Day on Torts
Where plaintiff filed suit against several governmental entities, including an emergency 911 board, based on the failure of the multiple entities to respond to and close a road that suffered a mudslide in a timely manner, the public duty doctrine barred plaintiff’s claims against two of those entities. For the claim against the 911 board, however, immunity was removed by plaintiff’s claim of gross negligence pursuant to Tenn. Code Ann. § 29-20-108, and the claim fell within an exception to the public duty doctrine, allowing plaintiff to proceed against that defendant only.
In Lawson v. Hawkins County, No. E2020-01529-COA-R3-CV (Tenn. Ct. App. Dec. 5, 2023), plaintiff filed a GTLA claim after her husband was killed when his car rolled down a mountain after a portion of highway on the mountain was washed away by a mudslide. On the night of the accident, a driver called 911 to warn that the road was washed away at 12:58 a.m. A sheriff’s deputy arrived at the scene at 1:13 a.m., who then called 911 again to discuss the situation. Neither the deputy nor the dispatcher suggested closing the road. The 911 dispatcher placed several calls to various agencies, but at around 1:46 am, the deputy called 911 again reporting that plaintiff’s husband’s car had flipped down the mountain. Shortly thereafter, the deputy stated that a second car had gone down the mountain, at which time the dispatcher stated that she would ask a neighboring county to block the road.
The trial court granted defendants’ motions for judgment on the pleadings, finding that the GTLA “gave defendants immunity from claims alleging recklessness and that the public-duty doctrine independently barred any claims based on negligence.” In its first opinion in this case, the Court of Appeals reversed, holding that the GTLA “did not provide immunity for claims based on gross negligence or recklessness.” On appeal to the Tennessee Supreme Court, the Supreme Court reversed the Court of Appeals, holding that “when the GTLA removes immunity for negligence, it does so for ordinary negligence only.” The case was then remanded back to the Court of Appeals.
Plaintiff had listed three entities as defendants in her complaint: the 911 board, the county, and the county emergency management agency (“EMA”). Much of plaintiff’s complaint focused on the alleged gross negligence and recklessness of these entities. In determining whether plaintiff’s claims against any of these entities could proceed, the Court of Appeals undertook a four-part analysis.
First, the Court considered whether plaintiff had “disavowed any claim of ordinary negligence,” as argued by defendants. Although the complaint alleged recklessness and gross negligence, the Court disagreed that plaintiffs had “disavowed” claims of ordinary negligence. The Court noted that plaintiff had “made alternative arguments, which they are allowed to do.”
Next, the Court looked at whether the complaint “sufficiently alleged ordinary negligence.” Citing extensively from the complaint itself, the Court wrote that although the complaint “emphasized gross negligence and recklessness,” “a fair reading of the complaint reveals claims of ordinary negligence as well.” The Court found that plaintiff alleged all the elements of an ordinary negligence claim, and that the complaint thus sufficiently asserted a cause of action for ordinary negligence.
Third, the Court looked at two statutes that relate to potential liability of a 911 board. Tenn. Code Ann. § 7-86-320 removes immunity “for reckless and intentional acts” related to the “processing” of 911 calls. Because plaintiff’s claims did not relate to the processing of his call, however, this statute did not apply. Tenn. Code Ann. § 29-20-108 has a broader application, as it “removes immunity for emergency communication district boards…in cases of gross negligence.” The Court found that the facts fell within this statute, and that “under Tenn. Code Ann. § 29-20-108, Plaintiffs’ claim of gross negligence removes immunity for [the 911 board] at this judgment on the pleadings stage.”
Having determined that immunity was waived under the statute for the ordinary negligence claims against all defendants and the gross negligence claim against the 911 board, the Court then proceeded to the fourth part of its analysis—“whether the public duty doctrine independently bars any of Plaintiffs’ claims that may proceed under applicable statutory law.” Because the duty to respond to the highway washout was owed to the public at large, the public duty barred plaintiff’s claims unless a special exception applied. Further, pursuant to the Supreme Court’s opinion in this case, “Plaintiffs may not smuggle a claim of ordinary negligence past the public duty doctrine by relying on gross negligence or recklessness when those gross negligence claims would not have lifted governmental immunity in the first place.” Because there was no public duty doctrine exception that would apply to the ordinary negligence claims, those claims were barred by the public duty doctrine.
The gross negligence claim against the 911 board, however, was subject to a different analysis. The Court explained:
Tenn. Code Ann. § 29-20-108 specifically removes immunity for emergency communication district boards in cases of gross negligence. Plaintiffs have alleged gross negligence against ECD-911, which serves to waive immunity under section -108. The next step in the inquiry is whether the public duty doctrine bars Plaintiffs’ claim against ECD-911 notwithstanding the waiver of immunity. Plaintiffs assert the third special duty exception, which applies for acts of intent, malice, or reckless misconduct…
…
Here, Plaintiffs have alleged extreme dereliction, utter unconcern, and conscious indifference on the part of ECD-911 in its response to the emergency call at issue. In our judgment, these allegations by Plaintiffs are inclusive of the intent, malice, or reckless misconduct necessary to establish the third special duty exception to the public duty doctrine. … Plaintiffs have successfully alleged that ECD-911’s governmental immunity is removed under Tenn. Code Ann. § 29-20-108 for gross negligence and that the public duty doctrine does not bar their claim for gross negligence as the third special duty exception applies. Thus, Plaintiffs have alleged facts against ECD-911 which could possibly entitle them to relief. We, therefore, hold that the Trial Court erred in granting ECD-911 judgment on the pleadings.
The trial court’s grant of judgment on the pleadings for the 911 board was thus reversed, but judgment for the other defendants was affirmed.
This opinion, as well as the corresponding Tennessee Supreme Court opinion, are critical reads for litigants navigating the GTLA, especially if claims of gross negligence or recklessness might arise.
This opinion was released 9.5 months after oral arguments in this matter.