Day on Torts
In a unanimous decision, the Tennessee Supreme Court has held that the Governmental Tort Liability Act (GTLA) “removes immunity only for ordinary negligence,” not for gross negligence or recklessness.
In Lawson v. Hawkins County, Tennessee, No. E2020-01529-SC-R11-CV (Tenn. Feb. 16, 2023), plaintiffs were the surviving spouse and child of a driver whose car flipped down a mountain after a portion of highway was washed out by a mudslide. The local 911 dispatch was alerted to the mudslide issue at 12:58 a.m., and a deputy arrived at the scene around 1:13 a.m. During subsequent calls to various government agencies, there was no discussion of closing the road. At 1:46 a.m., the deputy called 911 again and reported that decedent’s car had flipped down the mountain. The driver was trapped in his car for eleven hours and died before he could be reached. Shortly after decedent’s accident, another car also fell down the mountain, and only then did the deputy call for assistance to “block the road off.”
Plaintiffs filed this wrongful death suit, asserting that the “grossly negligent and reckless conduct” by defendant governmental entities caused decedent’s death. Defendants moved for judgment on the pleadings, arguing that the GTLA “provided immunity from suit for claims based on recklessness,” and the trial court agreed. The trial court ruled that the GTLA “gave defendants immunity from claims alleging recklessness and that the public-duty doctrine independently barred any claims based on negligence.” The Court of Appeals reversed dismissal. In its opinion, the Court of Appeals ruled that plaintiffs could pursue claims based on gross negligence and/or recklessness under the GTLA. The Supreme Court, however, disagreed with the Court of Appeals and reversed this ruling.
The only issue addressed in this Supreme Court opinion was whether the GTLA “lifts immunity for grossly negligent and reckless employee actions, in addition to merely negligent ones.” The Court began its analysis by looking at the history of sovereign immunity and the adoption of the statute, noting that when it was passed, Tenn. Code Ann. § 29-20-205 “lifted immunity for ‘injuries proximately caused by a negligent act or omission of any employee within the scope of his employment.’” Despite this lifting of immunity, § 29-20-205 also contains certain exceptions, and if the act causing the injury falls within a listed exception “immunity still holds.” (internal citation omitted). Pursuant to the statute, the GTLA is to be “strictly construed.” (internal citation omitted). The Court pointed out that even in cases where immunity was removed under the GTLA, the governmental entity might still be immune pursuant to the public-duty doctrine, but it explained that the public-duty doctrine need not be considered “unless [the court] first conclude[s] that the [GTLA] waives immunity.” (internal citation omitted).
Because Tenn. Code Ann. § 29-20-205 uses the term “negligent” but does not define it, the Court considered the common law definition in its analysis. The Supreme Court pointed out that both before the adoption of the GTLA and in the years since, “Tennessee courts distinguished between the terms ‘negligence,’ on one hand, and ‘gross negligence’ and ‘recklessness,’ on the other, and used those terms in distinct senses.” While negligence does not require proof of any mental state, gross negligence and recklessness do require proof regarding a defendant’s mental state. (internal citations omitted). The Supreme Court further noted that “Tennessee courts…attach different legal consequences to grossly negligent behavior,” and that plaintiffs had failed to point to precedent indicating that “negligent” should be read to include “grossly negligent or reckless conduct.” The Court wrote:
In sum, Tennessee courts have consistently defined gross negligence and recklessness in a manner distinct from ordinary negligence. The term ‘negligence’ in section -205 is therefore best understood to mean only ordinary negligence, not gross negligence or recklessness. If there were any doubt on this point, the strict-construction rule that applies here would require us to resolve that doubt in favor of governmental immunity. Confined to its express terms, section -205 waives immunity only for employee acts that constitute ordinary negligence.
(internal citation and quotation omitted). The Supreme Court also found that the statutory context of § 29-20-205 supported this holding, because “while the General Assembly used the term ‘negligent’ in the part of section -205 that we are interpreting, it used the term ‘gross negligence’ in another subsection of section -205 and a related statutory provision.”
After holding that the GTLA “removes immunity only for ‘negligent’ employee acts,” the Supreme Court addressed some of the reasoning relied upon by the Court of Appeals. The Supreme Court wrote that the Court of Appeals misinterpreted the holding of a case it relied on, and that “to the extent [that case] can be read as holding that the [GTLA] waives immunity for reckless or grossly negligent employee acts, we reject that holding as inconsistent with the statutory text.” The Supreme Court also wrote that the Court of Appeals analysis that gross negligence and recklessness could be included within the term “negligence” ignored the premise that courts are “to strictly construe the [GTLA’s] waiver of immunity and confine it to its express terms.” (internal citation omitted). Finally, the Court rejected the Court of Appeals’ argument that construing the GTLA to only remove immunity for negligence would “perversely incentivize the government, should it commit a negligent act, to commit worse forms of negligence to avoid liability.” (internal citation and quotation omitted). The Supreme Court wrote that this concern was offset by the fact that “the immunity afforded governmental entities does not extend to the employee,” and that plaintiffs would thus not be left without recourse. (internal citation omitted).
The Supreme Court also specifically addressed and rejected two arguments advanced by plaintiffs. First, plaintiffs argued that this construction of the GTLA would make the statute conflict with other sections of the Tennessee code that deal with emergency communications district boards. The Supreme Court found, however, that because a “more specific statutory provision takes precedence over a more general provision,” these statutes were “complementary, not contradictory.” (internal citation omitted). Plaintiffs also argued that adopting this interpretation of the GTLA did not make sense in light of some of the exceptions listed in § 29-20-205, and that “the public-duty doctrine’s special-duty exception for cases involving intent, malice, or reckless misconduct could never apply if the [GTLA] removes immunity only for negligent employee acts,” but the Supreme Court rejected these arguments, writing of at least one hypothetical situation in which this exception would still apply.
The Supreme Court concluded by holding that “section -205’s waiver of immunity for ‘negligent’ acts includes only ordinary negligence, not gross negligence or recklessness.”
Although the opinion in this case was unanimous, Justice Kirby also wrote a concurring opinion in which she addressed “whether we should continue to apply the common law public duty doctrine and the related special duty exception in cases where the legislature has addressed the issue of immunity by statute.” She noted that in the time since the Court decided to continue utilizing the public duty doctrine and special duty exception, “the legislature has enacted a host of special statutory provisions and exceptions regarding governmental immunity,” and that some of these enacted provisions are not consistent with the public duty doctrine and special duty exception. (internal citation omitted). She also pointed out that the holding in this case could further complicate navigation of governmental immunity, writing:
If the plaintiff’s complaint alleges that the governmental entity’s employee was reckless in order to qualify for the ‘reckless misconduct’ special duty exception to the public duty doctrine, then dismissal under the GTLA is likely because immunity is not removed for reckless conduct. Conversely, if the complaint alleges that the governmental employee was negligent in order to avoid dismissal under the GTLA, the plaintiff risks dismissal under the public duty doctrine by making his claim ineligible for the special duty exception for reckless misconduct.
She concluded by stating that, in a future case, she “hope[s] we can look squarely at whether we should continue to adhere to Ezell, limit application of the public duty doctrine and the special duty exception, or discontinue application of those common law principles in deference to the statutes governing immunity.”
This opinion is critical for anyone litigating a GTLA case, and as the concurring opinion points out, it could cause major issues for plaintiffs navigating governmental immunity. Look for more court cases struggling with this issue, including cases pending before the Claims Commission.
This opinion was released 8.5 months after oral arguments.
Note: Chapter 41, Sections 7, 8 and 11 of Day on Torts: Leading Cases in Tennessee Tort Law has been updated to include this decision.
Day on Torts: Leading Cases in Tennessee Tort Law contains summaries of leading cases on over 500 topics and citations to more than 1500 additional cases. The 500,000+ word book (and two others, Tennessee Law of Civil Trial and Compendium of Tennessee Tort Reform Cases) is available by subscription at www.birddoglaw.com and is continually updated as new decisions and statutes impact Tennessee law. Click on the link to see the book’s Table of Contents.
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