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.