Claims Against the Government

November 2, 2024

Claims commission does not have jurisdiction over gross negligence claim.

Where plaintiff was injured by a dangerous condition on state property created by the gross negligence of a state employee, the Claims Commission Act did not provide a cause of action.

In Gordon v. State of Tennessee, No. W2023-01012-COA-R3-CV (Tenn. Ct. App. Oct. 10, 2024), plaintiff child was injured when she cut her foot on a broken metal pipe under the surface of a state-owned lake. Plaintiff and her mom filed an action with the Claims Commission pursuant to Tenn. Code Ann. § 9-8-307(a)(1)(C), which “relat[es] to negligently created or maintained dangerous conditions on state property.”

The Claims Commission initially ruled for plaintiff, finding that the pipe remnant was left in the lake when the pipe was replaced, and that “the child’s injury was foreseeable and proximately caused by the State’s negligence.” The State filed a motion to alter or amend, arguing that the Recreational Use Statute provided immunity here. The Claims Commission agreed that the Recreational Use Statute applied, but it ruled that the facts of this case constituted gross negligence, which is an exception to immunity under the Recreational Use Statute. The Claims Commission affirmed the damages award to plaintiff, and defendant State appealed.

May 1, 2024

Liability for negligence of a state employee.

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

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.

August 31, 2023

HCLA plaintiff failed to establish breach of standard of care.

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

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.

October 24, 2022

Physician employed by state university had absolute immunity under Tennessee Claims Commission Act.

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

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.

June 15, 2022

State responsible for allegedly dangerous condition on state-owned highway despite contracting maintenance out to city.

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

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.

May 3, 2022

County not immune from suit where sheriff’s deputy failed to investigate death threats.

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

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.

January 25, 2022

Filing complaint with Tennessee Claims Commission did not satisfy requirement to give written notice to Division of Claims and Risk Management.

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

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.

December 31, 2021

Child in care, custody, or control of State between removal from parent’s home and entry of custody order by juvenile court.

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

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.

November 4, 2021

Summary Judgment Based on Tennessee Recreational Use Statute Affirmed.

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

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.

September 1, 2021

Statute of limitations did not affect time period to file with Tennessee Claims Commission after denial by Division of Claims and Risk Management.

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

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).