Penny Lawson v. Hawkins County, TN ( 2021 )

07/14/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
June 1, 2021 Session
PENNY LAWSON, ET AL. v. HAWKINS COUNTY, TN, ET AL.
Appeal from the Circuit Court for Hawkins County
No. 20-CV-37 Alex E. Pearson, Judge
No. E2020-01529-COA-R3-CV
This appeal arises from litigation concerning a fatal road accident. Steven W. Lawson
(“Decedent”), by and through his wife, Penny Lawson, and on behalf of Corey Lawson,
Decedent’s child (“Plaintiffs,” collectively), sued the Hawkins County Emergency
Communications District Board (“ECD-911”), Hawkins County, Tennessee and Hawkins
County Emergency Management Agency (“the EMA”) (“Defendants,” collectively) in the
Circuit Court for Hawkins County (“the Trial Court”) alleging negligence, gross
negligence, and recklessness in Defendants’ response to a road washout that led to
Decedent’s death. Plaintiffs specifically alleged nepotism in Defendants’ hiring practices
and a failure to train. Defendants filed motions for judgment on the pleadings, which the
Trial Court granted partly on grounds that claims of recklessness could not proceed against
the Defendant entities under the Governmental Tort Liability Act (“the GTLA”). Plaintiffs
appeal. We hold that Plaintiffs could, in fact, proceed with their claims of recklessness and
gross negligence under the GTLA, and the facts pled by Plaintiffs were sufficient to state
claims based upon recklessness and gross negligence. We hold further that, based on the
facts alleged at this stage, the third special duty exception to the public duty doctrine applies
so as to remove Defendants’ immunity. We reverse the judgment of the Trial Court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;
Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which THOMAS R.
FRIERSON, II, and KRISTI M. DAVIS, JJ., joined.
Thomas J. Seeley, III, and Brett N. Mayes, Johnson City, Tennessee, for the appellants,
Penny Lawson and Corey Lawson.
Russell W. Adkins, Kingsport, Tennessee, for the appellee, Hawkins County Emergency
Communications District Board.
Jeffrey M. Ward, Greeneville, Tennessee, for the appellees, Hawkins County, Tennessee
and Hawkins County Emergency Management Agency.
OPINION
Background
In February 2020, Plaintiffs sued Defendants in the Trial Court. Certain individual
public officials also were sued but later were dismissed for redundancy.1 Plaintiffs’ lawsuit
stemmed from Decedent’s February 21, 2019 death in a motor vehicle accident. Decedent
died from injuries sustained while driving on a state highway that washed out in a storm.
In their complaint, Plaintiffs alleged that Decedent’s death was caused by “Defendants’
gross negligence, recklessness, and failure to take immediate and direct action in response
to the substantial risk of catastrophic injury and/or death due to the collapse of Highway
70 on Clinch Mountain.”
As to the details of the incident, Plaintiffs alleged the following: that Decedent was
rounding a switchback curve on the mountain when, at 1:45 a.m., he drove into a chasm
where Highway 70 had been; that Johnny Mabe, another motorist travelling behind
Decedent, was injured when he too drove into the chasm; that earlier, at 12:58 a.m.,
motorist Alexis Raebel contacted ECD-911 to advise that trees were down on the highway
and the highway was cut off; specifically, that “if someone’s going up the mountain …
they’re going to go off the road”; that Dispatcher Dylan Wood “stacked” the call since the
would-be responding officer Michael Godsey was already on a vehicle stop; that Godsey
arrived at the scene before 1:13 a.m.; that Godsey called ECD-911 and “casually” discussed
the situation with Dispatcher Caitlin Smith; no action was taken then to shut down the
highway or undertake any other preventative measures.
Continuing our review of Plaintiffs’ allegations, Plaintiffs stated that at 1:21 a.m.,
Dispatcher Smith called Danny Jones of the Tennessee Department of Transportation; that
ECD-911 Director Murrell withheld this recording; that at 1:22 a.m., Dispatcher Smith
called then-Director Gary Murrell of the EMA to advise him of the situation; that Murrell
advised Dispatcher Smith to contact the Holston Electric Company regarding the downed
power pole; this recording, too, has been withheld by ECD-911; Director Gary Murrell
arrived on the scene at 3:07 a.m. that morning; that at 1:30 a.m., Dispatcher Smith called
Holston Electric Company; that at 1:46 a.m., Officer Godsey contacted ECD-911 to advise
that a vehicle hit a rock embankment and flipped over multiple times down the mountain.
Only shortly thereafter did any official consider closing the highway.
1
These officials were Ronnie Lawson, Sheriff of Hawkins County, Tennessee; Rita “Gay” Murrell,
Director of ECD-911; and Jamie Miller, Director of the EMA, all sued in their official capacities. The
dismissal of these individual defendants is not at issue on appeal.
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Certain exhibits were attached to Plaintiffs’ complaint. One exhibit was a transcript
of citizen Alexis Raebel’s call to 911 Dispatcher Dylan Wood. It reads as follows:
Dispatcher: “911.”
Caller: “Yeah, is this 911 for Rogersville?”
Dispatcher: “It’s Hawkins County, yes.”
Caller: “Okay, uh, I’m on a phone that doesn’t have minutes and this is the
only way I could call … I live across Eidson and there are two trees
(inaudible) the mountain and half the road is cut off.”
Dispatcher: “Okay where at on, are you talking about 70?”
Caller: “Yes, on 70, when you’re going up Clinch mountain.”
Dispatcher: “Okay, are you talking about like after Cave Springs, er?”
Caller: “Yes.”
Dispatcher: “Okay, like where exactly, I mean is it like just past Cave
Springs? Or is it all the way through the S curves, er?”
Caller: “You just have to like go up the mountain …. There’s two trees down
when you, (sigh)…”
Dispatcher: “Okay, what’s your, what’s your name?”
Caller: “My name is Alexis Raebel, R-a-e-b-e-l.”
Dispatcher: “Umkay, is it blocking the whole road?”
Caller: “Uh yeah, I almost went off of it, but, cause you can’t really tell, but
if somebody’s going up the mountain, going like, towards town, they’re
going to go off the road.”
Dispatcher: “Okay and what is your phone number?”
Caller: “[redacted]
Dispatcher: “Alrighty, I’ll send someone out that way, ok.”
Caller: “Okay, thank you.”
Dispatcher: “You’re welcome.”
Another exhibit attached to Plaintiffs’ complaint was a transcript of the phone
conversation between Officer Michael Godsey and 911 Dispatcher Caitlin Smith. It reads
as follows:
Dispatcher (0:02): “Central Dispatch.”
Officer: “Hey can you hear me?”
Dispatcher: “Hey, I can hear you.”
Officer: “Okay, uh, might want to let the highway department know that like
this, this mudslide is still, like, it’s still sliding, uh …”
Dispatcher (0:11): “It is still sliding?”
Officer (0:17): “Yeah, it’s still, I mean it’s slowly sliding but it’s pushin trees,
like that’s already fell, like down the, down the road, but it’s pushing it slow
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and there’s uh power pole here that’s in the middle of the mudslide and we’re
just waiting on it to come down here in just a minute, cause it’s, it’s pushing
the pole on down and the pole’s swinging, so … I don’t know if Holston
Electric is gonna have to take care of that first, er, what’s gonna happen on
this.”
Dispatcher (0:45): “Oh God, is it like a big mudslide? Is it pretty big, er?”
Officer (0:48): “Yeah, yeah, it’s a big mudslide, I mean it’s not, it’s, it’s filled
the bottom of this ditch but it’s not up on the road. But we don’t know if the
mudslide is come across the mountain up top over there, if we’re gonna have
to like, we’re gonna have to wait until the trees get cleared out before we can
drive up and see if, if, if it’s coming on down the mountain.”
Dispatcher (1:10): “Okay, we just notified Gary (Director of Hawkins
County EMA). I don’t think he’s coming out. We have proof of protocol,
but it’s TDOT and they’re out so they should be on the scene with you just
any time and Dylan got ahold of Holston Electric, so as soon as they can
make it out there.”
Officer (1:25): “Okay, yeah, we’re just waitin, I mean it’s still, I mean it’s
sliding just like crackin and knockin trees down on the side of the road, here.”
Dispatcher (1:33): “Oh my gosh. If it was to get like bad and up in the road,
just let us know for sure if it gets pretty bad cause … we’ll still have to come
out and notify everybody and do his thing that he does, um.”
Officer (1:46): “It’s a, it’s a deep, deep ditch and this mud slid all the way
down into the side of this ditch and, it’s like, um, I mean, it’s not going to get
up on the road but it’s sliding down (inaudible) trees coming on down the
ditch, it’s I mean, uh …”
Dispatcher (2:02): “Yeaaa, it’s pretty big if it’s pushin’ trees down, you know
it?”
Officer (2:05): “Well it’s, it’s pushed the trees down, the tree that’s all the
way across the road, it’s pushin it dow-, it’s pushin’ it down the guardrail.”
Dispatcher (2:12): “Oh my Goshhh. You know one of these days, like the
whole mountain is just gon’ come down I feel like.”
Officer (2:18): “Well, it’s crazy that we (inaudible) were watching that power
pole slide.”
Dispatcher (2:23): “That is wild but they should be out there with you just
any time. I talked to Danny (TDOT) and he’s up and moving so he should
be pulling in I’d imagine anytime. Cause they had went down to Caney
Creek before and Dylan called Holston Electric so they should be on out too.”
Officer (2:39): “Alright, I appreciate it.”
Dispatcher (2:39): “Well, it’s no problem. If you need anything, just holler
at us.”
Officer (2:43): “Well, we are just going to wait and see if anything else falls
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here.”
Dispatcher (2:45): “Alright well don’t let a rock fall on you or your car. (both
laugh)”
Officer: “See ya.”
Dispatcher: “Alright bye.”
Plaintiffs asserted that Defendants’ governmental immunity was removed, and that
Defendants and their employees had engaged in reckless and grossly negligent conduct:
25. Mr. Lawson was killed due to the reckless and grossly
negligent conduct of all Defendants and their employees or agents as named
herein, including but not limited to:
a. Deputy Godsey’s blatant failure to follow any protocol in
assessing the situation, discussing options to close the Highway to
prevent accidents, failure to communicate the danger to other
motorists, conscious disregard to the unjustifiable and substantial risk
of a vehicle falling off the mountain due to the collapse, and failure to
take any action to stop traffic;
b. ECD-911 employees’ failure or blatant refusal to obtain more
information, make additional dispatch calls to any fire department or
other emergency personnel to report the situation on Highway 70, or
follow proper protocol regarding unsafe road conditions.
c. EMA employees’ or agents’ failure or blatant refusal to take
any action at all other than to communicate a downed utility pole to
the Utility Company, obtain any additional information, respond to
the scene, assess the situation, or take any helpful action whatsoever.
***
27. All Defendants were on notice and consciously aware that
Highway 70 had an active mudslide, severe road hazard, trees in the road and
a power pole was destabilized due to the mudslide for almost an hour before
any attempt, whatsoever, was made to close Highway 70.
***
30. This clear deviation from the standard of care that any ordinary
person would exercise under the circumstances—said action being
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performed by an ordinary citizen forty-five minutes earlier despite no law
enforcement or emergency dispatch training of any kind—constitutes
reckless conduct and gross negligence on the part of the Defendants’
employees.
***
32. The aforementioned actions constitute gross negligence and
reckless behavior on the part of the Defendants and their employees because
of their extreme dereliction in the operation of the Defendants’ emergency
procedures and protocols, and said neglect substantially and unjustifiably
increased the risk that harm would occur to any motorist traveling
southbound on Highway 70. Defendants’ actions, through their employees
and agents, was done with utter unconcern for the safety of these motorists
and with reckless disregard for the rights, safety, and livelihood of others
such as to amount to conscious indifference to the clear risk that would be
confirmed later when Mr. Lawson and Mr. Mabe’s vehicles fell off the
mountain.
33. The aforementioned dereliction of duty on the part of the
Defendants’ employees, officers and agents was the result of, in part (but not
limited to):
a. Blatant and rampant nepotism amongst the Defendants;
b. Failure to adequately train employees regarding proper
protocol and procedures;
c. Failure to maintain adequate or proper protocols and
procedures to deal with emergency situations such as the situation that
occurred on February 21, 2019; and/or
d. Failure to maintain proper licensing under state law and
regulations.
34. Immunity for all Defendants has been removed for this action
pursuant to the provisions of T.C.A. § 29-20-203, -205, -108, etc., and said
negligence constitutes negligence per se under these and other relevant
statutes.
Plaintiffs concluded by asserting damages for the pecuniary value of Decedent’s
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life; Decedent’s physical pain and suffering; emotional/mental pain and suffering; loss of
enjoyment of life; Plaintiffs’ loss of consortium; property damages; and funeral and burial
expenses.
In March 2020, ECD-911 filed an answer to Plaintiffs’ complaint. In its answer,
ECD-911 asserted as defenses the public duty doctrine and the doctrine of governmental
immunity. ECD-911 stated that “[Decedent’s] death was unavoidable. The mudslide
referenced in the Complaint was caused by an Act of God, and not by any acts or omissions
of [ECD-911].” Hawkins County and the EMA filed their own separate but similar
answer. In June 2020, ECD-911 filed a motion for judgment on the pleadings. Hawkins
County and the EMA also filed their own motion for judgment on the pleadings. Both
argued for immunity from Plaintiffs’ lawsuit on the basis of the GTLA and the public duty
doctrine.
In September 2020, the Trial Court heard Defendants’ motions for judgment on the
pleadings. In its October 2020 final judgment, the Trial Court granted Defendants’ motions
and dismissed Plaintiffs’ lawsuit. The Trial Court incorporated in its final judgment its
oral ruling wherein it stated as follows, in part:
The Court looked closely at the complaint that was filed in this
particular case. The Court believes that considering all the factual assertions
as true and original inferences that may be drawn therefrom, the complaint
does make out a cause of action or a claim, I should say, for recklessness. If
you take all those facts and circumstances and you review that, I do believe
that, whether or not anybody’s conduct is reckless or not, certainly under the
standard required for these motions to be granted on pleas, that they could
make out a claim for recklessness.
When I looked at the Governmental Tort Liability Act and I would
read that in connection with the two Davidson County cases that I cited a few
minutes ago [Hughes v. Metro. Gov’t of Nashville and Davidson Cnty., 340
S.W.3d 352; Harp v. Metro Gov’t of Nashville, 2014 WL 265713], it’s this
Court’s belief that reckless conduct just cannot move forward under the
G.T.L.A. And, so, since reckless conduct cannot move forward -- and I’m
not saying I agree or disagree with that particular provision, I’m merely
saying as a matter of law or a legal matter, it doesn’t appear to me that it can
move forward under the G.T.L.A. with reckless conduct.
So, since that is the case, that brings us down to the negligence claim
and certainly the complaint asserts a negligence claim. I didn’t mean to
suggest otherwise. Certainly it does. So those do come under the
Governmental Tort Liability Act. However, then we review that in light of
the common law and the common law doctrine and the duty owed to the
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community at large, in that particular situation here I think that all these
individuals do have a duty to the public at large, and, again, I’m not saying I
agree or disagree with the common law doctrine, but it certainly appears to
this Court under the circumstances that a duty was owed to the public at large
instead of to a specific individual. I can’t find any basis in which anybody
undertook to do any special duty or anything of that nature. I just don’t see
that in this case.
So with that being the circumstance, I believe that also prevents the
plaintiffs from moving forward under the Governmental Tort Liability Act
because -- I mean they can move forward under that, but then they’re barred
from recovery under the common law.…
Plaintiffs timely appealed to this Court.
Discussion
We restate and consolidate the issues raised on appeal into the following three
dispositive issues: 1) whether the Trial Court erred in ruling that the GTLA precludes
recovery against governmental entities for injuries proximately caused by the grossly
negligent or reckless conduct of their employees within the scope of their employment
under Tenn. Code Ann. § 29-20-205; 2) whether the Trial Court erred in finding that the
facts pled were sufficient to state a claim based upon recklessness; and, 3) whether the Trial
Court erred in its analysis of Plaintiffs’ claims under the common law defense of the public
duty doctrine and the special duty exception.
This case was resolved below on motions for judgment on the pleadings. “[A]
motion for judgment on the pleadings is ‘in effect a motion to dismiss for failure to state a
claim upon which relief can be granted.’ ” King v. Betts, 354 S.W.3d 691, 709 (Tenn. 2011)
(citations omitted). Our Supreme Court has instructed:
In reviewing a trial court’s ruling on a motion for judgment on the pleadings,
we must accept as true “all well-pleaded facts and all reasonable inferences
drawn therefrom” alleged by the party opposing the motion. McClenahan v.
Cooley, 806 S.W.2d 767, 769 (Tenn. 1991). In addition, “[c]onclusions of
law are not admitted nor should judgment on the pleadings be granted unless
the moving party is clearly entitled to judgment.” Id.Cherokee Country Club, Inc. v. City of Knoxville, 152 S.W.3d 466, 470 (Tenn. 2004). “We
should uphold granting the motion only when it appears that the plaintiff can prove no set
of facts in support of a claim that will entitle him or her to relief.” Young v. Barrow, 130
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S.W.3d 59, 63 (Tenn. Ct. App. 2003). Our standard of review is de novo with no
presumption of correctness as to the Trial Court’s decision. Id.We first address whether the Trial Court erred in ruling that the GTLA precludes
recovery against governmental entities for injuries proximately caused by the grossly
negligent or reckless conduct of their employees within the scope of their employment
under Tenn. Code Ann. § 29-20-205. The GTLA, enacted in 1973, provides for the
removal of governmental immunity for tortious conduct by governmental actors in certain
circumstances. “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 …” Tenn. Code Ann. § 29-20-205 (2012). This Court has stated:
The GTLA is premised on the constitutional rule that suits against the
State and governmental entities “may only be brought in such manner and
‘in such courts as the Legislature may by law direct.’ ” Vaughn v. City of
Tullahoma, No. M2015-02441-COA-R3-CV, 2017 WL 3149602, at *1
(Tenn. Ct. App. July 21, 2017) (quoting Tenn. Const. art. I, § 17). Provisions
of the GTLA are subject to strict construction because the Act is in
contravention of the common-law doctrine of sovereign immunity. Moreno
v. City of Clarksville, 479 S.W.3d 795, 809-10 (Tenn. 2015). Therefore, in
cases brought pursuant to the GTLA, “[b]efore proceeding in an action
against a governmental entity, the threshold issue of waiver of governmental
immunity must be addressed.” Brown v. Hamilton Cty., 126 S.W.3d 43, 46
(Tenn. Ct. App. 2003).
Lawson v. Maryville City Schools, No. E2019-02194-COA-R3-CV, 2020 WL 7391151, at
*3 (Tenn. Ct. App. Dec. 14, 2020), no appl. perm. appeal filed. If governmental immunity
is removed pursuant to the GTLA, courts proceed to another step in their analysis. We
have explained that “[i]f the GTLA removes immunity, then the common law rule of
immunity under the Public Duty Doctrine provides an additional layer of defense and is
the next level of inquiry for the court.” Kimble v. Dyer Cnty. Tennessee, No. W2019-
02042-COA-R3-CV, 2020 WL 7389381, at *4 (Tenn. Ct. App. Dec. 16, 2020), R. 11 perm.
app. denied April 7, 2021. The public duty doctrine, which has lived on in our law
alongside the GTLA, “is a common law defense that shields public employees from suits
for injuries that are caused by the employee’s breach of a duty owed to the public at large
rather than to the individual plaintiff, and it likewise shields local governmental entities
from such liability.” Id. (citing Ezell v. Cockrell, 902 S.W.2d 394, 397 (Tenn. 1995)). Our
Supreme Court has articulated the circumstances in which a special duty exception exists
such that a governmental entity may not rely upon the public duty doctrine for immunity:
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[A] special duty of care exists when 1) officials, by their actions,
affirmatively undertake to protect the plaintiff, and the plaintiff relies upon
the undertaking; 2) a statute specifically provides for a cause of action against
an official or municipality for injuries resulting to a particular class of
individuals, of which the plaintiff is a member, from failure to enforce certain
laws; or 3) the plaintiff alleges a cause of action involving intent, malice, or
reckless misconduct.
Ezell, 902 S.W.2d at 402.
Returning to the present case, the Trial Court held that Plaintiffs’ claims of simple
negligence removed Defendants’ immunity (at least before application of the public duty
doctrine). However, the Trial Court held that Plaintiffs’ claims could not proceed insofar
as they alleged reckless conduct. Plaintiffs argue that the Trial Court erred in effectively
holding that claims of recklessness may never proceed against governmental entities under
the GTLA. Plaintiffs rely chiefly on Brown v. Hamilton Cnty., 126 S.W.3d 43 (Tenn. Ct.
App. 2003), which involved a person who was killed by an individual out on supervised
release pending trial. The trial court in Brown ruled for the County defendant. On appeal,
we reversed the trial court and found, among other things, that a special duty exception
applied to remove the case from the public duty doctrine. We stated:
The Trial Court ruled that the acts on behalf of the County were
discretionary functions rendering the County immune, and further ruled that
there was no evidence that the defendant “acted with intent, malice or
reckless conduct” to take this case out of the public duty doctrine….
***
Reckless conduct is defined as taking place “when a person is aware
of, but consciously disregards, a substantial and unjustifiable risk of such a
nature that its disregard constitutes a gross deviation from the standard of
care that an ordinary person would exercise under all the circumstances.”
Gardner v. Insura Property & Cas. Ins. Co., 956 S.W.2d 1, 3 (Tenn. Ct. App.
1997). The evidence in the record compels the conclusion that defendant’s
implementation of the program with respect to Evay Kelley2 constituted a
substantial and unjustifiable risk, such as the defendant’s conduct is deemed
reckless under the special duty exception. The staff did not know Kelly’s
employment status when he entered the program or at the time of the murder.
No records of activity/whereabouts at all for June 5-8, June 16-23 and July
2
Kelley’s name is spelled various ways in Brown.
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5-6 were available. Kelly was in violation of the program well over half of
the fifty days involved before the murder. Grounds to revoke his status as
early as July 1, one month before murder were present. Kelly was warned
on the July 8 meeting, but there is no record verifying where he was. He was
not asked his whereabouts during the unauthorized absences. There were
over 32 absences unapproved, and at least 17 were not documented in any
fashion. The policy was to revoke for any absence (permitted “not one single
time”). At the time of the murder, there had been at least three overnight
absences and no attempts were made to verify Kelly’s accounts of where he
was by talking with anyone, such as his mother or father to confirm his story.
During the absence for approximately 48 hours before Petersen’s murder,
Brown called Kelly’s house twice on August 6 and 7. No follow up or effort
was made to locate Kelly when there was no response to the phone calls, and
significantly, Kelly was never asked or checked about carrying a weapon,
despite the charges against him.
The preponderance of evidence in the record points to extreme
dereliction by the County in the operation of its program, and such neglect
of duty substantially and unjustifiably increased the risk that harm would
occur. The evidence supports findings of reckless misconduct and omissions
sufficient to come within the exception to the public duty rule, and remove
the defendant’s immunity from liability for these actions.
The issue thus becomes whether the plaintiff has shown the elements
of a negligence claim under the GTLA as outlined in Turner v. Jordan, 957
S.W.2d 815, 818 (Tenn. 1997). The defendant overlooked thirty-two
violations, completely unmonitored Kelley for several days because
equipment was out of operation, and in our view unreasonably accepted
Kelley’s excuses for absences and failed to insist upon documentation or
make any reasonable attempt to verify his stories and take steps to remove
Kelley from the program. Moreover, nothing was done when he was absent
for overnight periods. While Brown had a heavy case load, he denied that
the number of people impeded his ability to execute his job duties.
Brown, 126 S.W.3d at 46, 49-50 (footnote added).
In response, Hawkins County and the EMA argue that Brown contradicts the
statutory scheme of the GTLA and is something of an outlier. These Defendants contend
that the GTLA makes no provision for removal of governmental liability for heightened
forms of negligence as opposed to simple negligence. They cite to Harp v. Metro. Gov’t
of Nashville & Davidson Cnty., No. M2012-02047-COA-R3-CV, 2014 WL 265713 (Tenn.
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Ct App. Jan. 22, 2014), R. 11 perm. app. denied May 13, 2014, wherein this Court
articulated the decisive issue as whether the alleged conduct was reckless or simply
negligent; if it were the latter, governmental immunity was removed. If it were the former,
governmental immunity would stand. In Harp, we discussed as follows, in part:
The parties do not dispute that Ms. Sherrill’s operation of the school
bus in such a way as to hit Mr. Harp proximately caused his injuries or that
Ms. Sherrill’s actions occurred in the course and scope of her employment.
Whether Metro’s immunity is removed, therefore, depends on how we
classify Ms. Sherrill’s actions. If she was negligent in her operation of the
school bus, then Metro’s immunity from suit would be lifted under
Tennessee Code Annotated sections 29-20-202(a) and -205. If, however,
Ms. Sherrill’s actions constituted more than mere negligence-e.g., gross
negligence, willfulness, or recklessness, as Metro argues-then neither
statutory section would operate to remove immunity, and the Harps’ suit may
proceed only against Ms. Sherrill. See Hughes v. Metro. Gov’t of Nashville
& Davidson Cnty., 340 S.W.3d 352, 369 (Tenn. 2011). Stated another way,
did Ms. Sherrill fail to exercise reasonable care, or did she display “‘a
conscious neglect of duty or a callous indifference to consequences’”?
Conroy v. City of Dickson, 49 S.W.3d 868, 871 (Tenn. Ct. App. 2001)
(quoting Thomason v. Wayne Cnty., 611 S.W.2d 585, 587 (Tenn. Ct. App.
1980)) (defining gross negligence).
***
Though Metro conceded at oral argument that the record contains
evidence that Ms. Sherrill’s conduct was “merely negligent,” Metro contends
that the results of a post-accident drug test that Ms. Sherrill took indicating
that her urine sample tested positive for marijuana and cocaine establish that
her conduct was reckless. However, there was no evidence before the trial
court that Ms. Sherrill was impaired at the time of the collision with Mr.
Harp, no evidence explaining the impact the levels of substances contained
in the drug screen would have on her ability to drive, and no evidence that
Ms. Sherrill drove the bus erratically or that the substances reflected in the
positive drug screen impacted her activities on the date of the accident. Mr.
Harp described Ms. Sherrill’s demeanor after the accident as “out of it” and
“dippy,” but opined that those were general descriptions of her usual
personality….
***
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Ms. Sherrill denied using illegal drugs on the day of the accident.
When questioned about the positive drug test results, Ms. Sherrill stated that
they were unexpected because she does not use illegal drugs, but that she
lacked the financial resources to challenge the drug screen. We credit the
trial court’s finding that the evidence fell short of establishing that Ms.
Sherrill was more probably than not under the influence of drugs at the time
of the accident. Furthermore, the evidence does not support a finding that
her conduct was willful, reckless, or grossly negligent.
Based on the record before us, we conclude that the evidence does not
preponderate against the trial court’s finding that Ms. Sherrill acted
negligently in the operation of the bus and by failing to see Mr. Harp.
Consequently, Metro is not entitled to the protections of governmental
immunity and Ms. Sherrill is immune from suit. We, therefore, affirm.
Harp, 2014 WL 265713, at *3-5 (footnotes omitted).
In Hughes v. Metro. Gov’t of Nashville & Davidson Cnty., 340 S.W.3d 352 (Tenn.
2011), our Supreme Court held that while the government employee’s conduct therein fell
within the scope of his employment, his operation of the equipment at issue constituted the
intentional tort of assault rather than negligence. Our Supreme Court explained that the
governmental entity involved thus could not be held liable under the GTLA barring proof
of negligent supervision. The Hughes Court discussed, in part:
In Limbaugh, a resident made a direct showing that the defendant
nursing home, a governmental entity, had failed “to take reasonable
precautions to protect its residents from the risk of abuse by th[e] aggressive
nursing assistant” who committed an assault against the resident. Id.Because the governmental entity negligently supervised its employee, and
the resident suffered an injury from an intentional tort, assault and battery,
not included in the enumerated list in section 29-20-205(2), we held that the
governmental entity’s immunity from suit was removed. Id. Since 2001, the
Court of Appeals has correctly interpreted Limbaugh to mean that “the
GTLA does not allow plaintiffs to hold governmental entities vicariously
liable for intentional torts not exempted under section 29-20-205(2), but
rather requires a direct showing [of] negligence on the part of the
governmental entity.” Pendleton v. Metro. Gov’t of Nashville & Davidson
Cnty., No. M2004-01910-COA-R3-CV, 2005 WL 2138240, at *3 (Tenn. Ct.
App. Sept. 1, 2005); see also Baines v. Wilson Cnty., 86 S.W.3d 575, 581
(Tenn. Ct. App. 2002). Because an assault or a battery is not a negligent act,
see Limbaugh, 59 S.W.3d at 84, the “negligent act or omission” required to
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waive immunity under section 29-20-205 does not refer to the intentional
tort. When, therefore, there has been no showing of negligence by the
governmental entity in supervision of one of its employees acting within the
scope of employment, the exception to sovereign immunity set forth in
section 29-20-205 will not apply. As the Court of Appeals observed in the
case before us, the trial court concluded that the Plaintiff “ ‘failed to prove
negligent supervision,’ and this finding is not challenged on appeal.”
Hughes, 2010 WL 424240, at *12.
Whether Metro’s immunity is waived, therefore, depends on how we
classify the Defendant’s action. If the Defendant was negligent in his
operation of the front-end loader, then Metro’s immunity from suit would be
removed under both Tennessee Code Annotated sections 29-20-202(a) and
205. If the Defendant committed an assault, however, then neither of those
sections would operate to remove immunity, and the Plaintiff’s suit may
proceed only as to the Defendant.
***
Because the evidence establishes that the Defendant intended to
frighten the Plaintiff and perhaps others walking along the access road, he
committed the intentional tort of assault. Evidence that the Defendant merely
acted negligently in the operation of the front-end loader does not
preponderate against the other findings of fact by the trial court. Further,
there is no evidence that Metro was negligent in supervising the Defendant.
Metro is, therefore, entitled to the protections of governmental immunity.
The Plaintiff is, however, entitled to compensation from the Defendant for
his injuries. The cause is, therefore, remanded for the entry of judgment.
Hughes, 340 S.W.3d at 368-69, 371-372. The case now before us does not involve a claim
of an intentional tort as did Hughes. We note the following description of what sets
negligent conduct apart from intentional conduct:
While the absence of intent is essential to the legal concept of negligence,
the presence of an intent to do an act does not preclude negligence. The
distinguishing factor between intentional tortious conduct and negligent
conduct is that the intentional actor has the desire to bring about the
consequences that follow or the substantial certainty that they will occur,
while a negligent actor does not desire to bring about the consequences which
follow, nor does he or she know that they are substantially certain to occur,
or believe that they will; there is merely a risk of such consequences,
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sufficiently great to lead a reasonable person in his or her position to
anticipate them, and to guard against them. Thus, the principal difference
between negligent and intentional conduct is a difference in the probability,
under the circumstances known to the actor and according to common
experience, that certain consequence or a class of consequences will follow
from a certain act.
57A Am.Jur.2d Negligence § 30 (footnotes omitted); see also Holder v. Shelby Cnty., No.
W2014-01910-COA-R3-CV, 2015 WL 1828015, at *6 (Tenn. Ct. App. April 21, 2015),
no appl. perm. appeal filed.
This issue requires us to delineate the distinct concepts of negligence, gross
negligence, and recklessness. Our Supreme Court has defined negligence thusly: “In order
to establish a prima facie claim of negligence, basically defined as the failure to exercise
reasonable care, a plaintiff must establish the following essential elements: ‘(1) a duty of
care owed by defendant to plaintiff; (2) conduct below the applicable standard of care that
amounts to a breach of that duty; (3) an injury or loss; (4) cause in fact; and (5) proximate,
or legal, cause.’ ” Giggers v. Memphis Housing Auth., 277 S.W.3d 359, 364 (Tenn. 2009)
(quoting McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995)). This Court has described
gross negligence as a “negligent act done with utter unconcern for the safety of others, or
one done with such a reckless disregard for the rights of others that a conscious indifference
to consequences is implied in law.” Leatherwood v. Wadley, 121 S.W.3d 682, 694 (Tenn.
Ct. App. 2003) (quoting Odum v. Haynes, 494 S.W.2d 795, 807 (Tenn. Ct. App. 1972)).
Our Supreme Court has described the third concept at issue, recklessness, as occurring
“when the person is aware of, but consciously disregards, a substantial and unjustifiable
risk of such a nature that its disregard constitutes a gross deviation from the standard of
care that an ordinary person would exercise under all the circumstances.” Hodges v. S.C.
Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992). In addition, our Supreme Court has
discussed the state of mind attendant to recklessness as follows:
Recklessness is a hybrid concept which resembles both negligence
and intent, yet which is distinct from both and can be reduced to neither. “A
person acts intentionally when it is the person’s conscious objective or desire
to engage in the conduct or cause the result.” Hodges, 833 S.W.2d at 901.
Although the reckless actor intends to act or not to act, the reckless actor
lacks the “conscious objective or desire” to engage in harmful conduct or to
cause a harmful result. See State v. Kimbrough, 924 S.W.2d 888, 891 (Tenn.
1996) (“[R]ecklessness and negligence are incompatible with desire or
intention.”); Dobbs § 147, at 351 (The reckless actor “does not intentionally
harm another, but he intentionally or consciously runs a very serious risk
with no good reason to do so.”). Nevertheless, recklessness contains an
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awareness component similar to intentional conduct which is not demanded
of negligence. See Dobbs § 147, at 351 (Recklessness “entails a mental
element that is not necessarily required to establish gross negligence.”);
Brady, at 384 (“The element of awareness of risk ... does distinguish between
recklessness and negligence.”).
Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of Nashville, 154 S.W.3d 22, 38 (Tenn.
2005).
As shown by the authorities above, the concepts of negligence, gross negligence,
and recklessness are related. One who acts with gross negligence necessarily also has acted
negligently. In addition, one who acts recklessly deviates grossly from the standard of care
while lacking the conscious desire to cause the underlying harm, a scenario encompassing
but not necessarily coextensive with negligent conduct. In short, conceptually distinct
though it is, simple negligence is a subspecies of these heightened forms of negligence,
and in turn, these concepts contrast with intentional torts. The GTLA does not exclude
claims based on heightened forms of negligence. Indeed, the statute pertaining to immunity
for emergency communications districts, as pertinent to Defendant ECD-911, establishes
gross negligence as the standard for removal of governmental immunity as to members of
emergency communication district boards, stating as relevant: “Emergency
communications district boards, established in § 7-86-105, and the members of such board
shall be immune from any claim, complaint or suit of any nature which relates to or arises
from the conduct of the affairs of the board except in cases of gross negligence by such
board or its members.” Tenn. Code Ann. § 29-20-108 (2012).3 In addition, the third special
duty exception to the public duty doctrine explicitly includes “reckless” conduct. See
Karnes v. Madison Cnty., No. W2009-02476-COA-R3-CV, 2010 WL 3716458, at *6
(Tenn. Ct. App. Sept. 23, 2010), no appl. perm. appeal filed (“[T]o the extent that the
Defendant’s conduct could be deemed reckless, Madison County is not immune from
liability under the public duty doctrine and Plaintiff stated a claim upon which relief could
be granted”). Defendants contend that particular special duty exception is applicable only
to individual defendants. However, we find no legal basis for that interpretation; the
caselaw reflects that it is one of the three special duty exceptions without qualification or
subcategorization. In that light, it would make little sense for a special duty exception to
the public duty doctrine to explicitly include reckless conduct if claims of reckless conduct
against governmental entities could never proceed in the first place.
Brown stands for the proposition that a plaintiff’s claims based upon reckless
conduct may proceed under the GTLA. Nevertheless, Defendants invite us to disregard
3
A recent amendment to this statute, effective January 1, 2021, does not affect our disposition of this
appeal.
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Brown as an outlier. We decline to do so. Brown, a published opinion, remains good law
and has never been overturned, either judicially or legislatively. Should Harp prove
incompatible with Brown, we look to the latter for guidance as it is a published opinion of
this Court and the former is not. However, Harp may not be as irreconcilable with Brown
as Defendants suggest. Harp appears to stand for the proposition that gross negligence,
willfulness, or recklessness cannot operate to remove governmental immunity under the
GTLA. To the extent Harp is categorical about that, we disagree. Nevertheless, the
scenario of Harp is rather different from the present case. Here, there is no hint that
Defendants’ employees were on drugs or otherwise intoxicated on the night of Decedent’s
death. Rather, the claim by Plaintiffs is that Defendants’ employees responded or failed to
respond as they did on the night in question because of the Defendant entities’ nepotistic
hiring practices, failure to train, failure to maintain licensure, etc. Plaintiffs’ allegations
are of systemic failure on the part of the governmental entities rather than solely conduct
from individual governmental employees. That is so whether Plaintiffs’ claims are
couched as negligence, gross negligence, or recklessness. They are all tethered to the
alleged failures of the Defendant entities, not just the employees. It is difficult to imagine
that our General Assembly intended to remove governmental immunity for simple
negligence, but preserve governmental immunity for recklessness or gross negligence.
This would perversely incentivize government, should it commit a negligent act, to commit
worse forms of negligence so as to remain immune. Under the GTLA, and consistent with
our holding in Brown, Plaintiffs could proceed with their claims (including their claims
encompassing simple negligence if they have sufficiently pled claims of recklessness or
gross negligence—heightened forms of negligence) against Defendants; the Trial Court
erred in holding otherwise. Having held that Plaintiffs’ claims of heightened negligence
could proceed against Defendants, an issue exists as to whether Plaintiffs sufficiently pled
heightened negligence.
We next address whether the Trial Court erred in finding that the facts pled were
sufficient to state a claim based upon recklessness. At the judgment on the pleadings stage,
we afford Plaintiffs’ complaint a highly deferential reading and assume its factual
allegations and all reasonable inferences drawn from those facts are true. To be sure,
Plaintiffs characterized Defendants’ conduct as reckless. However, that is a legal
conclusion. The Kimble court discussed how a plaintiff’s characterization of conduct as
reckless in her complaint does not necessarily mean as a matter of law that the conduct at
issue could arise to reckless. We stated:
Turning to the third special duty exception to the Public Duty
Doctrine, i.e., that Deputy John Doe engaged in reckless misconduct, as set
out in context above, in his complaint, Mr. Kimble avers that Deputy Doe’s
“actions of leaving an unguarded, dangerous roadway hazard was reckless
..., [i.e.,] was [a] reckless performance of duty to render aid to another in
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distress.” Mr. Kimble further avers that Deputy John Doe’s “inaction was
reckless.” Although Mr. Kimble characterizes Deputy John Doe’s
action/inaction as reckless, this is a legal conclusion. As such, we are not
constrained to accept or infer that Deputy Doe’s conduct was, in fact,
reckless; rather, the facts set out in the complaint must show a level of
culpability beyond mere negligence….
***
Although Mr. Kimble avers that Deputy John Doe was reckless in failing to
place some “sign or signal of a hazardous situation,” such assertions do not
rise to the level of a “gross of reckless deviation from the reasonable standard
of care.” Id. Taking Mr. Kimble’s factual allegations as true and giving all
reasonable inferences in his favor, at most, he has pled that Deputy John Doe
breached a duty to the general public when he left the scene of one downed
tree to go to another. Because Mr. Kimble’s complaint does not establish a
special duty exception to the Public Duty Doctrine, his claim fails.
Kimble, 2020 WL 7389381, at *6, 8.
Thus, we look to the facts pled by Plaintiffs and all reasonable inferences drawn
from those facts, not simply Plaintiffs’ characterizations of those facts. Among Plaintiffs’
factual allegations were these: that Officer Godsey blatantly refused to follow any protocol
in assessing the situation; that ECD-911 failed or blatantly refused to obtain more
information or make any additional calls to other emergency personnel; and that the EMA
failed or blatantly refused to take any action at all beyond communicating to the power
company that a utility pole was down. Plaintiffs also alleged that Defendants were on
notice and consciously aware that Highway 70 had an active mudslide constituting a severe
road hazard and waited almost an hour to make any effort whatsoever to close down the
highway. As opposed to Kimble, this is not merely a matter of second-guessing the
priorities of government officials. It is about a wholesale failure to train. At the judgment
on the pleadings stage, these allegations and all reasonable inferences drawn from them
must be taken as true. Plaintiffs’ allegations reflect that Defendants were aware of but
consciously disregarded a substantial and unjustifiable risk, the disregard of which
represented a gross deviation from the standard of care that an ordinary person would
exercise under the circumstances. In other words, Plaintiffs pled facts sufficient to state a
claim based upon recklessness, and the Trial Court did not err in so holding. Taking
Plaintiffs’ allegations against Defendants as true, again as we must at this stage, the
allegations further show negligent acts done with utter unconcern for the safety of others
or done with a reckless disregard for the rights of others so as to imply conscious
indifference to consequences. We therefore hold that Plaintiffs’ claims of gross negligence
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are sufficiently stated, as well. Plaintiffs have, as a matter of law, sufficiently pled these
heightened forms of negligence in their complaint.
The final issue we address is whether the Trial Court erred in its analysis of
Plaintiffs’ claims under the common law defense of the public duty doctrine and the special
duty exception. We have no difficulty concluding that Defendants’ duties with respect to
how to respond to the highway washout were duties owed to the public at large and not just
to Decedent individually. See Brown, 126 S.W.3d at 48 (“a duty owed to everyone is a
duty owed to no one,” quoting favorably from the County’s brief). At this stage of the
proceedings, we hold that the public duty doctrine applies subject to any special duty
exceptions. Plaintiffs contend that a special duty exception to the public duty doctrine
exists here. Specifically, Plaintiffs point to the third special duty exception whereby a
plaintiff alleges a cause of action involving intent, malice, or reckless misconduct. As we
have discussed, Plaintiffs successfully stated claims of recklessness and gross negligence.
Therefore, based upon Plaintiffs’ allegations taken as true, the third special duty exception
to the public duty doctrine would apply to remove Defendants’ immunity from liability. In
accordance with Brown, Plaintiffs still must prove their claims of reckless misconduct or
gross negligence in order for the third special duty exception to the public duty doctrine to
apply such that they may then proceed to establish the elements of their negligence claims
under the GTLA. Whether Plaintiffs will prevail in that effort is not before us at this stage
of the proceedings and we take no position on the merits of this case. We hold only that
Plaintiffs’ lawsuit survives Defendants’ motions for judgment on the pleadings as we do
not find that “[Plaintiffs] can prove no set of facts in support of a claim that will entitle
[them] to relief.” Young, 130 S.W.3d at 63. We reverse the judgment of the Trial Court.
Conclusion
The judgment of the Trial Court is reversed, and this cause is remanded to the Trial
Court for collection of the costs below and further proceedings consistent with this
Opinion. The costs on appeal are assessed against the Appellees, Hawkins County
Emergency Communications District Board; Hawkins County, Tennessee; and Hawkins
County Emergency Management Agency.
______________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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