Claims Against the Government

April 12, 2015

Ill-Maintained Bridge Leads to Premises Liability for City

Tennessee cities, counties and other types of governmental entities are generally immune from suit for damages arising from personal injury and wrongful death claims. However, a special law, the Governmental Tort Liability Act (GTLA), allows Tennessee cites and counties to be sued for pseronal injury or wrongful death under certain circumstances by removing that immunity.

One special circumstance where a city or county can be held responsible for a personal injury is where injury is caused by “the dangerous or defective condition of any public building, structure,…or other public improvement owned and controlled by such governmental entity.” Tenn. Code Ann. § 29-20-204(a). In order for liability to be removed pursuant to this statute, the governmental entity in question must have had actual or constructive notice of the dangerous condition. “[A] governmental entity will be charged with constructive notice of a fact or information, if the fact or information could have been discovered by reasonable diligence and the governmental entity had a duty to exercise reasonable diligence to inquire into the matter.” (Quoting Hawks v. City of Westmoreland, 960 S.W.2d 10 (Tenn. 1997)).

In Kee v. City of Jackson, No. W2013-02754-COA-R3-CV (Tenn. Ct. App. March 30, 2015), plaintiff was injured while walking across a wooden bridge from a parking area to the city fairgrounds during a flea market. The bridge was owned and maintained by the city. Plaintiff brought a premises liability claim against the city, and the trial court found for plaintiff, deeming the city liable but finding that plaintiff was 40% comparatively negligent and reducing her award accordingly. The city appealed, and the Court of Appeals affirmed the trial court’s judgment.

Plaintiff alleged that the bridge had a “broken rotten runner,” “nails sticking up in more than one place,” and that “the planks were not even and that gaps exist between the boards in various places on the bridge,” as shown by pictures taken two days after the incident. Although there was no allegation or evidence that the city had actual notice of the dangerous condition of the bridge, the Court determined that plaintiff was proceeding under the “common occurrence” theory, meaning that “a plaintiff can show constructive notice by proving that a pattern of conduct, recurring incident, or general continuing condition caused the dangerous condition.” (Quoting Benn v. Public Bldg. Authority of Knox County, 2010 WL 2593932 (Tenn. Ct. App. June 28, 2010)). Continue reading

February 3, 2015

Med-Mal Claims Under the GTLA – Limitation of Actions

by The Law Offices of John Day, P.C.

In 2011, the Tennessee legislature amended the Health Care Liability Act (“HCLA”) to add language regarding governmental entities to the chapter. Per the amendments, health care liability action now specifically includes “claims against the state or a political subdivision thereof,” and health care provider includes “those physicians and nurses employed by a governmental health facility.” Tenn. Code Ann. § 29-26-101. The Court of Appeals first found that this language meant that the 120-day extension of the statute of limitations applies to HCLA cases that fall under the Governmental Tort Liability Act in Harper v. Bradley County, No. E2014-00107-COA-R9-CV, 2014 WL 5487788 (Tenn. Ct. App. Oct. 30, 2014). Now the Court has come to that same conclusion in two additional opinions.

Before the 2011 amendments took effect, the HCLA contained no reference to governmental entities. In Cunningham v. Williamson Cnty. Hosp. Dist., 405 S.W.3d 41 (Tenn. 2013), the Tennessee Supreme Court determined that the HCLA, as it existed prior to the 2011 amendments, did not “evince an express legislative intent to extend the statute of limitations in GTLA cases.” Accordingly, a plaintiff bringing an HCLA claim against a governmental entity was still constricted by the one-year statute of limitations and unable to take advantage of the 120-day extension granted to plaintiffs who give proper pre-suit notice.

Although the Supreme Court has not addressed the interplay of the GTLA and HCLA since the 2011 amendments took effect, the Court of Appeals has now found in three cases that, pursuant to the new language, plaintiffs suing governmental entities under the HCLA are entitled to the 120-day extension so long as they provide proper pre-suit notice. After Harper, the Court reaffirmed its reasoning in Banks v. Bordeaux Long Term Care, 2014 WL 6872979 (Tenn. Ct. App. Dec. 4, 2014). Here, plaintiff sent pre-suit notice prior to the expiration of the one-year statute of limitations then filed suit within the subsequent 120-day window. The trial court dismissed plaintiff’s claim as untimely, but the Court of Appeals reversed. After citing the changes to the HCLA and the reasoning from Harper, the Court held that “Plaintiff’s pre-suit ‘notice’ to the governmental entities was sufficient in all respects; therefore, the GTLA statute of limitations was tolled for an additional 120 days.”

November 19, 2014

Court Torpedos 911-Related Negligence Claim

by The Law Offices of John Day, P.C.

Under the Governmental Tort Liability Act (“GTLA”), governmental entities are immune from lawsuits that arise from the “exercise and discharge” of their functions. There are a very few, specific exceptions to the GTLA listed in the statute. Due to this statutory immunity, making a case for negligence against a government agency can be quite difficult.

In Estate of Quinn v. Henderson, No. E2013-02398-COA-R3-CV (Tenn. Ct. App. Nov. 13, 2014), plaintiff brought a wrongful death suit against both the Blount County fire department and the Blount County 911 center. The action arose out of an incident wherein the deceased’s boyfriend had set fire to her attached garage while the deceased was in the home. The deceased called 911, who then dispatched the fire department. Upon arriving at the scene, however, the fire department could not immediately act. Instead, they followed fire department protocol and waited for the domestic violence situation to be secured by the police before fighting the fire and entering the home. The deceased was removed from the home after it was secured, but died two days later from smoke inhalation.

The trial court granted summary judgment for 911 and the fire department based on the GTLA, finding that the entities “were engaged in planning functions, such that their actions were immune pursuant to the [GTLA].” The trial court further based its decision on the public duty doctrine and comparative fault. The appellate court affirmed, though it based its decision on different reasons. Instead of finding that the entities were engaged in planning functions, the Court of Appeals determined that both 911 and the fire department retained immunity because both negated essential elements of plaintiff’s claims.