Day on Torts
Where a man being arrested was shot and killed after he went out of his home and raised a gun towards a police officer, the Court of Appeals affirmed dismissal of a GTLA tort suit, finding that the police department was immune from suit and that the suit was barred by the decedent’s comparative fault.
In Acree v. Metropolitan Government of Nashville and Davidson County, No. M2019-00056-COA-R3-CV (Tenn. Ct. App. Dec. 27, 2019), decedent failed to appear for an aggravated criminal trespass court hearing, which resulted in a felony warrant being issued. Officers retrieved the warrant the next day, and the warrant stated that “subject may exhibit paranoia and feel that officers are following him.” The officer serving the warrant also noted that “Decedent had been arrested three times in the past six months without incident.” Four officers proceeded to decedent’s home, and two went to the front door and two to the back door. One officer knocked and identified himself, and when there was no answer, he saw through a hole in the door that decedent was not moving. The officer knocked again and saw decedent move away from the front of the house, so he called over the radio that decedent was walking towards the back door. Decedent then “abruptly open[ed] the back door and raise[d] a firearm at” one officer. The officer shot once, striking and killing decedent.
Plaintiff, decedent’s brother, filed this suit against the metropolitan government under the GTLA. Plaintiff asserted that the police officers failed to abide by an internal policy regarding “Interviewing and Transporting Mentally Ill Persons,” which would have had them withdraw from the scene and call in a Mobile Crisis Response Team. The trial court granted summary judgment to defendant, finding that there was no duty for the officers to retreat and that the suit was barred by decedent’s comparative fault, and the Court of Appeals affirmed.
After first affirming a hearsay ruling, the Court looked at whether there was a duty that was breached in this case. Plaintiff alleged that a special duty of care arose because the officers were reckless in their attempt to serve the warrant, and that the internal policies placed a duty to withdraw on the officers.
The parties agreed that defendant owed a duty to the public at large, and 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). The issue in this case was whether a special duty exception applied here to remove immunity, and the special duty in question was based on plaintiff’s allegation that the “cause of action involv[ed] intent, malice or reckless misconduct.” (internal citation omitted). Essentially, liability here “hinge[d] upon Plaintiff’s contention that Defendant’s police officers acted recklessly by not abiding by the internal [police department] policies.”
In affirming dismissal of this case, the Court of Appeals first noted that the internal policies cited by plaintiff applied to “mentally ill individuals.” While the note on decedent’s arrest warrant stated that he might act paranoid, the Court noted that plaintiff offered “no expert proof to establish how or to what extent [the policy] applied to this case,” and the Court pointed out that it was undisputed that decedent had never been diagnosed with or treated for any mental illness. Accordingly, the Court held that plaintiff had not shown that the internal policy he relied upon was applicable.
Plaintiff alternatively argued that the officers recklessly failed to call in a SWAT team based on an internal policy about persons barricaded with a firearm. The Court pointed out that there was no evidence that the officers knew decedent had a gun and that the officers had no reason to believe this was a high risk situation, especially since decedent had been arrested three times recently without incident. In addition, even if back up had been called, the officers would still have maintained a perimeter around the property and held their posts near the back door. The Court noted that plaintiff had no expert proof regarding the officers’ conduct and no authority for creating a duty based on these internal policies. Summary judgment was thus affirmed.
In addition to affirming summary judgment based on a lack of duty, the Court of Appeals also affirmed the comparative fault finding of the trial court. The Court held that “no reasonable person could find that Decedent, a competent person with notice that police were attempting to serve a warrant upon him, was less than 50% at fault for his injuries” when he exited his back door and raised a gun at a police officer.
The facts of this case were not on plaintiff’s side. Proving that police officers breached a duty when decedent pointed a gun at them would be quite the task under any circumstances, and attempting to do so without expert testimony or evidence that decedent had a mental illness led to summary judgment for defendant.
NOTE: to aid lawyers in giving clients guidance about how long it takes to receive an opinion after oral argument in the appellate courts, we are going to start sharing that information with readers. Please understand that the length of time that elapses between oral argument and the date the opinion is released is dependent on a multitude of factors, not the least of which is the complexity of the issues presented. In this case, the opinion was released about five months after oral argument.