Following Established Procedure Not A Discretionary Function Under Tennessee GTLA

In Parsons v. Wilson County, No. M2014-00521-COA-R3-CV (Tenn. Ct. App. Sept. 3, 2015), plaintiff fell from the top bunk bed he was assigned while he was an inmate at Wilson County jail, and he sued the county under the Governmental Tort Liability Act (GTLA) for negligence in failing to assign him to a bottom bunk. According to plaintiff, he informed employees at the jail of his need for a bottom bunk during the intake procedure, citing “existing shoulder and neck injuries.” When he was assigned to a cell, though, he was assigned a top bunk. While getting out of the bunk after sleeping in it, he fell and injured his shoulder.

At trial, the county employee who oversaw management of the jail testified that “a procedure was in place to determine which inmates received a bottom bunk.” The procedure included forms completed during intake, which were then sent to a medical unit where nurses could “review the forms, meet with inmates, determine whether an inmate is able to be placed in the general population in that jail, and make the decision about whether or not the inmate’s medical needs necessitate that the inmate be assigned a bottom bunk.” Based on the testimony of this employee, plaintiff, and a physician, the trial court ruled in the County’s favor. The trial court ruled that the county was performing a discretionary function under the GTLA and thus retained immunity; that the county “had no duty in this case to provide Plaintiff with a bottom bunk;” that there was no breach of duty to plaintiff; that it was not foreseeable that plaintiff would jump from his bed; and that “Plaintiff was guilty of more than fifty percent (50%) of the fault.” While the Court of Appeals affirmed the ruling in the County’s favor regarding duty, it also reversed two of the trial court’s specific rulings.

First, the Court of Appeals reversed the ruling that the County was engaged in a discretionary function and therefore maintained immunity under the GTLA. The Court pointed out that the test for whether a function is discretionary is the planning-operational test, and that “[d]ecisions that rise to the level of planning or policy-making are considered discretionary acts which do not give rise to tort liability, while decisions that are merely operational are not considered discretionary acts and, therefore, do not give rise to immunity.” Here, the jail employee’s testimony regarding the way bunks were assigned showed that “the role of the officers and the nurses in making the bunk assignments was to implement the existing procedure; thus, the decision to assign [plaintiff] a top bunk was an operational one, not discretionary, and immunity was removed.”

Next, the Court reversed the ruling that plaintiff’s comparative fault would bar the action. In its answer, the County did not plead comparative fault. Attributing fault to plaintiff at trial, then, was not allowed, as “[p]laintiff was deprived of notice that his negligence was at issue and an opportunity to address the defense of comparative fault in the presentation of his case.”

Finally, however, the Court affirmed the ruling that the County “did not owe the duty alleged by Plaintiff[.]” Plaintiff testified that he told the intake officer about a surgery he had in 1990 and an old shoulder injury. According to the Court, plaintiff introduced no evidence to show “that the assignment of a bottom bed was medically necessary at the time of [plaintiff’s] incarceration.” The County had a procedure in place to determine whether a bottom bunk was necessary, and based on the facts presented, no duty to provide a bottom bunk arose in this instance. The Court found that “[o]n the basis of what was known about Plaintiff’s prior medical history, the evidence shows that the County exercised ordinary and reasonable care with respect to the Plaintiff by following the bunk assignment procedure and determining that Plaintiff had no existing medical condition that necessitated a bottom bunk assignment.” The Court held, therefore, that the County did not breach its duty owed to plaintiff.

Here, the Court of Appeals correctly analyzed both the GTLA and the comparative fault issues. The assignment of an inmate to a bunk should not have been considered a discretionary function—it involved employees following an established procedure and protocol, something that probably happened many times a day. This type of activity is not the type of function for which the GTLA was intended to grant immunity to governmental entities, and the Court was right to overturn this ruling. Likewise, the Court correctly overturned the comparative fault allocation to the plaintiff. Defendants must assert comparative fault in their answer if they intend to rely on it; courts are not allowed to assign fault to plaintiffs (or other parties) when a plaintiff has had no notice that such an issue may come up in the litigation.