Day on Torts
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.
When husband was served with the protective order, he told the police he should “just…shoot her between the eyes and be done with it.” Thereafter, husband had called plaintiff and her friend multiple times, threatening to kill them both. When these threats were made, plaintiff would call and report them to Investigator Rosson of the Perry County Sheriff’s Department. According to plaintiff, she left multiple voice mails for Investigator Rosson, but he never returned her calls.
After the shooting, plaintiff filed this suit against defendant Perry County claiming that “the deputy sheriff’s failure to investigate the death threats and arrest [husband] was the proximate cause of her injuries.” The County filed a motion to dismiss based on the GTLA discretionary function exception and/or the public duty doctrine, which the trial court granted, but the Court of Appeals reversed.
The Court of Appeals first analyzed whether dismissal was appropriate based on the discretionary function exception to the GTLA. While the GTLA allows “an injured party [to] sue a county for the negligent acts or omissions of a county employee acting within the scope of employment,” counties are considered immune from suit “if the injury arises from the exercise or performance or the failure to exercise or perform a discretionary function, whether or not the discretion is abused.” (citing Tenn. Code Ann. § 29-20-205 (internal quotation omitted)). The Tennessee Supreme Court “has adopted a planning-operational test to determine whether a decision is discretionary within the meaning of the GTLA,” explaining that “planning or policy-making decisions are immune from liability” while “operational decisions do not enjoy the same protection.” (internal citations omitted). According to the Supreme Court, “[a] negligent act or omission is operational when it is made (1) in the absence of a formulated policy guiding the conduct or omission; or (2) when the conduct deviates from an established plan or policy.” (internal citation omitted).
Considering the facts of this case, the Court ruled that “the complaint alleged sufficient operational acts or omissions to survive the motion to dismiss.” The Court reasoned:
We conclude that the acts alleged in the complaint are operational. Deputy sheriffs have a statutory duty to investigate criminal activity. This duty is heightened when the complaint involves domestic abuse. [Husband’s] threats could constitute crimes. At the very least, Investigator Rosson had a duty to respond reasonably to the report of a possible crime.
(internal citations omitted).
The Court next analyzed whether the case should have been dismissed pursuant to the public duty doctrine. 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.” (internal citation omitted). While the “duty to keep the peace is a public duty,” plaintiff asserted that this case fell within the “special duty” exception to the public duty doctrine. A special duty of care can arise in three ways, one of which is when “the plaintiff alleges a cause of action involving intent, malice, or reckless misconduct,” and plaintiff argued that the sheriff’s deputy here engaged in reckless misconduct such that the public duty doctrine did not apply.
Recklessness has been defined as “the conscious disregard of a substantial and unjustifiable risk constituting a gross deviation from the standard of care.” (internal citation omitted). Here, plaintiff alleged that law enforcement knew her husband was violent, that he threatened to kill her in front of law enforcement, that he was being actively investigated for burning her car, and that despite this knowledge, Investigator Rosson failed to follow up on the multiple death threats made by husband towards plaintiff. Viewing the complaint “with a generous eye,” the Court concluded:
[W]e find the factual allegations in the complaint sufficient to permit a finding that Investigator Rosson consciously disregarded a substantial and unjustifiable risk of such a nature that its disregard constituted a gross deviation from the standard of ordinary care. Perry County is not clearly immune from liability under the public duty doctrine. As Perry County correctly points out, the GTLA only removes sovereign immunity for negligence, not recklessness. Even so, the complaint also asserted liability based on Tennessee Code Annotated § 8-8-302. That statute removes sovereign immunity for non-negligent acts or omissions of a deputy sheriff if, at the time of the injury, the deputy sheriff is acting by virtue of or under the color of the office. So if Investigator Rosson recklessly failed to perform the duties of his office, Perry County could possibly be liable on this basis.
(internal citations omitted).
Because the County was not immune from suit under either the discretionary function exception or the public duty doctrine, dismissal of the case was vacated.
The analysis of whether an action was discretionary or operational in nature can be vital in a GTLA case. This opinion is an important read for anyone litigating this issue, especially if the case pertains to decisions made by law enforcement officers.
This opinion was released 8.5 months after oral arguments in this case.
Note: Chapter 41, Sections 5 and 18 of Day on Torts: Leading Cases in Tennessee Tort Law has been updated to include this decision.
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