Day on Torts
A plaintiff’s claim that the city had a duty to protect her against a dog owned by another citizen fell under the public duty doctrine, and summary judgment for defendant city was thus affirmed.
In Fleming v. City of Memphis, No. W2018-00984-COA-R3-CV (Tenn. Ct. App. Mar. 5, 2019), plaintiff filed suit against defendant city after she was attacked and mauled by a dog owned by a private citizen. Plaintiff alleged that the city “had actual prior notice of this dog’s vicious propensities” based on two prior attacks by the same dog. Defendant filed a motion for summary judgment based on the public duty doctrine, which the trial court granted and the Court of Appeals affirmed.
It was undisputed that the GTLA did not provide the City immunity in this case. After the dog bite preceding the attack on plaintiff, an animal control worker “did not believe there were grounds upon which [to seek] a petition to declare the dog dangerous and vicious under City ordinance,” and this decision by the government worker was determined to be operational. The issues raised by plaintiff, then, were “1) whether the GTLA supersedes the public duty doctrine; and 2) if the public duty doctrine survives, whether the trial court erred in finding that it applie[d]” here.
The Court quickly rejected plaintiff’s assertion that the public duty doctrine did not survive the adoption of the GTLA. The Court pointed out that this exact issue was decided by the Tennessee Supreme Court in Ezell v. Cockrell, 902 S.W.2d 394 (Tenn. 1995), with the Supreme Court “holding that the public duty doctrine lives on[.]” While plaintiff argued that Ezell was decided wrongly, the Court of Appeals noted that it had no authority to “depart from the Tennessee Supreme Court’s unequivocal holdings.” (internal citation and quotation omitted).
The Court then turned to plaintiff’s second argument—that the public duty doctrine did not apply to this case. “The public duty doctrine…shields a public employee from suits for injuries that are caused by the public employee’s breach of a duty owed to the public at large.” (quoting Ezell). The doctrine also shields governmental entities. When a case is brought against a governmental entity and “the GTLA does not provide immunity, courts may look to the general rule of immunity under the public duty doctrine. If immunity is found under the public duty doctrine, the next inquiry is whether the special duty exception removes the immunity afforded under the public duty doctrine.” (internal citation and quotation omitted).
Plaintiff argued that the doctrine should not be applied here “because Defendant was on notice of the dog’s propensities and should have foreseen an incident occurring such as what happened to her.” She asserted that “if this doctrine were interpreted as requiring the actual plaintiff, by name, to be known to the public official as a condition precedent to the imposition of liability, there would be virtually no GTLA case that could ever survive a summary judgment proceeding, because…all government employees, by definition, act for the public at large in the constituency through which they serve.” The Court rejected this wholesale argument against the public duty doctrine, though, noting that although “perhaps even a significant percentage” of cases brought under the GTLA are dismissed under this doctrine, “[n]ot every case involving a public employee or governmental entity necessarily is predicated on the existence of a duty to the public at large.” Here, plaintiff’s case was premised on the assertion that Defendant “had a duty to protect citizens from dangerous animals…because of their public duty and not because they owned the dog in question or somehow had a personal responsibility to keep it confined.” The public duty doctrine thus applied to this fact pattern.
Having determined that the public duty doctrine applied, the Court next looked at whether the special duty exception should remove immunity. In Ezell, the Supreme Court listed three categories of special duty exceptions—one based on the affirmative actions of a government official, one based on a statutes, and one based on allegations of “intent, malice or reckless misconduct.” Plaintiff in this case made “no effort to establish how her case fits into one of the three types of special duty exception to the public duty doctrine.” Instead, she argued that she was a “foreseeable plaintiff,” but the Court ruled that “[f]oreseeability, while a factor in every negligence case, is not one of the valid special duty exceptions.” The Court therefore held that no exception existed here, and summary judgment for defendant City was affirmed.
The Court of Appeals seemed sympathetic to plaintiff, noting that the attack was “truly unfortunate and serious.” Because plaintiff had “staked her appeal on [the Court] somehow departing from Ezell,” however, the Court was unable to rule in plaintiff’s favor.