Wednesday, December 23, 2020

More Public Duty Cases: Kimble and Lawson

 The Tennessee Court of Appeals has, over the last week or so, decided a couple of cases involving the public duty doctrine here in Tennessee. Kimble v Dyer County involved a traffic accident where a tree had fallen across the highway blocking the westbound lane and the plaintiff sustained injuries when his vehicle collided with the tree. The weather was bad that evening which contributed to the accident.

In Lawson v Maryville City Schools, the plaintiff tripped and fell near the entrance to the Maryville High School on a defect in the sidewalk.

There was no liability in Kimble based on the application of the public duty doctrine, but the doctrine did not apply in Lawson.. We will discuss each case briefly and also turn to a consideration of an older case here in Tennessee where the public duty doctrine did not prevent the imposition of liability in the application of building code issues.

In Kimble, the highway where the accident took place was a state highway and so the county was not responsible for maintenance. However, since a sheriff’s deputy was alerted to the presence of the obstruction on the highway, and because he went to the place on the highway where the tree had fallen, and later left, the plaintiffs argued that there was a special duty owed to the plaintiff. As the Court of Appeals explained, the public duty doctrine is a common-law defense shielding public employees from suits for injuries caused by the employee’s breach of a duty owed to the public at large rather than to the individual plaintiff. It likewise shields local governments from such liability.

However, Tennessee recognizes (as do all states which apply the doctrine) an exception to this immunity where there’s a special relationship between the plaintiff and the public employee which might create a special duty more specific to the plaintiff than the duty owed by the employee to the public at large. Importantly, this special duty may arise when public officials affirmatively undertake to protect the plaintiff and the plaintiff relies upon that undertaking; or where a statute specifically provides for a cause of action against an official; or where the plaintiff alleges intentional, malicious, or reckless misconduct.

Kimble relied on the first and third exceptions arguing that there was a special duty of care and that by abandoning the scene of the accident without providing any warning of the downed tree, the deputy was reckless.

The first exception was disposed of easily. Relying on the Tennessee Supreme Court case Ezell v Cockrell, 902 S.W. 2d 394 (Tenn. 1995), where the doctrine was most recently addressed in comprehensive fashion, but which also involved a traffic accident, the court found no special duty of care existing between the deputy and the plaintiff because it could just have easily been other travelers on the highway. In other words, the duty was to the general public and not to the specific individual.

With regard to the allegation of reckless misconduct, the Court of Appeals found that the allegation that the deputy was reckless in failing to place some sign or signal of a hazardous situation did not rise to level of a gross or reckless deviation from the standard of reasonable care. This conclusion seems more difficult.

However, based on that conclusion, there was no liability on Dyer County.

Whereas the Kimble case I think is a close one, the public duty doctrine certainly should not apply in the Lawson case. As I mentioned above, Lawson tripped and fell outside the public high school. This was a public sidewalk. Therefore the provisions of the Tennessee Governmental Tort Liability Act, Tenn. Code. Ann. § 29-20-203 apply. If the government owns or controls the location which caused the injury and the location is defective or unsafe, and the government has constructive or actual notice of the condition, there is liability under the TGTLA. That is certainly the case in Lawson. Although the public duty doctrine survived passage of the tort liability act, with its enactment, the Tennessee General Assembly expressed its clear intent to limit the scope of the doctrine by removing immunity for certain types of claims including specifically the claim in the Lawson case: a claim based on ownership or control of a particular property and the failure to keep it in good condition. Therefore, in the Lawson case, the trial court’s order dismissing the case based on the public duty doctrine was reversed and the matter remanded for further proceedings.

Let’s look at the Kimble case from the perspective of the Lawson case. Where the deputy in Kimble knew of a hazardous condition, and yet didn’t take steps to protect the general public, should there not be liability just as there was in Lawson? Do the arcane provisions of the public duty doctrine justify immunizing the county in Kimble whereas the city in Lawson had to pay damages? Does the difference in conclusion between these two cases make much sense?

Let’s bring another case into this. In Ford v. New Greater Hyde Park Missionary Baptist Church, 2007 Tenn. App. Lexis 761, while a car containing a mother and her four children was parked next to a church in Memphis, the wall of the church adjacent to the car collapsed, crushing the car and killing four of the occupants. One of the children survived. Suit was brought against the city of Memphis and others. Memphis defended in part on the basis of public duty doctrine. This time, the gross or reckless misconduct prong of the special duty exception to the public duty doctrine applied:

[The building inspector] reason to believe that the Church was in danger of imminent collapse. Nevertheless, Newson allowed the December 15, 2001 rehabilitation target date to pass without demanding an engineer's report on the structural integrity of the building or issuing a "Do Not Occupy" warning. After the rehabilitation target date passed, another seven months elapsed before the Church collapsed; in that time, the City took no protective action on a building that had been identified as possibly having serious structural problems. These factual allegations are sufficient to permit a finding that the City consciously disregarded a substantial and unjustifiable risk "of such a nature that its disregard constitutes a gross deviation" from the standard of ordinary  care, and would therefore fall within the reckless misconduct prong of the special duty exception to the public duty doctrine. Therefore, to the extent that the Plaintiffs allege conduct by City officials that could be deemed reckless, the City is not immune from liability under the public duty doctrine.

I will make two points with regard to the Ford case. First, it seems to me that making judgments about the relative structural stability of properties is difficult enough as it is, without the added impact of imposing tort liability on governmental inspectors. The TGTLA immunizes inspectors arising out of the failure to make an inspection, or by reason of making an inadequate or negligent inspection of any property.  T.C.A. § 29-20-205(4). The court concluded that liability was not sought based on the inspection; the inspection had been done correctly. It was the subsequent enforcement of the code (or lack thereof) which led directly to liability. But isn’t the court being a little narrow about its interpretation of the TGTLA? The act not only immunizes governmental employees from negligent inspections, but also from the failure or refusal issued building permits and against claims of malicious prosecution and abuse of process. It certainly sounds as though the General Assembly intended to immunize governmental officials in this area of codes enforcement, which is a difficult realm of government enterprise under any circumstances.

The second point about the Ford case is to juxtapose it to Kimble. If the building inspector in Ford did a correct inspection, found the violations, concluded that there was imminent danger, but nevertheless failed to follow up and enforce the provisions of the code, does not that same series of actions apply to the deputy in Kimble? The deputy found the downed tree, recognized the danger posed, and yet nevertheless did not put up any signal indicating a hazardous condition and based on the complaint simply left that area the highway and the accident took place shortly thereafter. There does not seem to be much distinction between the two cases. So why is there liability on the codes inspector but not on the deputy?

From my perspective, the public duty doctrine, while it certainly enhances the potential defenses for various public officials including codes enforcement officials, is no substitute for clear and specific legislative provisions precluding liability against public officials acting in this area. 

Tuesday, December 8, 2020

Griffin v. Bd. of Zoning Appeals for Rutherford Cty., 2020 Tenn. App. Lexis 429

 This case involves a small business operating out of the owner’s home in Murfreesboro. After a zoning enforcement action was brought against the owner, he filed for a special exception to operate a major home-based business. The property is zoned residentially, is bordered by other single-family homes located in a cul-de-sac.

Approximately 20 neighbors appeared in opposition at the board of zoning appeals and based both on the neighbors’ testimony as well as the staff report, it appeared that a significant number of trucks and business vehicles operated from the residential property, that there was a considerable amount of noise both early in the morning and late evening, the number of employees and vehicles exceeded what was permitted by the specific conditions for the special exception, and the general incompatibility of this fairly significant business in a quiet residential neighborhood.

The zoning board denied the special exception for three reasons, first because of the general incompatibility of the neighborhood; its potential adverse effect on the neighborhood and finally because they were more employees and permitted by the specific conditions.

The trial court upheld the decision of the board of zoning appeals and the Court of Appeals affirmed.

This is a pretty simple case in that clearly the application did not comply with the specific conditions of the provisions in the ordinance relating to a major home-based business. However, I think it is important to distinguish between general conditions and specific conditions when dealing with a special exception. For the most part, general conditions are so general that it is difficult to apply them with any precision. That’s why at least one court in Tennessee has previously held that the general conditions are largely irrelevant in consideration of a special exception or conditional use permit case. In fact, the general conditions in the Rutherford County ordinance are pretty similar to virtually all other general conditions which I see herein the middle section of Tennessee and read as follows:

C. General Requirements

A special exception shall only be granted provided the Board makes specific findings that it:

1. Is so designed, located, and proposed to be operated so that the public health, safety and welfare will be protected;

2. Will not adversely affect other property in the area in which it is located;

3. Conforms to all applicable provisions of this ordinance for the district in which it is to be located and is necessary for public convenience in that location and if applicable, meets the specific standards below.

4. Shall be located so as to be compatible with the surrounding area and provide safety to those using the facility.

In this instance, the intensity of this home-based business clearly is incompatible with residential uses. It would also have an adverse effect on the other property in the area. But while that is true in this instance, in many cases, those two requirements are so vague as to prove impossible to apply. In most of the special exception cases I’ve tried over my many years in practice, those general conditions are simply not very helpful. Take a quick example. Suppose you have an unusual activity such as a landfill or a rock quarry. Are those ever compatible the surrounding area and will they always adversely affect other properties? Nevertheless, in a special exception case, the local legislative body has indicated that those types of uses can be in certain zoning districts subject to meeting the requirements associated with that special exception. To use general conditions that are so vague as to defy specific application simply begs for the zoning board to make decisions based not on specific requirements but on things that may have no relevance to the land use application.

On the other hand, the next section of the Rutherford County zoning ordinance provided a specific limit on the number of employees and on the number of business vehicles. The applicant was already in operation and had too many employees and too many vehicles. The application therefore did not comply and while it is certainly easy and seems reasonable to point to the fact that the general conditions appear also to be violated, it seems to me far better to emphasize the violation of the specific conditions contained within the ordinance.

Monday, December 7, 2020

Manchester Hotel v City of Manchester (Tenn. App. November 30, 2020)

 In another case involving the complexities of the common law writ of certiorari, an appeal was taken from a decision of the municipal board of zoning appeals granting a variance. At the board hearing, the codes director checked the box indicating that the variance had been approved, but without any signature. At the next meeting, on October 15, 2018, the board approved the minutes from the previous month.

Two companies that opposed the variance filed a petition for writ of certiorari on November 16, 2018 and an amended petition with a sworn verification on December 5, 2018 (presumably the original petition lacked a verified signature and so was deficient in that regard). The defendants filed a motion to dismiss for lack of subject matter jurisdiction arguing that the checked box was a sufficient written confirmation of the action of the zoning board such that the appeal should have been taken within 60 days of the original meeting at which the decision was made (September 17, 2018). Of course, Tenn. Code. Ann. § 27-9-102 requires that the appeal be filed within 60 days of the decision.

The question presented here is whether the decision was appropriately memorialized by the checked box, or by the minutes adopted on October 15. If the former, then more than 60 days had gone by since the box was checked; if the latter, the appeal was timely filed.

The trial court granted the motion to dismiss but the Tennessee Court of Appeals reversed concluding that the checked box was insufficient to begin the 60 day statute of limitations. 

The defendants relied on Advanced Sales v Wilson County, 1999 WL 336305 (Tenn. App., May 28, 1999) as being very similar factually. This is a case decided by my good friend Judge Ben Cantrell, and even though I have only the highest respect for the judge and most of his decisions while on the bench, this is one that I’ve never been very comfortable with. In that case, the petition submitted to the zoning board itself had a section specifically set aside to show what action was taken by the board. In that case, the board secretary circled the entry “Relief Denied” and then signed the form. The plaintiffs argued that the signature of the board secretary in Advanced Sales clearly distinguish the facts in that case from the case under review. There was no signature of anyone on the form only a checked box.

The plaintiffs argued in turn that the most similar case was McMurray Drive Area Homeowners Association versus Metro Nashville, 2006 WL 1026428 (Tenn. App. April 18, 2006), where an administrative assistant took notes during the course of the meeting and recorded the motions, votes and decisions, but again without any signature. In the McMurray Drive case, the Court of Appeals distinguished those notes from the actual minutes approved by the Planning Commission which were not only signed by both the Chair and the Secretary of the commission, but also indicated the resolution number and the specific conditions of the approval. Although the trial court had granted the motion to dismiss, ruling that the administrative assistant’s notes were sufficient, the Court of Appeals reversed and remanded.

And so too did the Court of Appeals in this case. Without a signature, or perhaps without some other indication of authenticity, a simple checked box is insufficient to treat as a final entry. This is perhaps particularly true when a month later, the official minutes were adopted by the Board of Zoning Appeals.

Although I have said it many, many times now, it bears repeating once again: if you are appealing an administrative decision such as the zoning board decision in this case, the petition must be verified and it is always best to file within 60 days of the date of the hearing where the decision was announced. In this case, the original petition was filed on the 60th day after the original hearing, but unfortunately, the attorneys evidently had not remembered to verify the allegations of the petition. Fortunately, because the minutes were not approved until the next meeting, they had additional time to obtain a verified signature and to file the amended petition.

Finally, let me make one other note: why is it important that a verified petition be filed? The short and simple answer to that is that from a policy standpoint it is not important. The common law writ of certiorari is an antiquated form of pleading which should be retired, at least in the context of land use planning law cases. But many cities oppose going to a different form of an appeal and a land-use planning case, because it would deprive the city of the opportunity to dismiss many cases where the technical pleading rules have not been met. I can’t emphasize too much how unfair this is: property owners get thrown out of court because legal counsel makes a mistake filing a pleading, either too late, or unverified, when the verification requirement simply is unnecessary. Most of the cases which were appealed from zoning boards, planning commissions, and municipal legislative bodies do not involve significant disputes as to the facts. Thus verification of those facts is unnecessary. Most land-use planning cases involve questions of how the law applies to those facts and requiring verification does not advance the decision-making process with regard to the interpretation of the law one iota.

In any event, if you represent a client interested in appealing a land-use decision, be certain that the petition for writ of certiorari is verified properly, and that is filed within 60 days of the decision of the administrative tribunal. The best procedure is to file within 60 days of the meeting where the decision was announced without waiting for minute entries or the entry of some kind of an order.