Articles Posted in Claims Against the Government

Where plaintiff alleged that an investigator recklessly failed to investigate criminal threats made by her husband, despite the husband having a known history of violence, dismissal based on the GTLA was vacated.

In Haynes v. Perry County, Tennessee, No. M2020-01448-COA-R3-CV, 2022 WL 1210462 (Tenn. Ct. App. April 25, 2022), plaintiff was shot multiple times by her estranged husband in August 2018. The husband had a known history of violence, including being convicted of murdering his first wife. Plaintiff had accused husband of domestic violence and gotten an order of protection in June 2018, although she later dropped the order, and had moved in with a friend to attempt to get away. In the months preceding the shooting, plaintiff’s car was set on fire, and husband was under investigation for the crime.

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Where plaintiff wife failed to give written notice of her loss of consortium claim against the State of Tennessee  to the Division of Claims and Risk Management, dismissal of her claim was affirmed, despite the fact that her complaint was filed with the Claims Commission within the statute of limitations.

In Kampmeyer v. State, No. M2019-01196-SC-R11-CV (Tenn. Jan. 13, 2022),  plaintiff husband was seriously injured when his car crashed into a state-owned vehicle that had been parked on a highway. Pursuant to Tenn. Code Ann. § 9-8-402, which applies to certain claims against the State, husband gave written notice of his claim for damages to the Division of Claims and Risk Management (Division of Claims). When the Division of Claims took no action within 90 days, husband filed a complaint with the Claims Commission. This complaint was filed just under one year after the car accident, and instead of only including husband’s claims, it also included a loss of consortium claim from plaintiff wife.

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Where a child was removed from his parents’ custody by the Department of Children’s Services (DCS) and placed in a home that DCS’s own investigation had found to be unsafe, and the child later died while in that home, the Claims Commission had subject matter jurisdiction of the parents’ negligence claim because the child was in the care, custody, or control of the State when the negligent inspection and recommendation for placement was made.

In Green v. State of Tennessee, No. M2020-01244-COA-R3-CV (Tenn. Ct. App. Dec. 15, 2021), plaintiffs were the parents of three minor children. After receiving a report of abuse and/or neglect concerning the children, DCS removed the children and the mother signed an Immediate Protection Agreement (IPA) stating that temporary custody would be given to the children’s grandparents. Ms. McSwain was the DCS case manager assigned to the case, but a DCS staff member in the grandparents’ county visited the home and found it to be unsafe, specifically noting that there was not “sufficient furniture for safe sleep.” Despite that finding, Ms. McSwain placed the children in the grandparents’ home, and she never visited the home or followed up to see if any changes had been made. A court order granting temporary custody to the grandparents was eventually entered. Four months after being placed with the grandparents, one of the children died “from co-sleeping in a recliner with [the grandmother].” Ms. McSwain and her supervisor “were subsequently terminated by DCS for negligence.”

Parents brought this negligence suit against the State pursuant to Tenn. Code Ann. § 9-8-307(a)(1)(E), and the State filed a motion to dismiss asserting that the Claims Commission did not have subject matter jurisdiction of the case. The State argued that because there was a court order granting temporary custody to the grandparents in place when the child died, the child was not in the State’s “care, custody, and control,” which is required by the statute. The Claims Commission agreed with the state, finding that the case did not fall within the  subsection cited by plaintiffs, that governmental immunity was therefore not waived, and that it accordingly did not have subject matter jurisdiction. This holding was reversed on appeal.

Where a minor child was injured while playing on a playground at a state park, and after the incident a park ranger admitted that the mulch under the playground was not thick enough but no prior notice of the mulch condition had been shown, plaintiff had not proven gross negligence to overcome the immunity afforded to the State under the Tennessee Recreational Use Statute. In Victory v. State, No. M2020-01610-COA-R3-CV (Tenn. Ct. App. Oct. 29, 2021), plaintiffs’ minor child had gone camping with her grandparents at a state park. While there, the child went with her grandmother to play on a playground, and the child fell off the playground, fracturing her arm. The grandparents took pictures of the area the day after the fall, and plaintiffs filed suit, alleging that the “injury was due to inadequate mulch or padding on the playground.”

Plaintiffs’ complaint asserted claims for negligence, gross negligence, and gross negligence per se. After discovery, the State filed a motion for summary judgment, which the Claims Commissioner granted on two grounds. First, the Claims Commissioner ruled that the claim was “barred by § 70-7-102(a) of Tennessee’s Recreational Use Statute, which protects landowners, including the State of Tennessee, from responsibility for injury to recreational visitors.” The Commissioner further found that the gross negligence exception to the Recreational Use Statute did not apply here. Second, the Commissioner ruled that “Plaintiffs failed to establish an essential element of their claim under § 9-8-307(a)(1)(C) of the Claims Commission Act, that the proper state official had been given prior notice of the playground’s condition.” On appeal, summary judgment for the State was affirmed.

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Where plaintiff failed to file her appeal to the Claims Commission within 90 days of her claim being denied by the Division of Claims and Risk Management, dismissal was affirmed, even though the filing with the Claims Commission was within the one-year period following the car accident at issue. In Howard v. State, No. M2020-00735-COA-R3-CV (Tenn. Ct. App. Aug. 26, 2021), plaintiff was injured in a car accident where the other car was being driven by a State employee. The accident occurred on March 12, 2019. Plaintiff filed a claim for damages with the Department of Claims and Risk Management (DCRM), which was denied on June 24, 2019. In the denial letter, the DCRM explained that plaintiff “had the right to file her claim with the Claims Commission within 90 days of the date of this denial.” Plaintiff subsequently filed her appeal with the Claims Commission on December 18, 2019. Because the appeal was not filed within 90 days of the denial by the DCRM, the Commissioner found that the Claims Commission lacked jurisdiction of the claim, and an order of dismissal was entered. This ruling was affirmed by the Court of Appeals.

“Tenn. Code Ann. § 9-8-402 provides… the procedure for initiating a claim against the State.” Subsection (c) of this statute states that if the claim is denied by the DCRM, “the division shall so notify the claimant and inform the claimant of the reasons therefor and of the claimant’s right to file a claim with the claims commission within ninety (90) days of the date of the denial notice.” The Tennessee Claims Commission Rules also refer to the “time limit set out in T.C.A. § 9-8-402(c).” (internal citation omitted).

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Where plaintiff filed a premises liability claim against the State asserting that decedent’s death was caused by injuries he sustained when he fell off a sidewalk that constituted a dangerous condition, but plaintiff could not “show that the condition of the sidewalk more likely than not caused” the fall, summary judgment for defendant was affirmed.

In O’Guin v. State, No. M2020-00732-COA-R3-CV (Tenn. Ct. App. July 28, 2021), decedent was admitted to the Tennessee State Veterans’ Home after suffering a stroke. He was in a wheelchair, but was “alert, oriented, and able to communicate with staff.” While spending time outside just two days after his admission, decedent “fell outside the facility entrance” and “suffered serious injuries and tragically died five days later.”

Plaintiff filed this case with the Claims Commission as administrator of decedent’s estate, “alleging that the State negligently created or maintained a dangerous condition on the property.” Plaintiff asserted that decedent was “fatally injured after his wheelchair fell off the sidewalk in front of the facility entrance,” and that the height of the sidewalk combined with the “lack of sufficient markings or barriers at the edge of the sidewalk created a dangerous condition.”

Where plaintiffs included wife’s claim for loss of consortium in their complaint with the Tennessee Claims Commission, but the wife had not given notice of her loss of consortium claim to the Division of Claims Administration within the applicable statute of limitations, dismissal of the wife’s claim was affirmed.

In Kampmeyer v. State of Tennessee, No. M2019-01196-COA-R3-CV (Tenn. Ct. App. Aug. 28, 2020), plaintiffs were a husband and wife. The husband had been injured in a car accident allegedly caused by a TDOT vehicle and trailer parked in a roadway, and within the one-year statute of limitations, the husband filed a “Claim for Damages in the Division of Claims Administration” (the DCA). Because the DCA made no decision on his claim within 90 days, the claim was transferred to the Claims Commission.

Plaintiffs subsequently filed a complaint with the Claims Commission, including husband’s claims as well as a claim by wife for loss of consortium. The State “moved to dismiss [wife’s] loss of consortium claim on the ground that she did not file a notice of claim with the DCA within the one-year statute of limitations.” Because the complaint was filed within one year from the date of the accident, plaintiffs argued that wife’s “loss of consortium claim should not have been dismissed but should have been transferred to the Board of Claims for processing[.]” The Claims Commission agreed with the State and dismissed wife’s claim, and the Court of Appeals affirmed.

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Certain claims for personal injury, wrongful death and property damage may be asserted against the State of Tennessee, but different rules apply and there are plenty of pitfalls for those unfamiliar with the law or procedures of litigating in the Claims Commission.  One such pitfall arise at the intersection of the law of claims against the State and the law of comparative fault.

In Moreno v. City of Clarksville[1]  plaintiff filed a claim against the State of Tennessee after a tree on state law fell on his vehicle.  When the claim was not settled, he timely filed a formal complaint with the Claims Commission.  The State of Tennessee then blamed the City of Clarksville for causing the damage and, within the 90-day period provided by §20-1-119 plaintiff sued the City of Clarksville under the Governmental Tort Liability Act in state court.  As permitted by statute,[2] the Claims Commission action was transferred to the Circuit Court for Montgomery County and consolidated with the action pending against the City of Clarksville. [3]

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Where a Claims Commissioner credited the testimony of defendant’s expert over plaintiffs’ expert in a wrongful death case, the Court of Appeals affirmed the ruling.

In Jones v. State of Tennessee, No. M2017-02198-COA-R3-CV (Tenn. Ct. App. July 24, 2019), plaintiffs’ son was a football player at Tennessee State University (TSU). While running a drill at practice one day, the son collapsed after suffering a sudden cardiac arrest. Two trainers rushed to respond, but they did not immediately recognize the situation as a cardiac arrest. The trainers called 911, and while on the phone, the son had a seizure and stopped breathing. At that time, the trainers began CPR and sent for an AED that was stored in the trainers’ van. The AED was never used, as the paramedics arrived before it was retrieved. The son was not able to be revived and was pronounced dead at the hospital. The autopsy listed his cause of death as “a fatal arrhythmia of his heart due to scar tissue,” and the report noted that “his heart’s right atrium and ventricle were enlarged” and that there were “extensive amounts of scar tissue throughout the left and right ventricles.”

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Lay witness testimony should have been admitted regarding the likely source of gravel on a road after road construction, and summary judgment in this case was overturned.

In Flagg v. Hudson Construction Company, No. E2017-01810-COA-R3-CV (Tenn. Ct. App. May 28, 2019), plaintiff crashed his motorcycle on a recently paved section of a state highway. Plaintiff alleged that an excessive amount of loose gravel left over from the construction caused the crash, and he brought negligence suits against the construction company and the state. The trial court granted summary judgment to defendants on all claims, holding that lay witness testimony regarding the likely source of the loose gravel on the road should be excluded, but the Court of Appeals reversed.

The evidence at trial showed that defendant construction company was contracted to resurface the road, and that the process involved laying rock chips and adhesive materials on the road, “followed by a thin layer of microsurfacing for a smoother driving surface.” The company “periodically cleaned excess gravel and debris from the road throughout the paving process,” but at the end it “only cleaned those portions of the road it deemed necessary for the permanent striping to adhere properly.” The stripes were put on the road on October 16th and 17th, and a TDOT supervisor inspected the project on October 19th. He stated that he “looked for excess gravel, overall cleanliness, and the integrity of the permanent striping,” but that he did the majority of his inspection while driving his vehicle and only stopped and got out “when he deemed it necessary.” He found no problems and notified the construction company that the work was acceptable that day.

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