Articles Posted in Claims Against the Government

Where a housekeeper failed to use wet floor signs in a dorm bathroom, plaintiff received damages for the negligence of a state employee.

In Hood v. State of Tennessee, No. E2023-00773-COA-R3-CV (Tenn. Ct. App. April 3, 2024), plaintiff was a student at the University of Tennessee. Her dorm room included a bathroom area at the entry, with two bedrooms adjoining the bathroom. The bathroom connected to the dorm hallway. After arriving at her room one day, she crossed the bathroom floor to her bedroom. The floor was dry at that time. She ate lunch with headphones in, then went back out to the bathroom. When she stepped into the bathroom, she fell on a wet substance that smelled like cleaner and broke her arm.

Plaintiff filed her claim with the Tennessee Claims Commission for her “injuries caused by the negligence of a state employee.” Plaintiff testified that the floor was saturated when she fell. In fact, her clothes soaked through, requiring her to change before going to the hospital. Plaintiff provided a detailed timeline of when she likely arrived and how long she ate lunch. She asserted that the floor was wet from being cleaned while she ate lunch in her room, and that the housekeeper failed to warn her of the wet floor.

Where an HCLA plaintiff failed to establish a breach of the applicable standard of care, the Claims Commissioner’s ruling for the State was affirmed.

In Black v. State, No. M2022-00399-COA-R3-CV (Tenn. Ct. App. July 25, 2023), plaintiff filed suit on behalf of her husband, who died after a short stay in a skilled nursing facility owned and operated by the State of Tennessee. When the husband was admitted to the facility, he was 84-years-old and suffered from Alzheimer’s disease, diabetes, and many other health complications.

Plaintiff visited her husband every day in the facility, and on December 29, 2016, she told the staff that she suspected he had a urinary tract infection. The facility staff ran a test, which was negative, and created care plans for the husband the next day. Four days later, the facility staff completed a more detailed assessment of the husband’s condition and care needs. Four days after this assessment, the husband was taken to the emergency room, where he was found to be suffering from septic shock and aspiration pneumonia. Approximately two weeks later, the husband died at the hospital.

Where defendant physician was employed by a state university and received no personal gain from the clinical services she rendered at a hospital, and plaintiff had brought an HCLA action based on these hospital clinical services, summary judgment pursuant to defendant’s absolute immunity under the Tennessee Claims Commission Act was affirmed.

In Parker ex rel. Parker v. Dassow, No. E2021-01402-COA-R3-CV, 2022 WL 11584155 (Tenn. Ct. App. Oct. 20, 2022), plaintiff filed this HCLA suit on behalf of her son. According to plaintiff, defendant physician failed to find a condition on the son’s ultrasound before he was born, which caused him permanent injuries. Plaintiff asserted that this negligent ultrasound reading occurred at Erlanger Hospital.

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Although the State had contracted with a municipality for the maintenance of a state-owned highway, the State still bore “the ultimate responsibility for inspecting and maintaining [the highway],” and “the contract did not absolve the State of potential liability for failing to do so.” Denial of the State’s motion for summary judgment in this GTLA case was thus affirmed.

In Polhamus v. State, No. E2021-012553-COA-R9-CV, 2022 WL 1788380 (Tenn. Ct. App. June 2, 2022), plaintiff was injured when he crashed his motorcycle after hitting a pothole on a state-owned highway. Although the State owned the highway, it had contracted with the City of Kingsport to maintain the highways.

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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.”

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