“Scope of Employment” and the Tennessee GTLA


Where an ROTC instructor pulled a stool from beneath a student, his actions were not within the scope of his employment and immunity was not removed under the GTLA.

In O’Brian v. Rutherford County Board of Education, No. M2017-00527-COA-R3-CV (Tenn. Ct. App. July 31, 2018), plaintiff was a sophomore in high school and participant in the ROTC program. While at an ROTC competition, the instructor asked his group of students to sit on a log. The instructor’s stool, which he had brought from home, was next to the log. Plaintiff sat on the stool to tie her shoes. The instructor asked her to move several times, to which she responded that she was almost finished. After saying plaintiff’s name for a third time and plaintiff not moving, the instructor pulled the stool out from underneath plaintiff, and she fell, injuring her back.

Plaintiff brought this suit against the school board pursuant to the Governmental Tort Liability Act, which provides immunity from civil suits to governmental entities. “Section 29-20-205 [of the GTLA] removes the immunity for injuries proximately caused by the negligent act or omission of a governmental employee acting within the scope of their employment[.]” In this case, the trial court determined that the instructor was not acting within the scope of his employment and that immunity was not removed, and it accordingly dismissed the case. The Court of Appeals affirmed.

The only issue here was whether the ROTC instructor’s actions in pulling the stool from under plaintiff occurred within the scope of his employment. The Restatement (Second) of Agency Section 229(2) lists ten factors to be considered when “determining whether or not the conduct although not authorized is nevertheless so similar to or incidental to the conduct authorized as to be within the scope of employment,” including whether the act was commonly done; the “time, place and purpose of the act;” and whether the employer “has reason to expect such an act will be done.”

The evidence presented by defendant at the bench trial consisted of the testimony of the instructor and the defendant’s staff attorney. The instructor testified that “his actions in pulling the stool from beneath [plaintiff] occurred ‘in the heat of the moment’ and out of ‘frustration,’” and that he was not acting within the scope of his employment. The staff attorney testified that the instructor’s actions were “outside the scope of the policies and procedures” for defendant, and that defendant had not “coached a teacher or coach to deal with the student in a way [the instructor] apparently did,” although the staff attorney did admit that the instructor received no punishment for the action.

The Court of Appeals ultimately ruled that the evidence did not preponderate against the trial court’s determination that liability was not removed here. The Court pointed out that the incident “occurred during a JROTC competition in [the instructor’s] role as disciplinarian over the team,” and that the factors regarding whether the defendant should have expected the behavior or whether the defendant furnished the “instrumentality by which the harm is done” weighed against the conclusion that the instructor was acting within the scope of his employment. Accordingly, dismissal of the case was affirmed.

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