Lydranna Lewis v. Shelby County, Tennessee ( 2015 )


Menu:
  •                IN THE COURT OF APPEALS OF TENNESSEE
    AT MEMPHIS
    February 25, 2015 Session
    LYDRANNA LEWIS, ET AL. V. SHELBY COUNTY, TENNESSEE
    Appeal from the Circuit Court for Shelby County
    No. CT00368611      Robert S. Weiss, Judge
    No. W2014-00408-COA-R3-CV – Filed April 17, 2015
    Plaintiffs worked as counselors in a correctional facility that houses male inmates in a
    dorm-like setting in Shelby County. In September 2010, they were attacked and beaten
    by an inmate. Plaintiffs filed an action for negligence against Shelby County under the
    Governmental Tort Liability Act, alleging the County was liable for damages caused by
    the negligent acts and/or omissions of County employees. Plaintiffs alleged that the
    supervising counselor/shift supervisor negligently failed to respond to their “code red”
    calls for help; that he negligently failed to provide adequate staffing and equipment; and
    that he negligently failed to implement the facility directives. The trial court determined
    that the County was entitled to summary judgment under the discretionary function
    exception contained in Tennessee Code Annotated § 29-20-205. We reverse and remand
    the case to the trial court for further proceedings consistent with this opinion.
    Tenn. R. App. P. 3 Appeal: Judgment of the Circuit Court Reversed and
    Remanded
    ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD
    P.J., W.S., and BRANDON O. GIBSON, J., joined.
    Eugene A. Laurenzi, Memphis, Tennessee, for the appellants, Lydranna Lewis and Cathy
    Miller.
    Pablo A. Varela and David E. McKinney, Assistant County Attorneys, Memphis,
    Tennessee, for the appellee, Shelby County, Tennessee.
    MEMORANDUM OPINION1
    Plaintiffs, Lydranna Lewis (“Ms. Lewis”) and Cathy Miller (“Ms. Miller”;
    collectively, “Plaintiffs”), were employed by the Shelby County Department of
    Corrections (“the DOC”) as Counselors at the Adult Offender Center (“the Center”) on
    Mullins Station Road in Memphis. On September 1, 2010, they were assaulted by an
    inmate at the Center, and in August 2011, they filed an action for damages against Shelby
    County (“the County”) and Shelby County Mayor Mark Luttrell pursuant to the
    Governmental Tort Liability Act contained in Tennessee Code Annotated § 29-20-201, et
    seq. (“the GTLA”).
    In their complaint, as amended in December 2014,2 Plaintiffs alleged that they
    sustained injuries as a result of an assault by an inmate while they were working on the
    dormitory level in Building 3 of the Center. They alleged that the Supervising Counselor,
    Willie Hardiman (“Mr. Hardiman”), determined that an insufficient number of counselors
    were present at the Center on the night of the assault; that Mr. Hardiman assigned himself
    to the position of “floater” in Building 3; and that Mr. Hardiman was not present in the
    building when Plaintiffs were assaulted. Plaintiffs further alleged that, in accordance
    with the Center‟s protocol, they radioed Mr. Hardiman for assistance twice prior to the
    assault, but that Mr. Hardiman failed to appear. They additionally alleged that they made
    four “code red” calls for assistance during the assault, but that no one appeared to assist
    them. Plaintiffs asserted that the active assault continued for more than five minutes until
    the Officer assigned to the ground floor, who was “not permitted to leave his post
    unattended,” finally came to their assistance and subdued the inmate.
    Plaintiffs alleged in their complaint that Mr. Hardiman 1) negligently failed to
    respond immediately to their calls for assistance; 2) negligently failed to assign adequate
    staffing at each post in light of inadequate available personnel; and 3) negligently failed
    to implement the DOC‟s directives with respect to responding to requests for assistance
    and code reds, which were designed to prevent foreseeable injuries such as those
    sustained by Plaintiffs. Plaintiffs asserted that Mr. Hardiman‟s negligent, non-
    discretionary acts and/or omissions proximately caused their injuries, and that the County
    was liable for the negligent acts of its employee. Plaintiffs sought damages in the amount
    of $350,000 each.
    1
    Rule 10 of the Rules of the Court of Appeals of Tennessee provides:
    This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the
    actions of the trial court by memorandum opinion when a formal opinion would have no precedential
    value. When a case is decided by memorandum opinion it shall be designated “MEMORANDUM
    OPINION,” shall not be published, and shall not be cited or relied on for any reason in any unrelated case.
    2
    Plaintiffs named only Shelby County as Defendant in their amended complaint.
    2
    The County answered, denied liability, and filed a motion to dismiss or, in the
    alternative, for summary judgment on December 30, 2013. In its motion, the County
    asserted that Plaintiffs had failed to state a claim and that the County‟s immunity from
    suit was not removed under the GTLA. The County further asserted that the assault was
    an independent intervening act by a third-party that “cut[] off [the] proximate causal
    chain to any alleged negligent act or omission[.]” Although the County‟s motion was
    filed as a motion to dismiss or alternatively as one for summary judgment, it was
    supported by a memorandum and amended memorandum, a separate statement of
    undisputed material facts and the affidavits of two employees of the DOC attesting to
    personal knowledge of the events, making it fully compliant with requirements for the
    filing of a summary judgment motion as provided in Rule 56 of the Tennessee Rules of
    Civil Procedure (“Rule 56”). Plaintiffs filed their response in opposition to the County‟s
    motion. The response included, as attached exhibits, the counter- affidavit of a former
    Supervisor who was employed at the Center, select portions of deposition testimony, and
    other records and photographs. Additionally, Plaintiffs filed a separate response to
    defendant‟s statement of material facts and filed Plaintiffs‟ statement of additional facts,
    also as provided for in Rule 56. Following a hearing in January 2014, the trial court
    found, as a matter of law, that the County was immune from suit under the discretionary
    function exception to the GTLA. Plaintiffs filed a timely notice of appeal to this Court.
    Issue Presented
    The sole issue presented by this appeal, as we perceive it, is whether the trial court
    erred by concluding, as a matter of law, that the acts and/or omissions alleged by
    Plaintiffs constitute discretionary functions such that Plaintiffs are barred from seeking
    damages under the GTLA.
    Standard of Review
    Although the County styled its motion alternatively as a motion to dismiss or for
    summary judgment, it was clearly treated both by the parties and the trial court as one for
    summary judgment.3 Our review of a trial court‟s award of summary judgment is de novo
    with no presumption of correctness. We must “review[] the evidence in the light most
    favorable to the nonmoving party and draw[] all reasonable inferences in that party‟s
    favor.” 
    Id. (citation omitted).
    It is well-settled that summary judgment may be granted
    only if the moving party carries his burden to demonstrate that the “pleadings,
    depositions, answers to interrogatories, and admissions on file, together with the
    affidavits . . . show that there is no genuine issue as to any material fact and that the
    moving party is entitled to judgment as a matter of law.” 
    Id. (citations omitted).
    “The
    moving party bears the burden of establishing that summary judgment is appropriate as a
    matter of law, while the court must view the evidence in the light most favorable to the
    nonmoving party and resolve any genuine issues of material fact in its favor.” Harris v.
    Haynes, 
    445 S.W.3d 143
    , 146 (Tenn. 2014) (citation omitted). Because this action was
    3
    filed after July 1, 2011, the summary judgment standard set forth in Tennessee Code
    Annotated § 20–16–101 is applicable to this case. The statute provides:
    In motions for summary judgment in any civil action in Tennessee, the moving
    party who does not bear the burden of proof at trial shall prevail on its motion for
    summary judgment if it:
    (1) Submits affirmative evidence that negates an essential element of the
    nonmoving party‟s claim; or
    (2) Demonstrates to the court that the nonmoving party‟s evidence is
    insufficient to establish an essential element of the nonmoving party‟s
    claim.3
    Tenn. Code Ann. § 20–16–101 (Supp. 2014). The trial court determined that, based on
    those material facts that were not disputed, the County was entitled to a judgment as a
    matter of law because Mr. Hardiman‟s alleged acts, or alleged failure to act, constituted a
    discretionary function under Tennessee Code Annotated § 29-20-205(1). We accordingly
    turn to whether the trial court erred by granting summary judgment on this basis.
    Discussion
    Governmental entities are immune from actions alleging injury resulting from the
    exercise or discharge of a governmental function except as provided in the GTLA.
    Tennessee Code Annotated § 29-20-201(a). The GTLA “permits a suit against a
    governmental entity when an employee of that entity acting within the scope of his
    employment negligently causes injury to another.” Giggers v. Memphis Housing
    Authority, 
    363 S.W.3d 500
    , 507 (Tenn. 2012) (citing Tenn. Code Ann. § 29-20-205).
    Under Tennessee Code Annotated § 29-20-205(1), governmental immunity is not
    removed if the plaintiff‟s alleged injury results from “[t]he exercise or performance or the
    failure to exercise or perform a discretionary function, whether or not the discretion is
    abused[.]” The underlying “rationale behind this „discretionary function exception‟ is to
    prevent courts from questioning decisions of governmental entities that are primarily
    legislative or administrative.” 
    Giggers, 363 S.W.3d at 507
    . “A governmental entity is
    immune from suit for actions involving „planning or policy-making.‟” 
    Id. (quoting Helton
    v. Knox Cnty., 
    922 S.W.2d 877
    , 885 (Tenn. 1996) (quoting Bowers v. City of
    3
    In its January 2014 judgment, the trial court referenced the Center‟s staff roster and stated that the “roster
    indicate[d] that all positions were assigned to an employee except that of a floater in the [Center‟s]
    building 2, which is designated as „collapsed.‟” It also stated that it “reviewed the entire record[,]” which
    we observe contains discovery responses and a number of affidavits.
    4
    Chattanooga, 
    826 S.W.2d 427
    , 430 (Tenn. 1992)). The governmental entity is not
    immune if “the act is merely „operational[.]”‟ 
    Id. (quoting Helton
    , 922 S.W.2d at 885).
    A planning decision generally “involves consideration and debate regarding a
    particular course of action by those charged with formulating plans or policies.” 
    Id. (citation omitted).
    It often “requires a governmental entity to create policies or plans,
    formulate specifications or schedules, allocate resources, or determine priorities.” 
    Id. (citation omitted).
    Such “decisions are not subject to tort liability, and a review of these
    decisions requires judicial restraint.” 
    Id. (citation omitted).
    Operational functions or decisions, on the other hand, “implement „preexisting
    laws, regulations, policies, or standards‟ that are designed to guide the actions of the
    governmental entity.” 
    Id. (quoting Bowers,
    826 S.W.2d at 431). “An operational
    decision requires that the decision-maker act reasonably when implementing preexisting
    policy.” 
    Id. at 507-508
    (citation omitted). “[A]n operational decision does not involve
    the formulation of new policy.” 
    Id. When determining
    whether a decision is discretionary and, therefore, immune
    from an action under the GTLA, the court must consider:
    (1) whether the course of conduct was determined after consideration or debate
    by an individual or group charged with the formulation of plans or policies;
    (2) whether the decision resulted from an assessment of priorities by an
    individual or group responsible for formulating plans or policies; and
    (3) whether the decision is not of the type properly reviewable by courts which
    are typically ill-equipped to investigate and balance numerous factors that
    go into executive or legislative decisions.
    Chase v. City of Memphis, 
    971 S.W.2d 380
    , 384 (Tenn. 1998). If the court answers these
    questions in the affirmative, the affirmative answer generally “militate[s] toward a
    finding that [the] decision was a discretionary function.” 
    Id. Additionally, “„when
    the
    question is not negligence but social wisdom, not due care but political practicability, not
    [reasonableness] but economic expediency[,]‟” it is not the type of decision that is
    “properly reviewable by the courts.” 
    Id. (quoting Peavler
    v. Bd. of Comm’rs, 
    528 N.E.2d 40
    , 46 (Ind. 1988) (quoting Blessing v. United States, 
    447 F. Supp. 1160
    , 1170 (E.D.
    Penn. 1978))). In such cases, “[t]ort law simply furnishes an inadequate crucible for
    testing the merits of social, political, or economic decisions.” 
    Id. (quoting id.)
    Operational decisions, on the other hand, “may be generally classified as ad hoc
    decisions made by an individual or group not charged with the development of planning
    or policy decisions that stem from a determination based on preexisting laws, regulations,
    5
    policies, or standards.” 
    Id. “„[T]he discretionary
    function exception [will] not apply to a
    claim that government employees failed to comply with regulations or policies designed
    to guide their actions in a particular situation.‟” Bowers v. City of Chattanooga, 
    826 S.W.2d 427
    , 431 (Tenn. 1992) (quoting Aslakson v. United States, 
    790 F.2d 688
    , 692 (8th
    Cir. 1986)).
    The trial court in this case concluded that the County was immune from suit under
    the discretionary function exception to the GTLA upon determining that the County‟s
    staffing assignments for the Center constitute a discretionary function. In its January
    2014 order, the trial court stated:
    1. Plaintiffs‟ amended complaint alleges that supervisory staff at the Shelby
    County Adult Offender Center (AOC) was negligent in failing to assign
    adequate staffing at each designated post as necessary to ensure plaintiff‟s
    safety and by failing to exercise that degree of care and caution as required
    of a reasonably prudent person under the same or similar circumstances by
    responding immediately to Plaintiffs‟ call for assistance from a supervisor;
    as required by AOC policies and procedures.
    2. Plaintiffs‟ response to Defendant‟s Motion to Dismiss and/or for
    Summary Judgment, attached the staff roster of September 1, 2010.
    3. The staff roster indicates that all positions were assigned to an employee
    except that of a floater post in the AOC building 2, which is designated as
    “collapsed.”
    4. Tenn. Code Ann. § 29-20-205(1) states in pertinent part, “Immunity from
    suit of all governmental entities is removed for injury proximately caused
    by a negligent act or omission of any employee within the scope of his
    employment except if the injury arises out of: (1) The exercise or
    performance or the failure to exercise or perform a discretionary function,
    whether or not the discretion is abused.”
    5. Decisions involving scheduling of employees to available posts, and the
    creation of shift rosters at the AOC, which is part of the Shelby County
    Division of Corrections, is a discretionary function as contemplated by
    Tenn. Code Ann. § 29-20-205(1).
    6. Shelby County Government is entitled to immunity from suit pursuant to
    Tenn. Code Ann. § 29-20-205(1).
    We begin our review of the trial court‟s judgment by observing that it based its
    decision entirely on the fact that the staff roster of September 10, 2010, that was attached
    6
    as an exhibit to Plaintiff‟s response to Defendant‟s Motion to Dismiss and/or for
    Summary Judgment, “indicates that all positions were assigned to an employee except
    that of a floater post in the AOC building 2, which is designated as „collapsed.4‟” The
    trial court then found that decisions related to the staffing roster “involving scheduling of
    employees to available posts” are a discretionary function “as contemplated by Tenn.
    Code Ann. §29-20-205(1).” However, the trial court made no findings with respect to
    whether the decision to “collapse” a position reflects a policy decision made at the
    administrative/legislative level or an operational decision made by the shift supervisor or
    some other non-administrative/non-legislative level employee. This unresolved question
    of fact makes summary judgment inappropriate.
    Additionally, the Plaintiffs, in their complaint, did not limit their allegations to
    questions of staffing. Rather, they asserted that Mr. Hardiman negligently “failed to
    exercise that degree of care as required … by responding immediately to Plaintiffs‟ call
    for assistance from a supervisor; as required by AOC policies and procedures” and
    “failed to implement Defendant‟s own directives pertaining to requesting assistance in
    situations like Plaintiff[s] found themselves in, to wit, calling a „code red[.]‟” The trial
    court‟s order does not address whether these two claims were in the nature of planning or
    operational decisions. Instead, the trial court only determined that “decisions involving
    scheduling of employees to available posts, and the creation of shift rosters at the AOC”
    were discretionary functions. Because the trial court did not specifically address
    Plaintiffs‟ claims, summary judgment was inappropriate.
    In its brief, the County asserts that summary judgment is alternatively appropriate
    under the reasoning of the Tennessee Supreme Court in King v. Anderson County. The
    County submits, “the attack by [the] inmate . . .was sufficient, by itself, to cause injury to
    Appellants, the attack was not reasonably foreseeable by Appellee, and there is no nexus
    between the attack, by a non-violent inmate, and the alleged negligent failure to properly
    4
    staff, implement policies, or a delayed response time.” The County relies on King for
    the proposition that the attack on Plaintiffs was not reasonably foreseeable. 4
    King v. Anderson County involved an assault of inmate Kenneth King (“Mr.
    King”) by inmate Brandon Paul (“Mr. Paul”). King v. Anderson County, 
    419 S.W.3d 232
    (Tenn. 2013). The appeal in that case, unlike the current appeal, arose from a trial on the
    merits in which the record contained “no evidence that Anderson County Detention
    Facility officials knew or should have known that Mr. King would become the victim of
    4
    Contained in the record is the affidavit of Harvey Tharp (“Mr. Tharp”). Mr. Tharp was employed as a
    supervisor with the AOC from February 1991 until June 2010. In his affidavit, Mr. Tharp defines the
    term “collapse” as follows: “The Adult Offender Center was understaffed by two Counselors on
    September 1, 2010. The Shift Schedule for September 1, 2010 indicates that one post was vacant due to a
    “post collapse”. A “post collapse” indicates a failure to assign a Counselor to the post…”
    7
    an attack by his cellmates after he was returned to his cell to await pretrial release.” 
    Id. at 250.
    The King court noted:
    Mr. King had spent eight hours in the same cell, with the same detainees,
    during the previous night without incident, even though he had at that time
    informed his cellmates that drugs had been taken from him by police when
    he was arrested. He did not report any attempt to search him at that time,
    nor did Mr. King ever complain to prison authorities that he felt threatened
    by any of his cellmates. Mr. King‟s alleged assailant, Mr. Paul, had no
    record of institutional violence, despite the fact that he had been in custody
    since July of that year. Although it is understandable that Mr. King would
    be upset about his delayed release, it was not foreseeable or probable that
    he would choose to curse or “[go] off” at a cellmate after returning to his
    cell, especially given his own admission that he had felt “scared” of his
    fellow inmates upon entering the cell for the first time. As the trial court
    itself observed, Mr. King was the victim of a “spur of the moment assault”
    of which no one had any notice. No prison official could have predicted
    the assault, especially given the lack of any incident or threat during Mr.
    King‟s previous night in the same company. Because the record contains
    no proof that the prison officials knew of or had reason to anticipate an
    attack on Mr. King, we conclude that the evidence preponderates against
    the trial court‟s finding of foreseeability and, therefore, that proximate
    cause cannot be established in this case.
    
    Id. The court
    held:
    Thus, we must conclude that although the assault upon Mr. King was a
    possibility, given that penal institutions house dangerous people convicted
    or charged with crimes, sometimes extremely serious or violent crimes, the
    evidence in the record preponderates against the finding that the assault
    was a reasonably foreseeable probability, which is the standard for
    assessing proximate cause necessary to impose liability in a negligence
    case.
    
    Id. (emphasis added).
    We cannot agree with the County‟s conclusion that King stands for
    the proposition that the attack of DOC personnel by an inmate, standing alone, is
    sufficient to break the chain of causation in this case. First, King concerned an attack of
    one inmate by another inmate that occurred after the inmates had shared a cell for more
    than eight hours. Second, the King court reached its conclusion after the facts had been
    determined by the finder of fact following a trial on the merits. The current appeal arises
    from an award of summary judgment in which the facts regarding Plaintiffs‟ allegations
    of negligence are disputed. Therefore, summary judgment in this case is inappropriate.
    8
    Holding
    In light of the foregoing, we reverse the trial court‟s judgment granting the
    County‟s motion to dismiss or, in the alternative, motion for summary judgment. Costs
    on appeal are taxed to the Appellee, Shelby County. This matter is remanded to the trial
    court for further proceedings that are necessary and consistent with this Opinion.
    _________________________________
    ARNOLD B. GOLDIN, JUDGE
    9