1992). The allowance, as well, of guardian ad litem fees is discretionary with the trial court. Tenn. R. Civ. P. 54.04. Mr. Varner argues that he did not receive “a reasonable opportunity to prepare his defenses and objections” before the court assessed the GAL fees and opposing counsel’s attorney fees against him. For Authority, the Mr. Varner relies upon the following discussion from Oster v. Yates:

Employer next insists that it should not have been taxed with employee’s trial preparation expenses, consisting of $84.00 for the costs of transcribing Dr. Allen’s deposition, $35.00 for a copy of the employee’s discovery deposition, $10.00 for a copy of Dr. Allen’s medical records and $2.69 for a copy of the first injury report from the Department of Labor.
Tenn. R. Civ. P. 54.04(2) provides as follows:
(2) A party who desires to recover discretionary costs or any recoverable costs not included in the bill of costs prepared by the clerk of the trial court shall move the court to assess discretionary costs and attach thereto an itemized and verified bill of costs. The affidavit shall be made by the party or his duly authorized attorney or agent having knowledge of the facts, certifying that such items of costs are accurate and were reasonable and necessary to preparation and trial of the case and that the services for which such fees have been charged were actually performed. The motion shall be filed as a post trial motion pursuant to Rule 59.01.
The rule was cited with approval in Lock v. Nat. Union Fire Ins. Co. of Pittsburgh, Pa., 809 S.W.2d 483 (1991), in which case a post trial motion was filed in strict compliance with Rule 59.01, as required. In the present case, at the conclusion of the hearing, employee’s attorney orally moved to have discretionary costs taxed against the employer. No affidavits were filed and no hearing relative to the reasonableness or necessity of the claimed expenses was held. The matter was not treated as a post trial motion. In short, employer was not given a reasonable opportunity to prepare and present its defenses and objections to the motion. Under these circumstances, we are persuaded that the allowance of discretionary costs was an abuse of discretion.

Oster, a Div. of Sunbeam Corp. v. Yates, 845 S.W.2d 215, 217 (Tenn.1992).

Oster involved a worker’s compensation claim in which the plaintiff, at the close of the hearing made an oral motion for discretionary costs without accompanying affidavits. In this respect the case is distinguishable on its facts from the case at bar. Mr. Varner requested the appointment of the guardian ad litem. The court in its order disposing of the motion put Mr. Var-ner on notice of the possibility of paying the entirety of those fees. The transcript reveals the following additional exchange regarding the entry of Mr. Street’s fee affidavit:

THE COURT: With that regard, Mr. Street, I’ll excuse you from the rest of the proceedings. If something comes up requiring your coming back, we’ll let you know.
[MR. STREET]: I prepared an affidavit of my time and expenses.
THE COURT: Any objection to it being submitted?
MR. SCHELL: No, sir, I’ve seen it.
MS. HARRINGTON: No, sir, I’ve seen it.
THE COURT: All right it will be Exhibit 2.

The albeit unusual form of entry did not prohibit counsel from interposing an objection as to the admissibility or propriety of the exhibit, or attempting to reserve the right to cross-examine the witness at a different point in the proceedings. From a review of the guardian’s report and testimony the fees charged were quite reasonable.

As for the attorney’s fees, Mr. Schell likewise prepared an affidavit of fees and expenses which the trial court requested in making its ruling. Contrary to his assertion in his brief, the record reveals no effort made on the part of Mr. Varner to object to those fees, or bring any challenge to the trial court alleging error in its consideration of the affidavit. See Tenn. R. C.V. P. 59.04; 60.02. In light of this failure to afford the trial court an opportunity to correct any alleged error argued here, we are disinclined to second guess the trial court’s exercise of its discretion. See Tenn. R.App. 13(d), see also Barnhill v. Barnhill, 826 S.W.2d 443, 456 (Tenn.Ct.App.1991). Woodlawn Mem’l. Park, Inc. v. Keith, 70 S.W.3d 691, 698 (Tenn.2002).

The judgment of the trial court is in all respects affirmed and the case is remanded to the trial court for further proceedings. Costs of the cause are taxed against the appellant, Bruce Varner.