text:
    LENSCRAFTERS, INC. v. Don SUNDQUIST, in his official capacity as Governor of the State of Tennessee, et al.
    Supreme Court of Tennessee, at Nashville.
    Dec. 13, 2000.

      Barbara J. Moss, Nashville, TN, for the movant, LensCrafters, Inc.
    Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Michelle Hohnke Joss, Assistant Attorney General, for the respondent, Don Sundquist, in his official capacity as Governor of the State of Tennessee, et al.
   OPINION

BIRCH, J.,

delivered the opinion of the

court,

in which ANDERSON, C.J., DROWOTA, HOLDER, and BARKER, JJ., joined.

This case is before the Court on a certified question from the United States District Court for the Middle District of Tennessee. The moving party, LensCrafters, Inc., (LensCrafters) owns optical stores throughout the United States and produces prescription ophthalmic materials on its premises. LensCrafters leases space to licensed optometrists who perform eye examinations. Prescription lenses and frames are then made and fitted, all in furtherance of the concept of “one-stop shopping.” LensCrafters sued in the district court to challenge the constitutionality of TenmCode Ann. § 63-8-113(c)(6) (1997). This statute defines as unlawful and thus prohibits optometrists from:

[practicing] or [offering] to practice optometry in, or in conjunction with, any retail store or other commercial establishment where merchandise is displayed or offered for sale.

(Emphasis added.) The question certified to us by the district court is whether an entity engaged primarily in the business of selling eyeglasses and frames is a retail store or other commercial establishment as defined by the above-quoted statute. We accept the certified question and answer that such entities are “retail stores or other commercial establishments” as statutorily defined.

I. Facts and Procedural History

LensCrafters is an Ohio corporation which owns numerous optical superstores throughout the United States. LensCraft-ers sells prescription ophthalmic lenses and frames on its premises and employs dispensing opticians to produce these materials. In addition, LensCrafters leases space at its stores to licensed Tennessee optometrists so that customers may obtain eye examinations and have prescription eyeglasses made at the same location.

In April 1997, the Tennessee Board of Optometry (Board) sanctioned Jeffery A. Rothman, O.D., an optometrist who leased space from LensCrafters. The Board found that Rothman had violated Tenn. Code Ann. § 63 — 8—113(c)(6) (1997), which prohibits optometrists from practicing “in, or in conjunction with, any retail store or other commercial establishment where merchandise is displayed or offered for sale.” The Board, in addition to imposing a $1,000 fine, ordered Rothman to close his practice within thirty days unless he were to accomplish the following: (1) install closable, lockable doors separating his leased space from LensCrafters; (2) provide a separate entrance from the outdoors to his space; and (3) provide a waiting-room area near the separate entrance. Rothman petitioned for chancery court review pursuant to TenmCode Ann. § 4-5-322 (1997).

While review was pending, LensCrafters brought suit in the United States District Court for the Middle District of Tennessee against Don Sundquist, in his official capacity as Governor of the State of Tennessee, and the members of the Tennessee Board of Optometry, in their official capacities. In that suit, LensCrafters challenged the constitutionality of Tenn.Code Ann. § 63 — 8—113(c)(6), contending that the statute violates the Dormant Commerce Clause, the Equal Protection Clause, and the Due Process Clause of the United States Constitution because it allows businesses owned by Tennessee-licensed optometrists to sell optical products and conduct eye examinations in the same location but does not allow out-of-state-owned retail establishments to do so. Upon the defendants’ motion for summary judgment, however, the parties agreed that if Tenn. Code Ann. § 63-8-113(c)(6) were interpreted to exclude entities engaged primarily in the business of selling and dispensing ophthalmic lenses and frames from the definition of “retail store or other commercial establishment,” then it would be unnecessary to reach the constitutional issues that LensCrafters had raised. To resolve this issue, the district court certified the following question for our determination:

Whether an entity engaged primarily in the business of selling and dispensing ophthalmic lenses and frames is a “retail store or other commercial establishment” within the meaning of Tenn.Code Ann. § 63-8-113(c)(6)?

We accepted this question for review and now respond that such an entity is a retail store under the statute.

II. Analysis

The parties in this case contend that this Court should interpret Tenn.Code Ann. § 63-8-113(c)(6) to exclude businesses which sell ophthalmic lenses and frames because a contrary interpretation would render the statute unconstitutional. They contend that the restriction against practicing in or in conjunction with a retail store discriminates against out-of-state stores, thereby unduly burdening interstate commerce. We begin by discussing the constitutional aspects of the parties’ construction of the statute.

The states are allowed great leeway under their police power to adopt regulations that protect the health and safety of their citizens. Although the Constitution confers “upon Congress the regulation of commerce, ... [it was] never intended to cut the States off from legislating on all subjects relating to the health, life, and safety of their citizens, though the legislation might indirectly affect the commerce of the country.” Huron Portland, Cement Co. v. City of Detroit, 362 U.S. 440, 443, 80 S.Ct. 813, 816, 4 L.Ed.2d 852 (1960), quoted in Head v. New Mexico Bd. of Exam, in Optometry, 374 U.S. 424, 428, 83 S.Ct. 1759, 1762, 10 L.Ed.2d 983 (1963). Although regulations adopted under the police power may indirectly impose a burden on interstate commerce, they are not unconstitutional unless they are shown to “discriminate against interstate commerce or operate to disrupt its required uniformity.” Huron Portland Cement Co., 362 U.S. at 448, 80 S.Ct. at 818.

The statutory regulations on optometry pertinent here in effect insulate optometrists from non-health care commercial entities. The purpose of this insulation is to prohibit the formulation of business relationships between optometrists and such entities. The policy supporting such prohibitions is that preservation of an unbroken relationship between the professional and the patient is best achieved by shielding the professional from the risk of control by an unlicensed person or entity. See Cole Vision v. Dept, of Bus. and Prof, 688 So.2d 404, 409 (Fla.Dist.Ct.App.1997).

A review of analogous precedent shows that regulations prohibiting optometrists from practicing optometry as a servant of an unlicensed optical business, though affecting interstate commerce, have been held to be constitutional. See Pearle Optical of Monroeville, Inc. v. Georgia State Bd. of Examr’s in Optometry, 219 Ga. 364, 138 S.E.2d 374 (1963); Sears, Roebuck & Co. v. State Bd. of Optometry, 213 Miss. 710, 57 So.2d 726 (1952); see also 61 Am. Jur.2d Physicians, Surgeons, etc. § 157 (1981); 88 ALR 2d 1290, 1294 § 3[a]. In upholding the constitutionality of a statute prohibiting those “engaged in the business of retailing merchandise” from renting out space for eye examinations, the United States Supreme Court stated:

It seems to us that this regulation ... is an attempt to free the profession, to as great an extent as possible, from all taints of commercialism. It certainly might be easy for an optometrist with space in a retail store to be merely a front for the retail establishment. In any case, the opportunity for that nexus may be too great for safety, if the eye doctor is allowed inside the retail store. Moreover, it may be deemed important to effective regulation that the eye doctor be restricted to geographical locations that reduce the temptations of commercialism. Geographical location may be an important consideration in a legislative program which aims to raise the treatment of the human eye to a strictly professional level. We cannot say that the regulation has no rational relation to that objective and therefore is beyond constitutional bounds.

Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 491, 75 S.Ct. 461, 466, 99 L.Ed. 563 (1955). Our Court has stated similar concerns justifying such regulations when addressing the question of optometrists being employed by corporations:

The logical result would be that corporations and business partnerships might practice law, medicine, dentistry or any other profession by the simple expedient of employing licensed agents. And if this were permitted professional standards would be practically destroyed, and professions requiring special training would be commercialized, to the public detriment. The ethics of any profession is based upon personal or individual responsibility. One who practices a profession is responsible directly to his patient or his client. Hence he cannot properly act in the practice of his vocation as an agent of a corporation or business partnership whose interests in the very nature of the case are commercial in character.

State ex rel. Loser v. National Optical Stores Co., 189 Tenn. 433, 225 S.W.2d 263, 269 (1949).

We conclude that even were the statute to prohibit the practice of optometry in LensCrafters’s stores, it would still be constitutional. Therefore, our construction of the statute is not affected by constitutional concerns. Rather, we are aided by a consideration of the intent of the legislature in its enactment. Indeed, to ascertain and give effect to the intention and purpose of the legislature is the basic rule of statutory construction. Worrall v. Kroger Co., 545 S.W.2d 736 (Tenn.1977). This “[legislative intent or purpose is to be ascertained primarily from the natural and ordinary meaning of the language used, without forced or subtle construction that would limit or extend the meaning of the language.” Carson Creek Vacation Resorts, Inc. v. State Dept, of Revenue, 865 S.W.2d 1, 2 (Tenn.1993). In determining legislative intent, statutes relating to the same subject or sharing a common purpose must be construed together (“in pari materia”) “in order to advance their common purpose or intent.” Carver v. Citizen Utils. Co., 954 S.W.2d 34, 35 (Tenn.1997). Ultimately, we must seek the most “reasonable construction which avoids statutory conflict and provides for harmonious operation of the laws.” Id.; see also Cronin v. Howe, 906 S.W.2d 910, 912 (Tenn.1995).

Here, the natural and ordinary meaning of the language used, “any retail store ... where merchandise is ... offered for sale,” would include ophthalmic superstores such as LensCrafters. The parties maintain, despite the absence of language exempting ophthalmic stores, that the intent of our legislature in enacting the provision before us was to prevent optometrists from practicing in department stores and not stores which specialize in selling ophthalmic supplies.

To support their assertion that applying Tenn.Code Ann. § 63-8-113 to ophthalmic stores would be inconsistent with the statutory scheme considered as a whole, the parties point to sections of our Code which suggest an “overlap” between the work of dispensing opticians and optometrists. The parties note that LensCrafters is a business “in the practice of dispensing opticians” under Tenn.Code Ann. § 63-14-102 and thus is allowed to prepare, adapt, and dispense lenses, spectacles, eye glasses, frames, and optical devices. They further note that opticians are permitted to practice as employees of businesses “in the practice of dispensing opticians” if they are “under the actual and personal supervision of partners, officers, managers or stockholders who possess valid unrevoked licenses as dispensing opticians entitled to practice in [Tennessee].” See Tenn.Code Ann. § 63 — 14—103(d) (1997). Thus, Len-sCrafters may sell ophthalmic lenses and frames and may employ opticians who dispense ophthalmic lenses and frames.

Likewise, the parties note that optometrists are permitted to employ dispensing opticians. Id. § 63-14-105 (“Nothing contained in this chapter shall be construed to prohibit a ... licensed optometrist from employing a licensed dispensing optician as defined in this chapter.”). Moreover, they note that selling glasses has long been a part of the practice of optometry and that the statutory scheme contemplates that optometrists should be allowed to sell ophthalmic lenses and frames. See id. § 63-8-102(12)(D). Thus, like businesses “in the practice of dispensing opticians,” optometrists also may hire opticians to sell and dispense ophthalmic lenses and frames.

The basic thrust of the parties’ argument is that the statutes governing opticians and optometrists are inconsistent because they allow a business “in the practice of dispensing opticians” to hire dispensing opticians and sell ophthalmic products, and they allow an optometrist to hire dispensing opticians and sell ophthalmic products, but they do not allow a business “in the practice of dispensing opticians” to form a business association with an optometrist. The parties contend that the similarities between optometrists and businesses “in the practice of dispensing opticians” render unjustifiable any argument that relationships between such businesses and optometrists would degrade the profession of optometry.

The parties fail, however, to recognize that allowing optometrists to practice in conjunction with businesses “in the practice of dispensing opticians” may involve a compromise of the optometrists’ professional autonomy. Such does not occur when an optometrist operates an independent business which employs opticians to dispense and sell ophthalmic lenses and frames. Cf. Tenn.Code Ann. § 63-8-113(c)(2), (5) (1997 Repl.). Furthermore, there is no statute condoning an optometrist’s professional association with or employment by dispensing opticians. See id. § 63-8-113. The reason for this is that opticians are not health care professionals; they are specifically prohibited from examining eyes or diagnosing, treating, or correcting “any human ailment ... or physical condition.” Id. § 63-14-102(2). Consequently, although optometrists permissibly may employ dispensing opticians, to allow optometrists to form business associations with dispensing opticians-or with businesses “in the practice of dispensing opticians,” such as LensCraft-ers — would be equivalent to allowing optometrists to form business associations with non-health care provider commercial entities. By allowing such business associations, we would risk subordinating the standards of the optometry profession to the influence of commercial interests operated by lay business persons rather than by health care professionals.

In holding that businesses which sell ophthalmic lenses and frames are retail establishments within the meaning of Tenn.Code Ann. § 63^8 — 113(c)(6), we must also address whether this interpretation renders the optometry statute internally inconsistent. Although this argument was not raised by the parties, one might assert that optometrists are allowed to sell lenses and frames within their own practice, Tenn.Code Ann. § 63-8-102(12), and yet by doing so, they violate the prohibition against practicing in a “retail store ... where merchandise is ... offered for sale.” However, we decline to hold that this inconsistency requires that the phrase “retail store or other commercial establishment” be interpreted to exclude stores engaged primarily in the business of selling and dispensing ophthalmic lenses and frames. A more reasonable interpretation is that the phrase “retail and commercial establishments” refers to “non-health care profession” commercial entities. We reach this conclusion in large part by reference to Tenn.Code Ann. § 63 — 8—113(c)(2), which implicitly allows an optometrist to be employed by persons and entities “engaged primarily in health care delivery.” This construction of the statute prevents the “lay control of optometrists,” advances the goal of encouraging a direct line of responsibility from licensed optometrists to their patients, and further allows optometrists to practice in professional associations with other licensed health care professionals who are not only in the practice of health care delivery, but who also sell ophthalmic products.

III. Conclusion

Accordingly, we answer the question certified to us by the United States District Court for the Middle District of Tennessee as follows:

An entity engaged primarily in the business of selling and dispensing ophthalmic lenses and frames is a “retail store or other commercial establishment” within the meaning of Tenn.Code Ann. § 63-8-113(c)(6).

The clerk will transmit this opinion in accordance with Rule 23, Section 8 of the Rules of the Supreme Court.

The costs in this Court are taxed equally between the parties.

      . Tenn.Sup.Ct.R. 23 provides:
      The Supreme Court may, at its discretion, answer questions certified to it by the Supreme Court of the United States, a Court of Appeals of the United States, a District Court of the United States in Tennessee, or a United States Bankruptcy Court in Tennessee. This rule may be invoked when the certifying court determines that, in a proceeding before it, there are questions of law of this state which will be determinative of the cause and as to which it appears to the certifying court there is no controlling precedent in the decisions of the Supreme Court of Tennessee.

      . Under the Tennessee statutes governing opticians, the term "dispensing opticians” is used in two separate contexts that may seem confusing at first glance. The statute (and this opinion) refers to "dispensing opticians” and also to businesses "in the practice of dispensing opticians.” A "dispensing optician” is an optician who engages in the "preparation, adaptation and dispensing of lenses, spectacles, eye glasses and optical devices to the intended user thereof on the written prescription of a physician or optometrist.” Tenn.Code Ann. § 63-14-102 (1997 Repl.). Like other opticians, dispensing opticians may not "examine or exercise eyes,” nor may they "diagnose, treat, correct, relieve, operate, or prescribe for any human ailment.” Id. § 63-14-102(2). However, dispensing opticians are allowed to fit contact lenses "in the presence of and under the direct supervision of a licensed optometrist or ophthalmologist.” Id.

      In turn, the "preparation, adaptation and dispensing of lenses, spectacles, eye glasses,
      and optical devices” is referred to as the "practice of dispensing opticians.” See, e.g., id. § 63-14 — 103(d). Thus, when we refer to businesses "in the practice of dispensing opticians,” we are referring to businesses that perform the services provided by dispensing opticians.

      . Optometrists are allowed to conduct eye examinations "for the purpose of ascertaining defects of vision or muscular anomalies or other abnormal conditions of the eyes,” and they are also allowed to prescribe "ophthalmic lenses or prisms to remedy or relieve defects of vision or muscular anomalies.” Tenn.Code Ann. § 63-8-102(12)(A)(B) (1997 Repl.). Optometrists may also supply, replace, or duplicate an ophthalmic lens or frame. Id. § 63-8-102(12)(D). However, unlike ophthalmologists, optometrists are not licensed physicians. Instead, optometrists in Tennessee, as in other states, are separately licensed and regulated by a Board of Optometry. See Id. § 63-8-112.

      . In reviewing a statute for a possible constitutional infirmity, we are "required to indulge every presumption and resolve every doubt in favor of the constitutionality of the statute.” Petition of Burson, 909 S.W.2d 768, 775 (Tenn. 1995).

      . See generally U.S. Const, art. I, § 8, cl. 3.

      .The laws providing for the establishment of the Tennessee Board of Optometry and the standards governing optometrists are found in Tenn.Code Ann. §§ 63-8-101 through 63-8-133 (1997 & Supp.1999). The statutes provide for the examination and licensing of optometrists, prohibit the, unauthorized practice of optometry, and place restrictions on those licensed to practice. These restrictions include prohibitions against engaging in the practice of optometry as an "employee of any person, or business or organization not engaged primarily in health care delivery,” dividing fees or agreeing to "split or divide the fees received for professional services with any person for bringing or referring a patient,” and the prohibition in this case, practicing "in, or in conjunction with, any retail store or other commercial establishment where merchandise is displayed or offered for sale.” Tenn.Code Ann. §§ 63-8-113(c)(2), (5), & (6); 63-8-120(a)(13) & (14) (1997 Repl.).

      . Notably, Loser was decided in 1949, prior to the enactment of Tenn.Code Ann. § 48-248-101 et seq., which allows the creation of Professional Limited Liability Companies (PLLC), and the enactment of Tenn.Code Ann. § 48-101-601 et seq., which allows the creation of Professional Corporations (PC). These statutes have been widely used by professionals, including optometrists, to allow them to practice as business associations. However, the PLLC and PC statutes have no impact on our decision. The Loser Court’s concern was with the unlicensed practice of learned professions by business associations, a concern which does not apply if the business association is under the exclusive control of licensed professionals. Cf. Loser, 225 S.W.2d at 269. Thus, we do not mean to imply that licensed optometrists should be prohibited from forming PLLCs or PCs under which to conduct their practice.

      . We find that the production and sales of ophthalmic lenses and frames does not constitute the delivery of health care.

      . Another point raised in our discussions concerned the possibility that if an optometrist has prescriptions filled by an independently owned dispensing optician, then the optometrist would be working “in conjunction with" a commercial establishment in violation of the statute. However, because "in conjunction with” is defined to mean being joined together in an association, see Black’s Law Dictionary 765 (6th ed.1990), such business practices would not violate the statute.

        .See California Ass'n of Disp. Opticians v. Pearle Vision, 143 Cal.App.3d 419, 191 Cal.Rptr. 762, 769 (1983).


source: Caselaw Access Project

author: HOLDER, J.,

license: Public Domain

text:
    WASTE CONVERSION SYSTEMS, INC. v. GREENSTONE INDUSTRIES, INC., et al.
    Supreme Court of Tennessee, at Nashville.
    Dec. 20, 2000.

      John Allen Lucas, Knoxville, TN, for the petitioners, Greenstone Industries, Inc. and Greenstone Industries-Atlanta, Inc.
    Kelli Lynne Thompson and Steven G. Anderson, Knoxville, TN, for the respondent, Waste Conversion Systems, Inc.
   OPINION

HOLDER, J.,

delivered the opinion of the court,

in which ANDERSON, C.J., and DROWOTA, BIRCH, and BARKER, JJ., joined.

Pursuant to Rule 23 of the Rules of the Supreme Court of Tennessee, this Court accepted certification of the following questions from the United States District Court for the Eastern District of Tennessee:

(1) Can a parent corporation be held hable under Tenn.Code Ann. § 47-50-109 or under Tennessee law for inducing a subsidiary to breach a contract with another party?
(2) Can a parent corporation be held hable for inducing its subsidiary to breach a contract when the parent was acting on behalf of the subsidiary or acting to further the subsid-iar/s interests? If so, which party bears the burden of pleading and proving whether the parent was acting on behalf of, or to further the interests of, the subsidiary?
(3)For a parent corporation to be held liable for inducing its subsidiary to breach a contract, must the parent induce the breach by wrongful means? If so, what constitutes wrongful means, and which party has the burden of pleading and proving existence of wrongful means?

We hold that a parent corporation has a privilege pursuant to which it can cause a wholly-owned subsidiary to breach a contract without becoming liable for tortiously interfering with a contractual relationship. This privilege, however, is not absolute and may be lost if the parent company acts contrary to the subsidiary’s economic interests or if the parent corporation employs wrongful means in such situations. The burden of proof in both instances is on the plaintiff to prove the defendant parent corporation acted in such a way that its privilege was lost.

Waste Conversion Systems, Inc. (“WCS”) alleges that it entered into a long-term contract to sell waste paper and similar fiber materials to Greenstone Industries-Atlanta, Inc. (“GSI-A”), the wholly-owned subsidiary of Greenstone Industries, Inc. (“GSI”). It also alleged that the contract specified that GSI-A would purchase a minimum quantity of fiber per month at a fixed price. Had the market price of fiber moved higher during the course of the contract, GSI-A would have benefitted by having a guaranteed source of supply at a low fixed price. However, the market price of fiber fell. It is WCS’s contention that, without any legal justification whatsoever, GSI-A refused to accept fiber from WCS so that GSI-A could purchase fiber on the open market at a lower price. The claim against GSI is that it willfully and maliciously induced GSI-A to breach this same contract.

ANALYSIS

The certified questions presented to this Court are ones of first impression. Our answers to these questions are limited to the relationship between a parent corporation and a wholly-owned subsidiary. The extent to which such answers would apply to situations in which a parent corporation owns less than 100 percent of the stock in a subsidiary is a question not presented in this case.

I

The first question certified to this Court is whether a parent corporation can be held liable for inducing a wholly-owned subsidiary to breach a contract. Courts from other jurisdictions hold that a parent corporation has a privilege pursuant to which it can cause a wholly-owned subsidiary corporation to breach a contract without becoming liable for inducement of breach of contract. However, the courts do not portray the privilege as an unqualified one, indicating that it can be lost in one of two ways. In T.P. Leasing Corp. v. Baker Leasing Corp., 293 Ark. 166, 732 S.W.2d 480 (1987), the Supreme Court of Arkansas provided an insightful description of the privilege:

We think the correct rule is that a parent corporation’s privilege permits it to interfere with another’s contractual relations when the contract threatens a present economic interest of its wholly owned subsidiary, absent clear evidence that the parent employed wrongful means or acted with an improper purpose.

Id. at 488.

Other jurisdictions have adopted similar rules. See Oxford Furniture Cos. v. Drexel Heritage Furnishings, Inc., 984 F.2d 1118 (11th Cir.1993) (applying Alabama law); Phil Crowley Steel Corp. v. Sharon Steel Corp., 782 F.2d 781, 783-85 (8th Cir.1986) (applying Missouri law; holding that a parent corporation may interfere with its subsidiary’s contractual relations when the contract threatens a present, existing economic or reputational interest of the subsidiary); Green v. Interstate United Mgmt. Servs. Corp., 748 F.2d 827 (3d Cir.1984) (applying Pennsylvania law); James M. King & Assocs., Inc. v. G.D. Van Wagenen Co., 717 F.Supp. 667 (D.Minn.1989); Bendix Corp. v. Adams, 610 P.2d 24, 29 (Alaska 1980) (“[T]here is general agreement that a corporate shareholder ... would have a sufficient economic interest in a subsidiary corporation to interfere in some of the subsidiary’s business relationships.”); Lachenmaier v. First Bank Sys., Inc., 246 Mont. 26, 803 P.2d 614 (1990); Holloway v. Skinner, 898 S.W.2d 793, 797 (Tex.1995) (“When there is a complete identity of interests [between the party to the contract and the alleged tortfeasor], there can be no interference as a matter of law.”). Summarizing the law in this area, the Court of Appeals for the Second Circuit, in Boulevard Associates v. Sovereign Hotels, Inc., 72 F.3d 1029 (2d Cir.1995), stated that “[cjourts in other states have uniformly found that a parent company does not engage in tortious conduct when it directs its wholly-owned subsidiary to breach a contract that is no longer in the subsidiary’s economic interest to perform.” Id. at 1036 (applying Connecticut law).

The reason for acknowledging the privilege of a parent corporation to interfere in its wholly-owned subsidiary’s contractual relations is the usual identity of interests between the subsidiary and its parent. This relationship between the parent and the subsidiary corporation is illustrated in American Medical International, Inc. v. Giurintano, 821 S.W.2d 331 (Tex.Ct.App.1991), as follows:

[A] parent and a subsidiary are so closely aligned in business interests as to render them, for tortious interference purposes, the same entity. The court thus ignored the fact that the two were separate entities and held that neither could tortiously interfere with the other because their financial interests were identical, since the parent controlled the subsidiary and its profits.

Id. at 336. This illustration corresponds to the analysis by the United States Supreme Court. In Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984), the Court analyzed the relationship between a parent and subsidiary corporation:

A parent and its wholly owned subsidiary have a complete unity of interest. Their objectives are common, not disparate; their general corporate actions are guided or determined not by two separate corporate consciousnesses, but one. They are not unlike a multiple team of horses drawing a vehicle under the control of a single driver. With or without a formal “agreement,” the subsidiary acts for the benefit of the parent, its sole shareholder.... [I]n reality a parent and a wholly owned subsidiary always have a “unity of purpose or a common design.” They share a common purpose whether or not the parent keeps a tight rein over the subsidiary; the parent may assert full control at any moment if the subsidiary fails to act in the parent’s best interests.

467 U.S. at 771-72, 104 S.Ct. at 2741-42. Even though the Court provided this reasoning in the context of an antitrust case, we believe the underlying relationship between the two corporations would be no different in a tortious interference of contract case.

Courts in Tennessee have not addressed this issue directly, but, in an earlier case, we suggested the direction we are now taking. In Forrester v. Stockstill, 869 S.W.2d 328 (Tenn.1994), this Court dealt with the issue of whether an officer, director, or employee of a corporation could be held liable for wrongfully interfering with an at-will employee’s employment relationship with such corporation. Id. at 330-31. In deciding that issue, we adopted principles analogous to the notion that a corporate parent usually has a unity of interest with its wholly-owned subsidiary. Id. at 334-35. In that case, we stated that the wrongful interference with the at-will employment by a third person is actionable only if that person stood as a third party to the employment relationship at the time. Id. at 331. Since a corporation can act only upon the advice of its officers and agents and since important societal interests are served by corporations receiving candid advice from these persons, we held that officers, directors, and employees were immune from claims of intentional interference with employment if they act within the general range of their authority and their actions were substantially motivated by an intent to further the interest of the corporation. Id. at 334-35. The case, in the end, was decided in favor of the officers because there was insufficient proof that the officers were not acting in furtherance of the corporation’s interest. Id. at 335; see also Schlater v. Haynie, 833 S.W.2d 919, 927 (Tenn.Ct.App.1991). Forrester indicates that Tennessee has recognized a privilege against an interference of contract claim when there is unity of interest between the interfering party and the breaching party. Forrester also shows that the claim can be alleged successfully only when the interfering party is a third party not closely tied to the operations of the breaching corporation.

II

The second certified question calls upon us to decide whether a parent corporation can lose immunity for acting contrary to its wholly-owned subsidiary’s interest and where the burden of proof should lie. Courts in other jurisdictions generally acknowledge that acting contrary to the subsidiary’s interest is one of the ways in which a corporate parent loses its privilege to interfere in its subsidiary’s contractual relationship. In Phil Crowley Steel Corp., the Eighth Circuit held that the parent’s privilege was lost because it “interfered with the [subsidiary’s] contracts for an improper purpose when [it] knowingly acted to the detriment of [the subsidiary] and [its] interest[ ] therein.” 782 F.2d at 784. The Second Circuit, in Boulevard Associates, stated that the privilege existed only when the parent directed “the wholly-owned subsidiary to breach a contract that is no longer in the subsidiary’s economic interest to perform.” 72 F.3d at 1036; see also James M. King & Assocs., 717 F.Supp. at 681 (defining the privilege as existing only when the parent acts to protect the subsidiary’s economic interests); T.P. Leasing Corp., 732 S.W.2d at 483 (upholding the parent’s immunity when the contract threatens the present economic interest of its wholly-owned subsidiary). We believe that the same rule should apply in Tennessee. A parent corporation acting contrary to its wholly-owned subsidiary’s economic interests can be considered a third party to its subsidiary’s contractual relationship and can be held liable for tortiously interfering with that relationship.

With respect to the question of who bears the burden of proof, it is a general principle in Tennessee that the burden rests on the party who affirms, not on the party who denies. In Donaldson v. Donaldson, 557 S.W.2d 60 (Tenn.1977), this Court noted that “[w]hile a complaint in a tort action need not contain in minute detail the facts that give rise to the claim, it either must contain ‘direct allegations on every material point necessary to sustain a recovery on any legal theory ... or contain allegations from which an inference may fairly be drawn that evidence on these material points will be introduced at trial.’ ” Id. at 61 (citations omitted). Following the same line of thought, the Court of Appeals commented that “[t]he burden of proof is on the party having the affirmative of the issue, and the burden of proof never shifts. The plaintiff had the burden of proving the elements of her theory of recovery and the facts which she alleged in her complaint.” Winford v. Hawissee Apartment Complex, 812 S.W.2d 293, 295 (Tenn.Ct.App.1991).

In the case before us, the plaintiff, WCS, is the party attempting to recover from a parent corporation that was not a participant in the contract. The plaintiff is the party affirming the facts regarding the parent’s interference with the contract as well as its unlawfulness in doing so. Therefore, once it is established that the subsidiary is wholly-owned by the defendant parent corporation (either as conceded in the plaintiffs complaint or as demonstrated by the defendant), the plaintiff should bear the burden of proof to show that the parent acted detrimentally to the subsidiary’s economic interests. This fact should be demonstrated by the plaintiff in addition to the elements of the cause of action. The majority of our sister jurisdictions also place the burden on plaintiffs in this situation. See, e.g., Advent Sys. Ltd. v. Unisys Corp., 925 F.2d 670, 673 (3d Cir.1991) (applying Pennsylvania law); Phil Crowley Steel Corp., 782 F.2d at 783; American Med. Int'l, 821 S.W.2d at 337; Holloway v. Skinner, 898 S.W.2d 793, 796 (Tex.1995). But see Bendix Corp., 610 P.2d at 29 (Alaska 1980).

Ill

The third certified question asks us to decide whether the loss of the parent corporation’s privilege can be caused by its use of wrongful means and what constitutes wrongful means. Cases from other jurisdictions indicate that a corporate parent loses its privilege to interfere in its wholly-owned subsidiary’s contractual relations if it employs “wrongful means.” The privilege can be lost even if the parent does not act contrary to the subsidiary’s best interests. In Paglin v. Saztec International, Inc., 834 F.Supp. 1184 (W.D.Mo. 1993), the court stated that the privilege exists “so long as the parent does not employ wrongful means or interfere for an improper purpose.” Id. at 1196 (emphasis added). The court in James M. King & Associates, stated that the privilege exists for a corporate parent “provided it does not use wrongful means and acts to protect [its subsidiary’s] economic interests.” 717 F.Supp. at 681 (emphasis added).

In defining the meaning of “wrongful means,” the court in Paglin stated as follows:

In the context of interference with contractual relations, “wrongful means” is defined to include acts which are wrongful in and of themselves, such as “misrepresentations of facts, threats, violence, defamation, trespass, restraint of trade, or any other wrongful act recognized by statute or common law.”

834 F.Supp. at 1196. The Second Circuit in Boulevard Associates also characterized the term in a narrow manner to include “fraud, misrepresentation, intimidation or molestation.” 72 F.3d at 1037. We find the holdings of both of these cases persuasive and believe that a broad definition encompassing both rules should apply in Tennessee. We also believe that the burden of pleading and proving that the defendant parent corporation acted with wrongful means in causing its wholly-owned subsidiary to breach a contract should be on the plaintiff, once it is established that the defendant corporation owns 100 percent of the stock of the subsidiary in question. Such a holding accords with the Tennessee principles discussed above regarding the burden of proof as well as with the majority view of our sister jurisdictions. See Advent Sys. Ltd., 925 F.2d at 673; Phil Crowley Steel Corp., 782 F.2d at 783; American Med. Int'l, 821 S.W.2d at 337; Holloway, 898 S.W.2d at 796. But see Bendix Corp., 610 P.2d at 29.

CONCLUSION

Based on the certified questions posed to this Court, we hold that a parent corporation is privileged to interfere in the contractual relations of a wholly-owned subsidiary and that it is immune from liability for inducing to breach a contract with another, party. This privilege, however, can be lost either by acting contrary to such subsidiary’s economic interests or by using wrongful means. For this purpose, the definition of wrongful means includes fraud, misrepresentation, threats, violence, defamation, trespass, restraint of trade, intimidation, molestation, or any other wrongful act recognized by statute or common law. Once it is established that the defendant corporation owns 100 percent of the stock of the subsidiary in question, the plaintiff bears the burden of proof to demonstrate that the defendant has lost its privilege by acting contrary to its wholly-owned subsidiary’s economic interests or by employing wrongful means in inducing its wholly-owned subsidiary to breach a contract. The clerk will transmit a copy of this opinion in accordance with Tenn.Sup. Ct.R. 23(8). The costs in this Court will be taxed to the respondents, Waste Conversion Systems, Inc.

      . "The Supreme Court may, at its discretion, answer questions of law certified to it by the Supreme Court of the United States, a Court of Appeals of the United States, a District Court of the United States in Tennessee, or a United States Bankruptcy Court in Tennessee. This rule may be invoked when the certifying court determines that, in a proceeding before it, there are questions of law of this state which will be determinative of the cause and as to which it appears to the certifying court there is no controlling precedent in the decisions of the Supreme Court of Tennessee.” Tenn.Sup.Ct.R. 23

      . The decision in Boulevard Associates indicates that the privilege can be lost upon the showing of malice. 72 F.3d at 1037. In Connecticut, unlike the case in Tennessee, malice is not part of the element for procurement of breach of contract. It would not be appropriate in Tennessee to permit the privilege to be lost merely upon a showing of malice because malice is part of the general cause of action and must be shown in all cases. Testerman v. Tragesser, 789 S.W.2d 553, 556-57 (Tenn.Ct.App.1989). If the parent corporation’s privilege were lost upon a showing of malice, the privilege would be illusory.


author: BARKER, J.,

text:
    Larry W. STEWART v. STATE of Tennessee.
    Supreme Court of Tennessee, at Nashville.
    Dec. 20, 2000.

      Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Laura T. Kidwell, Assistant Attorney General, Nashville, TN, for the appellant, State of Tennessee.
    Randy Hillhouse, Lawrenceburg, TN, for the appellee, Larry W. Stewart.
   OPINION

BARKER, J.,

delivered the opinion of the court,

in which ANDERSON, C.J., and DROWOTA, BIRCH, and HOLDER, JJ., joined.

In this case, we determine whether the Tennessee Claims Commission properly asserted jurisdiction pursuant to Tennessee Code Annotated sections 9-8-307(a)(1)(E) and 307(a)(1)(F) for the alleged negligence of a state highway patrol officer in failing to properly control county police authorities at an arrest scene. The Court of Appeals affirmed the Commission’s exercise of jurisdiction, and the State requested permission to appeal on the issue of whether the Claims Commission properly asserted jurisdiction and whether the plaintiff, who stepped into the road before being hit by the truck, was fifty percent (50%) or more at fault for his accident. We hold that the Claims Commission lacked jurisdiction m this case under either section 9-8-307(a)(l)(E) or section 9-8-307(a)(l)(F), and because the Claims Commission possessed no jurisdiction to hear the plaintiffs claims, we decline to reach the issue of whether the plaintiff was more than fifty percent (50%) at fault for his accident. Accordingly, the judgment of the Court of Appeals finding proper jurisdiction is reversed, and the plaintiffs claim against the State is dismissed.

Shortly before midnight on September 20, 1991, Tennessee Highway Patrol Officer Billy Ray was on duty in Hohenwald, Tennessee, when he received a radio dispatch from the Lewis County Sheriffs Department notifying him that a blue 1974 Chevy Nova was speeding on Highway 99. Trooper Ray set up a radar station, and within minutes, he saw the car speed by at about 80 miles per hour. Ray activated his emergency fights and siren, and he stopped the car on an incline heading west away from Hohenwald. Trooper Ray parked his patrol car behind the Nova.

After arresting the driver of the Nova for speeding and driving on a revoked license, Ray placed him in the back seat of his cruiser. In the meantime, two deputies and three reserve deputies from the Lewis County Sheriffs Department arrived in two patrol cars and parked behind Ray’s vehicle on the right shoulder of the highway. Although Trooper Ray had not summoned the other county deputies or otherwise requested their assistance, the deputies stated that they were responding to the same dispatch that was received by Ray.

After the driver of the Nova was arrested, he requested that Ray release the Nova into the custody of the passenger in the car. Trooper Ray complied with the driver’s request after confirming that the passenger had a valid driver’s license and was otherwise competent to drive. As Ray was in the process of releasing the Nova into the custody of the passenger, the Nova slipped out of gear and began to roll backwards down the incline toward Ray’s cruiser. A Lewis County deputy leaped into the car and applied the brake, thereby preventing a collision with Ray’s patrol car.

The passenger then asked the Lewis County deputy, who was still in the car, to steer the Nova to the opposite shoulder of the highway so that she could drive the car to its owner in Hohenwald. In the process of turning the Nova around, the Nova stalled in the middle of the highway and would not restart. Three of the county deputies, including the plaintiff, reserve deputy Larry Stewart, then pushed the stalled car to the other shoulder. After the deputies tried unsuccessfully to restart the car, Trooper Ray permitted the former driver of the car to attempt to start the car, but he was also unsuccessful.

Because the car was now parked on a downward slope, the county deputies, who were unsure as to whether the car would slip out of gear again, decided to roll the car to the bottom of the hill where it could rest safely. Apparently, one of the deputies was steering the ear, one deputy was pushing the car from behind, and the plaintiff was pushing the car somewhere near the driver’s side door. As the car was being pushed to the bottom of the hill, the passenger asked one of the county deputies to take her into Hohenwald to notify the owner of the car of its condition. Trooper Ray then prepared to pull his patrol car in behind the Nova to provide any needed assistance once the owner arrived.

Shortly after the Nova reached the bottom of the incline, the plaintiff started to walk back across the road when he was struck by a pick-up truck traveling into town. The impact knocked the plaintiff almost ninety feet away into a guard rail. Although the plaintiff miraculously survived the impact, he suffered substantial injuries to his head resulting in permanent and irreversible brain damage. The plaintiff also suffered, among other things, a severe fracture to his spine and significant injuries to his kidneys. After the plaintiff was struck, Trooper Ray notified the dispatcher to send an ambulance, and he pulled his patrol car behind the Nova on the other side of the road. In the meantime, county deputies notified the city police department and diverted traffic away from the accident site. Less than six minutes had elapsed from the time of Trooper Ray’s release of the Nova to the plaintiffs accident.

On July 21, 1993, the plaintiff filed his formal claim with the Tennessee Claims Commission alleging that his injuries were proximately caused by Trooper Ray’s negligence in not calling a tow-truck for the disabled car and in failing to properly control traffic around the arrest scene. Eight months later in March of 1994, the State filed a motion to dismiss the claim for failure to allege any grounds of liability within the permissible categories of claims listed in Tennessee Code Annotated section 9-8-307(a)(l). In response, the plaintiff moved to amend his claim to allege that the officer’s alleged negligence fell within three specific categories of liability: (1) negligent care, custody, or control of personal property under section 307(a)(1)(F) based on Ray’s “negligent release of custody of the vehicle” and negligence “in refusing to call a wrecker to remove the car”; (2) negligent operation or maintenance of any motor vehicle under section 307(a)(1)(A) “since the operation of the vehicle by the deputies was under the direction and supervision of the Tennessee Highway Patrol”; and (3) actions resulting in a dangerous condition on state-maintained highways under section 307(a)(l)(J) based on Ray’s “failure to adequately control and maintain an arrest scene.” The Commission granted the plaintiffs motion to amend and denied the State’s motion to dismiss, finding that a sufficient jurisdictional basis had been alleged.

Over four years later, the plaintiffs claim was heard before the Commission. After hearing testimony from several witnesses, the commissioner concluded that the issue of whether Trooper Ray was in control of the arrest scene had to be determined by the “actual facts of what went on out there.” He then concluded that no one was in charge “[bjecause these people all knew each other, and they all deferred to each other.” The commissioner also concluded that Trooper Ray was not negligent in failing to call a tow truck because a general order from the Department of Safety directed Ray to follow the wishes of the driver in disposing of the vehicle. Finally, the commissioner concluded that the car was not in the custody of Trooper Ray at the time of the plaintiffs accident because Ray had previously released custody and control of the car pursuant to the driver’s wishes.

Despite concluding that Trooper Ray had no actual control over the scene and that Ray did not have actual custody of the car at the time of the plaintiffs accident, the commissioner assessed ten percent (10%) fault against the State of Tennessee for the “negligence of Mr. Ray because he could have and ought to have stepped in and taken charge of this situation more strongly than he did.” The commissioner also stated that “[t]he only thing more that Mr. Ray could have done that he ought to have done that he failed to have done ... is to say to a bunch of volunteer deputies in the middle of the night, you all shut up and go sit down.... ” Although he found liability on the part of the State, the commissioner did not specify the provision(s) of section 9-8-307(a)(l) under which he was imposing liability. Finally, the commissioner found the plaintiffs damages to be $300,000, and he assessed the remaining fault as follows: seventy percent (70%) to the driver of the pickup truck which struck the plaintiff; twelve percent (12%) to the plaintiff; and eight percent (8%) to the other Lewis County deputies.

On appeal to the Court of Appeals, the State argued that any negligence of a state trooper in failing to supervise county deputies did not fall within any provision of section 9-8-307(a)(l), and that as such, the Claims Commission was without jurisdiction to assess fault against the State. The intermediate court disagreed, holding that the findings of the commissioner fell within the category of “negligent care, custody, and control of persons” under section - 307(a)(1)(E) and within the category of “negligent care, custody or control of personal property” under section - 307(a)(1)(F). The Court of Appeals also found that the evidence in this case supported the commissioner’s findings that Trooper Ray was negligent, that such negligence was the proximate cause of the plaintiffs injuries, and that the evidence did not preponderate against the commissioner’s apportionment of fault to the plaintiff.

The State then requested permission to appeal to this Court, which was granted on the following three issues: (1) whether the State can be held liable under Tennessee Code Annotated section 9-8-307(a)(l)(E) for the failure of a state trooper to adequately supervise sheriffs deputies at the scene of the arrest; (2) whether the State can be held hable under Tennessee Code Annotated section 9-8-307(a)(l)(F) for personal injuries suffered by a deputy sheriff arising out of a state trooper’s negligent control of personal property (a disabled car); and (3) whether the evidence preponderates against the assessment of twelve percent (12%) fault to the plaintiff. For the reasons given herein, we hold that the Tennessee Claims Commission improperly exercised jurisdiction under either section 9 — 8—307(a)(1)(E) or section 9-8-307(a)(1)(F) to award a monetary claim against the State of Tennessee. Because we hold that the Claims Commission was without jurisdiction in this case, we decline to reach the question of whether the evidence preponderates against the commissioner’s finding that the plaintiff was twelve percent (12%) at fault for his own injuries. Accordingly, we reverse the judgment of the Court of Appeals and dismiss the plaintiffs claim against the State of Tennessee.

JURISDICTION OF THE CLAIMS COMMISSION

It is a well-settled principle of constitutional and statutory law in this state that “[t]he State of Tennessee, as a sovereign, is immune from suit except as it consents to be sued.” Brewington v. Brewington, 215 Tenn. 475, 480, 387 S.W.2d 777, 779 (1965). This doctrine of sovereign immunity “has been a part of the common law of Tennessee for more than a century and [it] provides that suit may not be brought against a governmental entity unless that governmental entity has consented to be sued.” Hawks v. City of Westmoreland, 960 S.W.2d 10,14 (Tenn.1997). Despite this general grant of immunity, however, the courts of this state have frequently recognized that the Tennessee Constitution has modified this rule of absolute sovereign immunity by providing that “[s]uits may be brought against the State in such manner and in such courts as the Legislature may by law direct.” Tenn. Const. art. I, § 17; see also Kirby v. Macon County, 892 S.W.2d 403, 406 (Tenn.1994).

Pursuant to its constitutional power to provide for suits against the state, the legislature created the Tennessee Claims Commission in 1984 to hear and adjudicate certain monetary claims against the State of Tennessee. See Tenn.Code Ann. §§ 9-8-301 to 307 (1999). While the Claims Commission has exclusive jurisdiction to hear claims arising against the state, cf. Tenn.Code Ann. § 20-13-102(a) (1994), this jurisdiction is limited only to those claims specified in Tennessee Code Annotated section 9-8-307(a). If a claim falls outside of the categories specified in section 9-8-307(a), then the state retains its immunity from suit, and a claimant may not seek relief from the state. Cf. Hill v. Beeler, 199 Tenn. 325, 329, 286 S.W.2d 868, 869 (1956) (stating that “except as the Legislature of the State consents there is no jurisdiction in this Board of Claims to entertain suits against the State”).

The courts of this state have traditionally held that any statute granting jurisdiction to hear a claim against the state must be strictly construed, as any such statute is in derogation of the common law rule of sovereign immunity. See, e.g., Norman v. Tennessee State Bd. of Claims, 533 S.W.2d 719, 722 (Tenn.1975) (“We further recognize that the statutory provisions governing the Board of Claims have been strictly construed, in view of the fact that they do represent an encroachment upon the sovereign immunity and upon the assets of the State.”); State ex rel. Allen v. Cook, 171 Tenn. 605, 609, 106 S.W.2d 858, 860 (1937) (“Statutes passed by the Legislature, under the authority of article 1, section 17, of the Constitution, permitting suits against the state, being in derogation of the sovereign’s exemption from suits, must be strictly construed.”). Nevertheless, in 1985, the General Assembly amended section 9-8-307(a) to express its intention as to the jurisdictional reach of the Claims Commission: “It is the intent of the general assembly that the jurisdiction of the claims commission be liberally construed to implement the remedial purposes of this legislation.” Tenn.Code Ann. § 9-8-307(a)(3).

Hence, although we have traditionally given a strict construction to the scope of the Commission’s jurisdiction, we also recognize that our primary goal in interpreting statutes is “to ascertain and give effect to the intention and purpose of the legislature.” Gleaves v. Checker Cab Transit Corp., Inc., 15 S.W.3d 799, 802 (Tenn.2000) (citing Carson Creek Vacation Resorts, Inc. v. State Dep’t of Revenue, 865 S.W.2d 1, 2 (Tenn.1993)). If the legislature intends that its statutes waiving sovereign immunity are to “be liberally construed,” then the courts should generally defer to this expressed intention in cases where the statutory language legitimately admits of various interpretations. A policy of liberal construction of statutes, however, only requires this Court to give “the most favorable view in support of the petitioner’s claim,” Brady v. Reed, 186 Tenn, 556, 563, 212 S.W.2d 378, 381 (1948), and such a policy “does not authorize the amendment, alteration or extension of its provisions beyond [the statute’s] obvious meaning.” Pollard v. Knox County, 886 S.W.2d 759, 760 (Tenn.1994). Moreover, “[w]here a right of action is dependent upon the provisions of a statute ... we are not privileged to create such a right under the guise of ' a liberal interpretation of it.” Hamby v. McDaniel, 559 S.W.2d 774, 777 (Tenn.1977).

Accordingly, when deciding whether a claim is within the proper statutory scope of the Commission’s jurisdiction to hear and decide claims against the State of Tennessee, we will give a liberal construction in favor of jurisdiction, but only so long as (1) the particular grant of jurisdiction is ambiguous and admits of several constructions, and (2) the “most favorable view in support of the petitioner’s claim” is not clearly contrary to the statutory language used by the General Assembly. Cf. Northland Ins. Co. v. State, 33 S.W.3d 727, 730 (Tenn.2000) (“The statute’s liberal construction mandate allows courts to more broadly and expansively interpret the concepts and provisions within its text.”). Furthermore, because issues of statutory construction are questions of law, see Wakefield v. Crawley, 6 S.W.3d 442, 445 (Tenn.1999); Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 599 (Tenn.1999), we review the issues involving the jurisdiction of the Claims Commission de novo without any presumption that the legal determinations of the commissioner were correct. See Northland Ins. Co., 33 S.W.3d at 729; Ardis Mobile Home Park v. State, 910 S.W.2d 863, 865 (Tenn.Ct.App.1995).

Liability for Negligent Care, Custody, and Control of Persons

The Court of Appeals held that the Claims Commission properly exercised jurisdiction in this case pursuant to Tennessee Code Annotated section 9-8-307(a)(1)(E), which authorizes claims against the state for the “[negligent care, custody and control of persons.” According to the intermediate court, the evidence supported the commissioner’s finding that Trooper Ray was negligent in failing “to take sharper, firmer control” of the county deputies at the arrest scene, and that as such, the trooper’s negligence clearly supported jurisdiction under section - 307(a)(1)(E). Before this Court, the State argues that a claim of negligent supervision of county deputies by a state trooper cannot fall within this grant of jurisdiction because there is simply no duty on the part of a state trooper to assume control over local police authorities at the scene of an arrest. We agree with the State.

No provision of section 9-8-307(a)(1) specifically defines under what circumstances the state may be held hable for injuries resulting from the “[negligent care, custody and control of persons.” An examination of the cases dealing with this grant of jurisdiction, though, makes clear that liability may be imposed for injuries to persons confined in penal institutions, residences, or health facilities maintained by the state. See Learue by Learue v. State, 757 S.W.2d 3, 5 (Tenn.Ct.App.1987). It is also well established that liability may be imposed for injuries to third persons caused by those persons for whom the state has responsibility. See Hembree v. State, 925 S.W.2d 513, 517 (Tenn.1996); Cox v. State, 844 S.W.2d 173 (Tenn.Ct.App.1992).

The question in this case, therefore, becomes whether Trooper Ray had a legal duty to exercise reasonable care in the care, custody, and control of county deputies at an arrest scene. The State first argues that unlike other subsections in section -307(a)(1), section -307(a)(1)(E) is worded in the conjunctive with the word “and”; therefore for jurisdiction to exist in this case, the State contends that Trooper Ray must have been negligent in his care of the deputies, in his custody of the deputies, and in his control over the deputies. Cf. Tenn.Code Ann. § 9-8-307(a)(1)(F) (listing the requirements in the disjunctive with the word “or”); -307(a)(1)(G) (listing the requirements in the disjunctive with the word “or”). The State then argues that because the plaintiff does not allege that Trooper Ray had responsibility for the care or custody of the local deputies, the Claims Commission could not have properly exercised jurisdiction.

The State is correct in asserting that statutory phrases separated by the word “and” are usually to be interpreted in the conjunctive. Cf. Tennessee Manufactured Hous. Ass’n v. Metropolitan Gov’t of Nashville, 798 S.W.2d 254, 257 (Tenn.Ct.App.1990) (stating that the word “ ‘and’ is a conjunctive article indicating that the portions of the sentence it connects should be construed together”). Nevertheless, this Court has also recognized that the word “and” can also be construed in the disjunctive where such a construction is necessary to further the intent of the legislature. City of Knoxville v. Gervin, 169 Tenn. 532, 541, 89 S.W.2d 348, 352 (1936) (“The word ‘and’ is frequently construed as meaning ‘or.’ These words are interchangeable in the construction of statutes when necessary to carry out the legislative intent.”). Although we generally presume that the General Assembly purposefully chooses the words used in statutory language, Federal Express Corp. v. Tennessee State Bd. of Equalization, 717 S.W.2d 873, 874 (Tenn.1986), it is difficult to conceive that the legislature intended to deny jurisdiction in cases where negligent control of a person by a state employee resulted in injury, even though the injured person was not actually within the care or custody of the state employee. Liberally construing this statute, therefore, we conclude that the Claims Commission could properly assert jurisdiction under section 9-8-307(a)(l)(E) if Trooper Ray had a legal duty to control local police authorities at an arrest scene— irrespective of whether he had actual care and custody over the deputies — and if he was negligent in the fulfillment of that duty.

From our review of the relevant legal authorities, however, it seems clear that Trooper Ray was under no general legal duty to control local law-enforcement officials at an arrest scene. To be sure, Trooper Ray did have a duty to exercise reasonable care with regard to his own actions at the arrest scene, but the Claims Commission and the Court of Appeals essentially held that Trooper Ray was negligent by not controlling the actions of others at the scene. We have been unable to find any statute or regulation that imposes upon state highway patrol officers the duty or obligation to control local police authorities at an arrest scene, and we are unable to find any statute or regulation that compels county law-enforcement officials to submit to the control of state highway patrol officers at the scene of an arrest.

In addition, we have found no case from any court in this state suggesting that Trooper Ray was under a common-law duty to control or supervise county police authorities at the arrest scene, and we are reluctant to impose such duty in this case without some precedential authority to do so. As we have recognized before, the imposition of a legal duty “reflects society’s contemporary policies and social requirements concerning the right of individuals and the general public to be protected from another’s act or conduct.” McClung v. Delta Square Ltd. Partnership, 937 S.W.2d 891, 894 (Tenn.1996). Plainly stated, Trooper Ray was in no better position than any of the other deputies, including the plaintiff, to prevent the plaintiffs harm. All of the Lewis County deputies were trained in law-enforcement practices, and the plaintiff himself, who had over a year’s experience with the Sheriffs Department before his accident, admitted to receiving forty hours of such training. Moreover, Ray enjoyed no special relationship with the Lewis County deputies that would result in the law imposing a duty upon Ray to control the actions of the deputies. Given these circumstances, we decline to find that “society’s contemporary policies and social requirements” mandate imposing upon Trooper Ray a common-law duty to control the conduct of local police authorities at an arrest scene.

To say that Trooper Ray was under no general legal duty to assert control over the county officers in this case, however, is not to say that Trooper Ray was incapable of assuming such a duty. Because any “determination of the state’s liability in tort shall be based on traditional tort concepts of duty,” Tenn.Code Ann. § 9-8-307(c), the Claims Commission may properly exercise jurisdiction in cases in which a state highway patrol officer has assumed a duty to control local law-enforcement officials and is negligent in the discharge of that assumed duty. Cf. Marr v. Montgomery Elevator Co., 922 S.W.2d 526, 529 (Tenn.Ct.App.1995) (“One who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully.”). As is the case generally with questions of whether a duty has been imposed by law, the question of whether one has assumed a duty to act is also a question of law. See, e.g., Castro v. Brown’s Chicken & Pasta, Inc., 314 Ill.App.3d 542, 247 Ill.Dec. 321, 732 N.E.2d 37, 42 (2000) (“Whether a defendant has voluntarily undertaken a legal duty to a plaintiff seeking to bring a negligence action is a question of law... .”).

From our examination of the undisputed facts in the record, we find that as a matter of law, Trooper Ray did not assume any such duty to control the Lewis County police deputies. First, Trooper Ray did not summon the Lewis County deputies to the arrest scene or otherwise request any assistance from the Lewis County Sheriffs Department. In fact, by the time most of the deputies arrived, the driver of the Nova had already been arrested and placed in the back of Ray’s police cruiser. In addition, it was undisputed that Trooper Ray did not order, instruct, or request that the deputies perform any specific duties, nor did he attempt to prevent the deputies from performing their own tasks during this time. Although the plaintiff argues that all of the witnesses agreed that Trooper Ray was “in control” of the arrest scene as Ray was the first officer on the scene, the actions of the deputies do not confirm this belief. For example, the deputies neither sought Ray’s instruction nor his permission to undertake various tasks, such as moving the Nova to the other side of the road, establishing roadblocks and directing traffic around the accident scene, or requesting further assistance after the accident from the Hohenwald Police Department. Accordingly, because we conclude as a matter of law that Trooper Ray neither possessed nor assumed a legal duty to control local police authorities at the arrest scene, we hold that the Court of Appeals erred in finding that the Claims Commission had jurisdiction over the plaintiffs claim pursuant to Tennessee Code Annotated section 9-8-307(a)(l)(E).

Liability for Negligent Care, Custody, or Control of Personal Property

As an alternative basis for jurisdiction, the Court of Appeals also found that the Claims Commission possessed jurisdiction under section 9-8-307(a)(l)(F), which authorizes claims against the state for the “[n]egligent care, custody or control of personal property.” Although its decision is unclear on this point, the intermediate court seems to have found that Trooper Ray was negligent in failing to call a tow truck to remove the 1974 Nova and in allowing the disabled car to be moved to the other side of the road by the county deputies. Based on our review of the cases interpreting section 307(a)(1)(F), we observe that no court in Tennessee has held that this section permits a claim for personal injury caused by the negligent care, custody, or control of personal property. Rather, virtually every case that has interpreted section - 307(a)(1)(F) has construed that statute to permit claims against the state only when the negligence of a state employee in the care, custody, or control of personal property has resulted in the damage or loss of that particular item of personal property itself. This having been said, however, the precise issue of whether section - 307(a)(1)(F) permits claims for damage to persons caused by the negligent care, custody, or control of personal property was not addressed by any of these opinions, and it remains an issue of first impression in this state.

The plaintiff urges this Court to apply a liberal construction to this subsection and allow claims of personal injury resulting from the negligent care, custody, or control of personal property. Because the language of section 9-8-307(a)(1)(F) is subject to various interpretations, and because the plaintiffs interpretation is not clearly contrary to the language of the statute, a liberal construction of this statute counsels against construing it strictly to apply only to claims for damage to the property itself. Accordingly, we agree with the plaintiff that section 9-8-307(a)(1)(F) does permit claims against the state for damages caused by the negligent care, custody or control of personal property by state employees.

In response, the State argues that such a construction would render inoperative two other specific grants of jurisdiction: section -307(a)(1)(A), which permits claims arising from the “negligent operation or maintenance of any motor vehicle,” and section -307(a)(l)(M), which permits claims arising from the “[njegligent operation of machinery or equipment.” We disagree. In the typical case, the proof needed to satisfy the element of negligent maintenance or operation of automobiles or machinery is much different than the proof needed to establish care, custody, or control of those same items of personal property. Indeed, as can be seen in this case, the element of control simply does not equate to that of operation or maintenance, because while Trooper Ray had control of the Nova prior to his release of the car, he was not involved in its maintenance or operation. Because section -307(a)(1)(F) contemplates a different type of liability than either section -307(a)(1)(A) or section -307(a)(l)(M), we conclude that a liberal construction of section 9-8-307(a)(1)(F) will not render any other provision of the act unnecessary or mere sur-plusage. As such, this Court may liberally construe the jurisdiction of the Claims Commission under this provision and still give effect to the remaining grants of jurisdiction in section 9-8-307(a).

Nevertheless, even applying a liberal construction to section -307(a)(1)(F) to permit claims arising from the negligent control of personal property, we find that jurisdiction is still not present under this provision in this case. As soon as Trooper Ray properly released the vehicle, which was in operating condition at the time of the release, his legal duty as to the care, custody, and control of that vehicle ended. When the vehicle later stalled in the middle of the road, the person to whom the car was released requested that the deputies, not Trooper Ray, assist her in moving the car. It is undisputed that the deputies did not seek permission from Ray in order to move the car, and no one testified that Ray gave any instructions to do so. When the deputies complied with this request, therefore, they alone assumed the duty of reasonable care with regard to the stalled car. Because Trooper Ray did not reas-sume control or custody of the Nova at any point after his proper and lawful release of the car, he cannot be said, as a matter of law, to owe a duty to others to exercise reasonable care, custody, or control of that car. Accordingly, we hold that the Claims Commission was also without jurisdiction to hear and adjudicate the plaintiffs claim under section 9-8-307(a)(1)(F).

ALLOCATION OF FAULT

Because we have concluded that the Claims Commission was without jurisdiction over the plaintiffs claims against the State, the issue of whether the plaintiff was fifty percent (50%) or more at fault for his accident has been rendered moot. Therefore, we reach no determination as to the propriety of the commissioner’s findings in this regard.

CONCLUSION

In summary, we hold that the Tennessee Claims Commission in this case was without jurisdiction to award monetary claims against the State of Tennessee. Because we conclude as a matter of law that Trooper Ray neither possessed nor assumed a legal duty to control local police authorities at the arrest scene, we hold that the Court of Appeals erred in finding jurisdiction under Tennessee Code Annotated section 9-8-307(a)(1)(E), which permits claims against the state for the “[njegligent care, custody, and control of persons.” Moreover, while section 9-B-307(a)(l)(F) applies to claims for damage or loss to personal property, as well as to claims for personal injury caused by negligent control of personal property, the Court of Appeals erred in finding that the Claims Commission possessed jurisdiction under this section as well. Finally, as we have concluded that the Claims Commission was without jurisdiction over the plaintiffs claims, we decline to reach the issue of whether the plaintiff was more than fifty percent (50%) at fault for his accident. Accordingly, the judgment of the Court of Appeals finding that the Claims Commission properly exercised jurisdiction is reversed, and the plaintiffs claim against the State of Tennessee is dismissed.

Costs of this appeal are assessed to the plaintiff/appellee, Larry W. Stewart, for which execution shall issue if necessary.

      . The plaintiff originally filed his claim on June 23, 1992, against the State of Tennessee in the Division of Claims Administration. In this original claim, the plaintiff alleged two separate grounds for relief against the State: (1) that "Trooper Ray was negligent in failing to call a wrecker to tow in the disabled vehicle”; and (2) that Ray was negligent in "failing to warn on-coming traffic of highway obstructions.” The Division of Claims took no action on the claim, and the claim was forwarded to the Tennessee Claims Commission on September 21, 1992.
      In the complaint filed before the Tennessee Claims Commission, the plaintiff alleged that the State "was guilty of the following specific acts of negligence”: (1) "that the State of Tennessee did not properly control the arrest scene”; (2) "that the State of Tennessee should not have instructed the claimant to attempt to move the vehicle in the fashion he was directed to”; (3) "that the State Highway Patrol Officer at the scene did not have proper equipment or manpower available to adequately control and maintain the arrest scene”; and (4) "that the State Highway Patrol Officer was negligent in not calling an authorized wrecker to remove the automobile in question from the roadway.”
      The plaintiff also filed a claim for damages against Lewis County and the Lewis County Sheriffs Department in the Lewis County Circuit Court. This claim against these two defendants was later settled, and the only issue before the Claims Commission was that of the State's alleged negligence.

      . Tennessee Code Annotated section 20-13-102(a) provides that
      [n]o court in the state shall have any power, jurisdiction, or authority to entertain any suit against the state, or against any officer of the state acting by authority of the state, with a view to reach the state, its treasury, funds, or property, and all such suits shall be dismissed as to the state or such officers, on motion, plea, or demurrer of the law officer of the state, or counsel employed for the state.

      . The commissioner found the State liable for Trooper Ray’s actions "because [Ray] could have and ought to have stepped in and taken charge of this situation more strongly than he did.” In this manner, the commissioner conceded that while Trooper Ray was not under a specific duty to act, Ray was negligent in not assuming a duty to act. While we know of no rule of law that compels a person to assume a duty to act that is not otherwise imposed or implied by law, in liberally construing the jurisdiction of the Claims Commission, we nevertheless undertake to determine whether Ray voluntarily assumed a duty to control other deputies at the arrest scene.

      . See also Coghlan v. Beta Theta Pi Fraternity, 133 Idaho 388, 987 P.2d 300, 312 (1999) (“This Court has recognized that 'it is possible to create a duty where one previously did not exist. If one voluntarily undertakes to perform an act, having no prior duty to do so, the duty arises to perform the act in a non-negligent manner.’ Generally, the question whether a duty exists is a question of law.”); Morales v. Fansler, 209 Cal.App.3d 1581, 258 Cal.Rptr. 96, 98 (1989) (”[T]he trial court determined that the only material issue presented was whether the above described [defendants] voluntarily assumed [a] legal duty.... Appellants are in error when they contend the issue of legal duty is a question of fact.”).
      We note that Indiana courts apparently hold that “[although the determination of whether a duty exists is generally a question of law, whether a party assumed a duty and the extent of that duly are questions for the fact-finder.” Sizemore v. Templeton Oil Co., 724 N.E.2d 647, 651 (Ind.Ct.App.2000). Even under this approach, though, the material facts giving rise to an assumed duty in this case are undisputed, and as such, the question of whether a duty to control county deputies was assumed by Trooper Ray in this case remains one of law. See id. ("We may decide whether [the defendant] assumed a duty toward the [plaintiffs] only if there are no genuine issues of material fact.”).

      . Even Trooper Ray admitted that because he was the first on the scene, he was the person who was in control of the arrest. Ray later stated, though, that whatever “control” he possessed disappeared as soon as the arrest was complete and the vehicle was released to a competent driver. Ray testified, and we agree, that after the vehicle was released, the county deputies then assumed control over the former arrest scene by moving the car to the opposite shoulder themselves.

      . In his findings of fact and conclusions of law, the commissioner acknowledged that the officers in this case "all deferred to each other” and that "there wasn’t any[one] in charge out there.” The commissioner also made a specific finding of fact that Trooper Ray was "not in charge that night,” concluding that "[t]he question is not that [Ray] was in charge. He was not in charge.... ”

      . Ahkeen v. Parker, No. W1998-00640-COA-R3CV, 2000 WL 52771 (Tenn.Ct.App. Jan. 10, 2000) (stating that suit under section 307(a)(1)(F) provides the remedy for recovery for deprivation of personal property); Reid v. State, No. 02A01-9807-BC-00191, 1999 WL 528837 (Tenn.Ct.App. July 23, 1999) (stating that section -307(a)(1)(F) "gives the Tennessee Claims Commission jurisdiction over monetary claims against the State arising from the care, custody and control of personal property where the State is negligent in its care, custody and control”); Dean v. Campbell, No. C.A.02A01-9704-CV-00077, 1997 WL 401960 (Tenn.Ct.App. July 17, 1997) (noting that section 9-8-307(a)(1)(F) "has provided adequate procedures to assure the return of items either negligently or intentionally converted” by state prison officials); Clark v. Tennessee Claims Commission, No. 01A01-9212-CH-00482, 1993 WL 286031 (Tenn.Ct.App. July 30, 1993) (claim for negligent loss or conversion of a prisoner’s television converter kit); Spence v. Thomas, No. 01A01-9105-CH-00161, 1991 WL 153220 (Tenn.Ct.App. Aug.14, 1991) (dismissing action filed in chancery court for the recovery of personal property from state employees because Claims Commission has jurisdiction over these claims under section -307(a)(1)(F)). See also Fossett v. State, No. 02A01-9703-BC-00061, 1997 WL 714877 (Tenn.Ct.App. Nov. 18, 1997) (holding that child support payments assigned to the Tennessee Department of Human Services were not "personal property” within the meaning of section - 307(a)(1)(F)).

      . We note that the commissioner was quite clear in his findings of fact and conclusions of law that Trooper Ray was not negligent in failing to call a tow truck. The commissioner found that at the time of the release, the Nova was in working order, and although the car had slipped out of gear, this condition did not prevent the car from being driven. The commissioner also found that Trooper Ray had no discretion to tow a car in this case because the car created no safety hazard and because the release was made according to the wishes of the driver. Therefore, as soon as the commissioner found that Ray neither possessed nor assumed a duty to control the disposition of the car after its proper release, he should have dismissed the claim for lack of subject matter jurisdiction, at least in so far as section 9-8-307(a)(1)(F) provided the basis for such jurisdiction. Accordingly, because Trooper Ray acted with due care in releasing the car, and because Trooper Ray did nothing as a matter of law to reassume custody or control of the vehicle, we find that the Court of Appeals erred in permitting jurisdiction to rest upon Trooper Ray's alleged negligence in failing to tow the Nova.

      . At the hearing of this case in the Claims Commission, the plaintiff argued that section 9-8-307(a)(1)(A) applied to give the Commission jurisdiction to hear these claims. The parties do not argue before this Court that this section applies, and we find no allegations in either the original or amended complaint that Trooper Ray ever actually operated or maintained the 1974 Nova. Therefore, we conclude that the Claims Commission was also without jurisdiction to hear this case under section 9-8-307(a)(1)(A).