Candace Young v. Washington County, Tennessee

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

July 11, 2012 Session

CANDACE YOUNG v. WASHINGTON COUNTY, TENNESSEE

Appeal from the Circuit Court for Washington County

No. 10195C Thomas J. Seeley, Jr., Judge

No. E2011-02189-COA-R3-CV-FILED-OCTOBER 29, 2012

The plaintiff, a probationer, charged Washington County with negligent oversight and

supervision, after she was sexually assaulted and raped by a private entity’s probation officer.

The trial court ruled in favor of the county, and the plaintiff appeals. We affirm the judgment

of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed; Case Remanded

J OHN W. M CC LARTY, J., delivered the opinion of the court, in which C HARLES D. S USANO,

J R., and D. M ICHAEL S WINEY, JJ., joined.

Tony Seaton and Robert Bales, Johnson City, Tennessee, for the appellant, Candace Young.

John Rambo, Jonesborough, Tennessee, for the appellee, Washington County, Tennessee.

OPINION

I. BACKGROUND

Michael Moore, currently 63 years of age, started his probation career in July 1997,

with Mid South Court Services/Comprehensive Community Services (“CCS”). Moore

worked for probation agencies in Washington County (“the County”) for twelve years prior

to the incident at issue.1 In 2007, one of the general sessions judges in the County, the

1

According to the materials in the record, prior to becoming a probation officer, Moore was in the

Air Force for 26 years. He retired as a Senior Master Sergeant/First Sergeant, 81st Security Police Forces,

(continued...)

Honorable James Nidiffer, purportedly encouraged Moore and another probation officer to

start their own agency. Subsequently, Judge Nidiffer signed a written “Probation Proposal”

prepared by Moore and his partner. Moore then retained an attorney to organize the

company, Washington County Probation Agency, LLC (“WCPA”). Regarding WCPA,

Moore testified in his deposition as follows:

Q. Tell me what you did after you have the LLC Incorporated and did the

appropriate legal documents like that?

A. Well, this was, I, I remember asking [the attorney] once, once we got the

paperwork back from, the Secretary of the State, if there was anything else that

I had to do. And he said, no, this, this is it, you’re, you’re good to go. . . .

On June 26, 2007, Judge Nidiffer sent a letter to all probation agencies in the County that he

would exclusively assign all of the cases from his court to WCPA. The new agency started

on July 1, 2007, and probation files previously assigned to Moore and his partner simply

transferred from their prior private probation agency to WCPA. It is undisputed that no one

associated with the County checked to see whether WCPA was licensed with the Tennessee

Private Probation Council (“the Council”).

In March 2008, the plaintiff, Candace Young, then 19 years old, pled guilty to

misdemeanor shoplifting in Judge Nidiffer’s court. She was sentenced to probation services

and assigned to WCPA. Moore became Young’s probation officer, and she began her

monthly reporting to him in June 2008. After a probation meeting on January 22, 2009,

Young alleged that she had been sexually assaulted and raped by Moore.

In March 2009, Moore, on behalf of WCPA, petitioned the Council for licensure. The

application was denied in June 2009.

Young filed her complaint in this matter on June 8, 2009. She named as defendants

1

(...continued)

Keesler Air Force Base, Mississippi. By deposition, Moore related that he has an Associate’s Degree in

Administrative Management from the Community College of the Air Force and attended numerous schools

while in the military. In paperwork associated with the probation agency, Moore asserted that he had over

20 years experience working within the Military Justice System as a Supervisor, Superintendent, Instructor

and First Sergeant. He noted that he is a graduate of the U.S. Air Force NCO Academy and U.S. Air Force

First Sergeant Academy.

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the County, Moore,2 and WCPA.

In her complaint, Young alleged that the County’s immunity under the Governmental

Tort Liability Act, Tennessee Code Annotated section 29-20-201, et seq., was removed for

her injuries that were proximately caused by the negligent acts or omissions of Judge Nidiffer

within the scope of his employment.3 She argued that the County failed in its duty “to

protect probationers under the[ ] supervision” of the court, and that the County “knew or

should have known that private probation services are required to be license[d] by the

Tennessee Private Probation Services Coun[cil].” She claimed that Judge Nidiffer assigned

her to the supervision of WCPA without knowledge or concern whether the agency was

legally operating, and that her injuries were a foreseeable consequence of the County’s

failure to investigate and supervise the private probation agencies operating in the County,

resulting in her being subjected to the supervision of an unlicensed private probation agency

where she was injured.

The trial was conducted on August 8, 2011. Before the trial commenced, Young

entered into an order of dismissal with prejudice as to Moore and WCPA. The County

remained as a defendant.

Testifying by deposition, Judge Nidiffer indicated that while he was aware there are

certain guidelines that must be followed for private probation agencies, he was not aware the

state had enacted regulations regarding licensure by the Council. In regard to the start up of

WCPA, he related he told Moore “that he needed to get a lawyer, and see if it was possible

for [Moore] to [start a probation agency] . . . .” Judge Nidiffer admitted that he never asked

if WCPA was licensed, but opined that it was not his responsibility.

At the time of trial, Donna W. Hancock served as the Executive Director of the

Council, an agency within the Department of Commerce and Insurance of the State of

Tennessee. Hancock observed that the Council serves to regulate private probation agencies,

and has the authority to revoke the licenses of such agencies and to levy civil penalties. She

testified that “[n]o private entity may provide probation services in this State unless it has

registered with and is approved by the Council.” Hancock stated that the rules of the Council

became effective in 2005. According to Hancock, it is the responsibility of those who assign

2

On May 15, 2009, Moore was criminally charged with one count of rape and one count of sexual

battery. See State v. Michael Moore, No. 35288 (Washington County). According to Moore, he entered an

Alford plea in the case on April 20, 2010.

3

Young noted she did not sue Judge Nidiffer in his individual or official capacity. We note that

Tennessee Code Annotated section 40-35-302 does not give a judge of a sessions court the authority to

contract for probation services.

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cases to probation officers to ensure that they are licensed. Hancock related that the Council

did not have any knowledge of WCPA’s existence until it received the agency’s application.

Hancock testified that WCPA was denied a license because of a deficiency in Moore’s

education and bond. She opined that Moore’s experience and his associate’s degree may

have been sufficient to meet the requirement of the four-year degree requisite for a CEO,

especially since past experience in an organization providing services in criminal justice or

social work may be substituted for the bachelor’s degree. She noted that although WCPA’s

bond was in the correct amount, it lacked an expiration date.

As part of WCPA’s application, Moore had submitted his background check. As

verified by the Tennessee Bureau of Investigation, it indicated no criminal history. Hancock

testified that Moore’s credentials, at that point in time, qualified him to work as a probation

officer. While the licensing process was pending, the Council learned from a media outlet

of Moore’s indictment on charges of rape and sexual battery of a client. The Council

subsequently directed the issuance of a cease and desist order to WCPA “for operating an

unlicensed agency.” 4

Hancock acknowledged that no rule or regulation specifically requires judges or

counties to verify the licensing of private probationary agencies with the Council. She

testified further that since her employment, no communication had been sent from the

Council to the state’s trial judges alerting them of the requirement that private probation

services be licensed and registered with the Council. She observed that the Council was

concerned that judges in the state were not aware of the licensing requirements.5

Additionally, she noted that her office does not solicit reports from the trial courts inquiring

about private probation activity in the counties.

At the close of Young’s case, the trial court granted the County’s motion for

involuntary dismissal. In the final judgment entered on September 29, 2011, the trial court

held “[t]he injuries suffered by Plaintiff, Candace Young, were not proximately caused by

the Defendant, Washington County’s failure to follow or enforce the licensing process . . .

.” The judgment incorporated the ruling from the bench:

THE COURT: All right. Basically, this is a negligence case. . . . [T]he

4

It is unclear whether the letter was sent.

5

The minutes of the Council also note that “Judge Chris Craft asks that a letter be sent to all the

General Sessions Judges in the State stating that it is illegal to assign cases to unlicensed private probation

entities.”

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question is to me -- was there a breach of duty and which proxima[te]ly caused

injury to Ms. Young? And you -- you know we’re all familiar with the

elements of negligence. There’s a duty, a breach, proximate cause, and now

they say also legal cause, and then damages. And the key to proximate cause

really is the question -- foreseeability. And the question in this case seems to

me to be was it foreseeable to Judge Nidiffer that any failure on his part to

determine that Michael Moore and his agency -- the Washington County

Probation Agency -- was licensed, would result in Ms. Young or any other

probationer being sexually assaulted by Mr. Moore. It’s another way of

putting it -- is there anything in the licensing process that would have alerted

Judge Nidiffer to the likelihood that Mr. Moore would sexually assault a

probationer? And it really does come down to -- should Judge Nidiffer have

known that Mr. Moore had some propensity or there was some real risk that

Mr. Moore would sexually abuse a probationer, basically as a result of his not

being licensed. We know that Mr. Moore worked for CCS -- a probation

agency -- for some eleven years. There’s nothing in the record to indicate that

he had any prior problems assaulting anybody, whether sexual or otherwise.

There’s nothing that would indicate he had been guilty of any violent acts

toward anyone or property prior to his being authorized by Judge Nidiffer to

accept probationers. . . .

In the record before this Court, there is nothing to indicate -- that would have

indicated to Judge Nidiffer that Michael Moore had any propensity to sexually

assault Ms. Young. There’s nothing that this Court could find that was in the

licensing process . . . that would have alerted Judge Nidiffer to the likelihood

that Mr. Moore would sexually assault a probationer. For all these reasons, the

Court has to find in favor of the Defendant, Washington County. In addition,

I am also of the opinion that Judge Nidiffer probably has judicial immunity in

this. I was looking at judicial immunity, which was raised initially, but it also

says with respect to that, “In determining whether or not there’s judicial

immunity for an act of a Judge and the Judge therefore be given absolute

immunity you generally consider four factors. (1) Whether the precise act

complained of is a normal judicial function or whether the act is normally

performed by a Judge.” Well, we know that the Judges decide who’s going to

probation in their courts. “(2) Whether the act occurred in the courtroom or

appropriate adjunct spaces such as the Judge’s chambers.” Well, basically he

appointed Moore and his agency in the courtroom, and I don’t know where he

actually signed the proposal, but that’s basically a judicial act. “(3) Whether

the controversy centered around a case pending before the Court.” Well,

we’ve got Ms. Young’s case. “(4) Whether the parties dealt with the Judge,

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or the acts, or was directly out of visit with the Judge in his or her official

capacity.” Well, we know that he met with Mr. Moore and talked to Mr.

Moore about appointing him as a probation officer, and Judge Nidiffer was

acting in his judicial capacity. So I think Judge Nidiffer in all likelihood

enjoyed judicial immunity in this, even if he made a wrong decision or omitted

to make a decision he should have made. But in any event, [Young] ha[s]

failed to prove proximate cause that any action by Judge Nidiffer proximately

caused the assault on Ms. Young. . . .

Young filed a timely notice of appeal.

II. ISSUES

The issues raised by Young are restated as follows:

1. Did the trial court err by finding that the County was not liable for its

failure to investigate and supervise WCPA.

2. Did the trial court err in finding that the County’s breach of its duty was not

a proximate cause of Young’s injuries.

3. Did the trial court err by limiting its holding only on the actions of Judge

Nidiffer, rather than evaluating the negligence and failures of others in the

County.

4. Did the trial court err in applying a more restricted foreseeability test than

what is required by case law in this state.

III. STANDARD OF REVIEW

In a civil case heard without a jury, we review the trial court’s factual findings de

novo upon the record accompanied by a presumption of correctness unless the preponderance

of the evidence is otherwise. See Tenn. R. App. P. 13(d). With respect to legal issues, this

court’s review is de novo with no presumption of correctness. Graham v. Caples, 325

S.W.3d 578, 581 (Tenn. 2010). The construction of statutes and rules and regulations, along

with their application to the facts, are questions of law reviewed by us without a presumption

of correctness. Gautreaux v. Internal Med. Educ. Found., Inc., 336 S.W.3d 526, 531 (Tenn.

2011).

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This cause was dismissed after the close of Young’s case. The trial court granted a

Rule 41.02 involuntary dismissal (“After the plaintiff in an action tried by the court without

a jury has completed the presentation of plaintiff’s evidence, the defendant, without waiving

the right to offer evidence in the event the motion is not granted, may move for dismissal on

the ground that upon the facts and the law the plaintiff has shown no right to relief . . . If the

court grants the motion for involuntary dismissal, the court shall find the facts specifically

and shall state separately its conclusion of law and direct the entry of the appropriate

judgment.”).

Under a Rule 41.02(2) motion, “the trial judge must impartially weigh and evaluate

the evidence in the same manner as though he were making findings of fact at the conclusion

of all of the evidence for both parties, determine the facts of the case, apply the law to those

facts, and, if the plaintiff’s case has not been made out by a preponderance of the evidence,

a judgment may be rendered against the plaintiff on the merits.” City of Columbia v. C.F.W.

Constr. Co., 557 S.W.2d 734, 740 (Tenn. 1977). “If a plaintiff’s case has not been

established by a preponderance of the evidence, then the case should be dismissed if the

plaintiff has shown no right to relief on the facts found and the applicable law.” Bldg.

Materials Corp. v. Britt, 211 S.W.3d 706, 710-11 (Tenn. 2007).

When the trial court has seen the witnesses and heard the testimony, especially when

issues of credibility and the weight of testimony are involved, we must extend considerable

deference to the trial court’s findings of fact. Houser v. Bi-Lo, Inc., 36 S.W.3d 68, 71 (Tenn.

2001). However, we are in the same position as the trial judge in evaluating proof that is

submitted by deposition, and may independently assess the weight and credibility of such

testimony. Richards v. Liberty Mut. Ins. Co., 70 S.W.3d 729, 732 (Tenn. 2002).

IV. DISCUSSION

Young argues that the County was responsible for ensuring that the laws of this state

regarding private probation agencies were satisfied. She contends that the County failed to

determine whether WCPA had been approved by the Council and failed to investigate and

supervise the entity. She asserts that as a direct and proximate result of the County’s breach,

she was injured.

An initial issue to address is whether the County is immune from suit pursuant to the

discretionary function exception in the Tennessee Governmental Tort Liability Act (“the

GTLA”).

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TENNESSEE GOVERNMENTAL TORT LIABILITY ACT

County liability is addressed in the GTLA, Tennessee Code Annotated sections 29-20-

101, et seq. The GTLA removes county governmental immunity for certain negligent acts

of its “employees.” The GTLA defines the term “employee” as follows: “Employee means

and includes any official whether elected or appointed . . . of a governmental entity . . . .”

Tenn. Code Ann. § 29-20-102(2). Thus, a general sessions judge would be an “employee”

of his or her county within the meaning of the GTLA. See State ex rel. Winstead v. Moody,

596 S.W.2d 811, 813-14 (Tenn. 1980).

Pursuant to Tennessee Code Annotated section 29-20-201, governmental entities are

immune from suit for injuries arising from activities “wherein such governmental entities are

engaged in the exercise and discharge of any of their functions, governmental or proprietary.”

Tennessee Code Annotated section 29-20-201 codifies the common law rule that “all

governmental entities shall be immune from suit for any injury which may result from the

activities of such governmental entities.” Thus, the GTLA forecloses suits against

governmental entities that cause injury when exercising or discharging their duties.

Exceptions are outlined at Tennessee Code Annotated section 29-20-205. The exceptions

permit a suit against a governmental entity when an employee of that entity acting within the

scope of his or her employment negligently causes injury to another. A governmental entity

remains immune from suit, however, if the injury results from a discretionary act of the

governmental entity regardless of whether that discretion was abused. Tenn. Code Ann. §

29-20-205(1).

In Moore v. Houston County Board of Education, 350 S.W.3d 612 (Tenn. Ct. App.

2011), a panel of this court recently addressed the case law on this issue:

The TGTLA does not define the term “discretionary function.” See Lucas v.

State, 141 S.W.3d 121, 128 (Tenn. Ct. App. 2004). However, our Supreme

Court, in Bowers v. City of Chattanooga, 826 S.W.2d 427 (Tenn. 1992),

adopted the planning-operational test to assist courts in analyzing whether the

negligent act or omission of a governmental entity is a discretionary function.

Bowers, 826 S.W.2d at 430-31. Under the planning-operational test, courts are

to distinguish governmental acts that are performed at the “planning” level

from those performed at the “operational” level:

decisions that rise to the level of planning or policy-making are

considered discretionary acts which do not give rise to tort

liability, while decisions that are merely operational are not

considered discretionary acts and, therefore, do not give rise to

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immunity.

Bowers, 826 S.W.2d at 430.

***

Our Supreme Court applied the planning-operational test in Limbaugh v.

Coffee Medical Center, 59 S.W.3d 73 (Tenn. 2001), to determine whether a

nursing home’s failure to follow employee disciplinary guidelines was a

discretionary function for which immunity was available under the TGTLA.

In Limbaugh, a nursing assistant employed by a state nursing home physically

assaulted and seriously injured Mrs. Limbaugh, a ninety-year-old resident at

the facility. Prior to assaulting Mrs. Limbaugh, the employee had

demonstrated a propensity for violence toward patients. The administrator of

the nursing home testified that the home had standards for disciplining an

employee who had exhibited combative behavior; the Court found that the

standards were not followed in the case of the employee who assaulted Ms.

Limbaugh. In analyzing whether the nursing home’s failure to implement its

disciplinary policy was a discretionary function, the Court discussed the

planning-operational test and noted:

Decisions that rise to the level of planning or policy-making are

considered to be discretionary acts requiring judicial restraint

and are, therefore, not subject to tort liability. On the other

hand, decisions that merely implement preexisting policies and

regulations are considered to be operational in nature and

require the decision-maker to act reasonably in implementing

the established policy. If the policy, regulation, or other

standard of procedure mandates specific conduct, then any

employee reasonably complying with that direction will not

abrogate the entity’s immunity if the action furthers the

underlying policies of the regulation.

Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 85 (Tenn. 2001) (citing Chase

v. City of Memphis, 971 S.W.2d 380, 384 (Tenn. 1998)). The Court ultimately

reasoned that because the nursing home “negligently failed to follow the

guidelines designed to prescribe the proper disciplinary measures to impose,”

the discretionary function did not bar recovery. Id. at 85-86.; see also Haney

v. Bradley Cnty. Bd. of Educ., 160 S.W.3d 886, 900 (Tenn. Ct. App. 2004)

(finding that the failure to implement an early-dismissal policy adopted by the

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board of education was an operational decision not a discretionary decision).

...

Moore, 358 S.W.3d at 616-617.

In Giggers v. Memphis Housing Authority, 363 S.W.3d 500 (2012), the Tennessee

Supreme Court recently reviewed the planning-operational test:

To determine whether a governmental entity is entitled to immunity for a

discretionary decision, this Court applies the “planning-operational test.”

Bowers v. City of Chattanooga, 826 S.W.2d 427, 430 (Tenn. 1992). A

governmental entity is immune from suit for actions involving “planning or

policy-making.” Helton v. Knox Cnty., 922 S.W.2d 877, 885 (Tenn. 1996)

(quoting Bowers, 826 S.W.2d at 430). When the act is merely “operational,”

the entity is not immune. Id.

In Bowers, we determined that a planning decision usually involves

consideration and debate regarding a particular course of action by those

charged with formulating plans or policies. Bowers, 826 S.W.2d at 431; see

also Helton, 922 S.W.2d at 885. A planning decision frequently requires a

governmental entity to create policies or plans, formulate specifications or

schedules, allocate resources, or determine priorities. Bowers, 826 S.W.2d at

431. Planning or policy-making decisions are not subject to tort liability, and

a review of these decisions requires judicial restraint. Limbaugh, 59 S.W.3d

at 85.

Operational decisions, however, implement “preexisting laws, regulations,

policies, or standards” that are designed to guide the actions of the

governmental entity. Bowers, 826 S.W.2d at 431. An operational decision

requires that the decision-maker act reasonably when implementing preexisting

policy. Limbaugh, 59 S.W.3d at 85. Unlike a planning or policy-making

decision, an operational decision does not involve the formulation of new

policy.”

Id. at 507-08.

This state’s legislature has spoken on the issue of private probation services. We find

the legislation instructive.

Pursuant to Tennessee Code Annotated section 40-35-302 (misdemeanor sentencing),

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a court may order an eligible defendant placed on probation to be supervised by a private

agency that has been established for the purpose of supervising defendants convicted of

misdemeanors. Tenn. Code Ann. § 40-35-302(f). Under Tennessee Code Annotated section

40-35-302(f), the judge clearly has the discretion to choose which agency will supervise a

defendant.6 Subsection (g) of that statutory provision sets out the qualifications that an entity

supervising misdemeanor probationers must meet. Tennessee Code Annotated section 40-

35-302(g)(1)(A) states that a private entity providing probation services shall be required to

perform all of the following:

(i) Provide a report to the clerk of the criminal court and general sessions

court in each judicial district in which the entity proposes to provide

misdemeanor probation services on a quarterly basis in a form and manner as

is specified by the clerk . . . ;

(ii) Provide an application form to all of the criminal court and general

sessions court judges in each judicial district in which the entity proposes to

provide misdemeanor probation services. The application shall be on a form

and in a manner specified by the judges and shall contain all of the information

required by subdivision (g)(1)(E)

***

Tennessee Code Annotated section 40-35-302(g)(1)(B) sets out

[t]he following minimum education standards . . . required for certain

employees of an entity established for the purpose of supervising misdemeanor

probationers:

(i) The chief executive officer of an entity offering probation

supervision shall have a bachelor’s degree from an accredited

university in any of the following fields: criminal justice,

administration, social work or the behavioral sciences and two

(2) years of experience in criminal justice or social work;

6

The Code of Judicial Conduct in Canon 3 provides that “referrals shall be made impartially and on

the basis of merit” and that “[a] judge shall avoid . . . favoritism . . . .” Tenn. Sup. Ct. R. 10, Canon 3(C)(5).

A 2008 opinion of the Tennessee Attorney General provides that “where a judge harbors a good-faith belief

that one such service is superior to another, considerations of merit may result in some companies receiving

more business than others. Disproportionate referrals based on simple favoritism, however, run counter to

the Code of Judicial Conduct.” Opinion No. 08-175 (Nov. 18, 2008).

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provided, that four (4) years of professional administrative

experience with an organization providing services in criminal

justice or social work may be substituted for the bachelor’s

degree; and

(ii) An employee responsible for providing probation

supervision and employed by an entity shall have at least four

(4) years of experience in a criminal justice or a social services

agency providing counseling services or shall have a bachelor’s

degree or associate’s degree from an accredited college or

university . . . .

The implementing regulations of Tennessee Code Annotated section 16-3-909 set

forth certain requirements that private entities must satisfy in order to provide probation

services in this state. See Tenn. Comp. R. & Regs. 1177-1-.03. Within Title 16, Part 3,

section 909, we find the duties of the Council outlined:

(a) The purpose of the council is to ensure that uniform professional and

contract standards are practiced and maintained by private corporations,

enterprises and entities rendering general misdemeanor probation supervision,

counseling and collection services to the courts. To such end, the council

shall:

(1) Provide oversight of private entities;

(2) Promulgate uniform professional standards and uniform

contract standards for private entities;

(3) Establish forty (40) hours of orientation for new private

probation officers and twenty (20) hours of annual continuing

education;

(4) Promulgate rules and regulations regarding noncompliance

with the uniform professional standards and uniform contract

standards;

(5) Promulgate rules and regulations requiring periodic

registration of all private entities;

(6) Publish an annual summary report; and

(7) Promulgate rules and regulations requiring criminal records

checks of all private probation officers.

(b) All rules and regulations promulgated pursuant to subsection (a) shall be

promulgated in accordance with the Uniform Administrative Procedures Act

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....

Tennessee Code Annotated section 16-3-910 provides that

[t]he council has the power:

(1) To establish fees sufficient to pay the annual expenses of the

council; and

(2) In a lawful proceeding under the Uniform Administrative

Procedures Act . . . assess civil penalties, in accordance with

rules adopted pursuant to the Uniform Administrative

Procedures Act, for violations of statutes, rules or orders

enforceable by the council.

Pursuant to the statutory authority above, the Council has promulgated rules governing

private probation agencies. Pursuant to Tenn. Comp. R. & Regs. 1177-1-.03(1), a private

probation agency such as WCPA is required to register with the Council (“No private entity

may provide probation services in this state unless it has registered with and is approved by

the Council. . . .”). Tenn. Comp. R. & Regs. 1177-1-.05(1)(a) mandates that private

probation entities

[p]rovide an application form to all of the criminal court and general sessions

court judges in each judicial district in which the entity proposes to provide

misdemeanor probation services. Such application shall be on a form and in

a manner specified by the criminal court and general sessions court clerk under

the supervision of the judges and shall contain all of the following

information:

***

4. The names of the employees who will provide services, their

credentials and their position with the entity;

5. A sworn statement that the credentials of all employees meet

the minimum standards listed in rule 1177-1-.06 of this chapter;

***

9. Proof of current registration and approval by the Council

to provide misdemeanor probation services.

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(Emphasis added).7 Tenn. Comp. R & Regs. 1177-1-.05(b) notes that “[o]nce the private

entity has been approved to provide services, the entity shall supply a quarterly report to the

clerk of the criminal court and general sessions court in each judicial district in which the

entity proposes to provide misdemeanor probation services on a quarterly basis in a form and

manner specified by the clerk . . . .”

Tenn. Comp. R. & Regs. 1177-1-.06 tracks Tennessee Code Annotated section 40-35-

302 regarding the education and experience necessary for employees of a private probation

entity that provides misdemeanor probation supervision:

(a) The chief executive officer shall have a bachelor’s degree from an

accredited university in any one (1) of the following fields: criminal justice,

administration, social work or the behavioral sciences, and two (2) years

experience in criminal justice or social work. Upon approval by the Council,

four (4) years of professional administrative experience with an organization

providing services in criminal justice or social work may be substituted for the

bachelor’s degree; and

(b) Each employee who is responsible for providing probation supervision

shall have at least four (4) years of experience in a criminal justice or a social

services agency providing counseling services or shall have a bachelor’s

and/or an associate’s degree from an accredited college or university in any of

the following fields: criminal justice, administration, social work, or the

behavioral sciences.

Tenn. Comp. R. & Regs. 1177-1-.07(1) provides that “[a] registration as a private entity

expires one (1) year after the date of its issuance and becomes invalid unless renewed.”

The provisions regarding private probation agencies clearly contemplate the

involvement of county employees such as judges and court clerks.

In Brown v. Hamilton County, 126 S.W.3d 43 (Tenn. Ct. App. 2003), we held that

“[i]t is well-settled that an act or omission is considered operational and immunity is removed

when . . . the conduct deviates from an established plan or policy.” Id. at 48 (citing Chase

v. City of Memphis, 971 S.W.2d 380, 384 (Tenn. 1998); Matthews v. Pickett Cnty., 996

S.W.2d 162, 164 (Tenn. 1999). In our view, like the nursing home administrators in

Limbaugh, the County’s employees were charged with following the relevant statutes and

7

This provision tracks the language of Tennessee Code Annotated section 40-35-302, but adds the

requirement that the entity notify the appropriate court that the entity has been approved by the Council.

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rules and regulations regarding private probation services. The applicable provisions were

not followed. We find that the actions by the County regarding WCPA were not policy

decisions. Rather, the actions were operational in nature, not discretionary, and immunity

was removed. See Limbaugh, 59 S.W.3d at 85; Haney v. Bradley Cnty. Bd. of Educ., 160

S.W.3d 886, 900 (Tenn. Ct. App. 2004)..

With immunity removed, the issue becomes whether Young has proven the elements

of a negligence claim.

NEGLIGENCE

The elements of negligence that must be proved to recover based on a claim of general

negligence are as follows:

In order to establish a prima facie claim of negligence, basically defined as the

failure to exercise reasonable care, a plaintiff must establish the following

essential elements: “(1) a duty of care owed by defendant to plaintiff; (2)

conduct below the applicable standard of care that amounts to a breach of that

duty; (3) an injury or loss; (4) cause in fact; and (5) proximate, or legal cause.

Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 364 (Tenn. 2009) (quoting McCall v.

Wilder, 913 S.W.2d 150, 153 (Tenn. 1995)).

Causation, or cause in fact, means that the injury or harm would not have occurred

“but for” the defendant’s negligent conduct. See Caldwell v. Ford Motor Co., 619 S.W.2d

534, 543 (Tenn. Ct. App. 1981). As noted in Kilpatrick v. Bryant, 868 S.W.2d 594, 598

(Tenn. 1993), the Supreme Court has provided as follows:

Causation and proximate cause are distinct elements of negligence, and both

must be proven by the plaintiff by a preponderance of the evidence. Bradshaw

[v. Daniel], 854 S.W.2d at 869; McClenahan v. Cooley, 806 S.W.2d 767, 774

(Tenn. 1991); Smith v. Gore, 720 S.W.2d 738, 749 (Tenn. 1987). “Causation

(or cause in fact) is a very different concept from that of proximate cause.

Causation refers to the cause and effect relationship between the tortious

conduct and the injury. The doctrine of proximate cause encompasses the

whole panoply of rules that may deny liability for otherwise actionable causes

of harm.” King, Causation, Valuation, and Chance in Personal Injury Torts

Involving Preexisting Injuries and Future Consequences, 90 Yale L.J. 1353,

1355 n. 7 (1981). Thus, proximate cause, or legal cause, concerns a

determination of whether legal liability should be imposed where cause in fact

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has been established. McKellips v. Saint Francis Hosp., 1987 Ok 69, 741 P.2d

467 (Okl. 1987). “Cause in fact, on the other hand, deals with the ‘but for’

consequences of an act. ‘The defendant’s conduct is a cause of the event if the

event would not have occurred but for that conduct.’” Id. at 470 (quoting

Prosser and Keeton, The Law of Torts 266 (5th ed. 1984)).

Once it is established that a defendant’s negligent conduct was the actual cause of a

plaintiff’s injury or harm, the question becomes whether the policy of the law will extend

responsibility for that negligent conduct to the consequences that have occurred. “[L]egal

responsibility must be limited to those causes which are so closely connected with the result

and are of such significance that the law is justified in imposing liability. Doe v. Linder

Constr. Co., 845 S.W.2d 173, 178 (Tenn. 1992). Proximate, or legal, cause is “a policy

decision made by the legislature or the courts to deny liability for otherwise actionable

conduct based on considerations of logic, common sense, policy, precedent and our more or

less inadequately expressed ideas of what justice demands or of what is administratively

possible and convenient.” White v. Lawrence, 975 S.W.2d 525, 529 (Tenn. 1998). A three-

pronged test of proximate causation provides as follows:

(1) the tortfeasor’s conduct must have been a “substantial factor” in bringing

about the harm being complained of; and (2) there is no rule or policy that

should relieve the wrongdoer from liability because of the manner in which the

negligence has resulted in the harm; and (3) the harm giving rise to the action

could have reasonably been foreseen or anticipated by a person of ordinary

intelligence and prudence.

McClenahan v. Cooley, 806 S.W.2d 767, 775 (Tenn. 1991) (citations omitted).

The proximate cause of an injury is not required to “be the sole cause, the last act, or

the one nearest to the injury provided it is a substantial factor in producing the end result.”

Haynes v. Hamilton Cnty., 883 S.W.2d 606, 611-12 (Tenn. 1994). If the injury giving rise

to a plaintiff’s cause of action was not reasonably foreseeable, then there is no proximate

cause and no liability for negligence. Ray Carter, Inc. v. Edwards, 436 S.W.2d 864, 867

(Tenn. 1969). However, “the foreseeability requirement is not so strict as to require the

tortfeasor to foresee the exact manner in which the injury takes place, provided it is

determined that the tortfeasor could foresee, or through the exercise of reasonable diligence

should have foreseen, the general manner in which the injury or loss occurred.” Mason ex

rel. Mason v. Metro. Gov’t of Nashville and Davidson Cnty., 189 S.W.3d 217, 222 (Tenn.

Ct. App. 2005) (citing McClenahan, 806 S.W.2d at 775). It is sufficient that harm in the

abstract could reasonably be foreseen. Shell Oil Co. v. Blanks, 330 S.W.2d 569, 572 (Tenn.

Ct. App. 1959).

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Young argues that if the County had investigated and supervised WCPA, it would

have discerned that the agency was not licensed, she would not have been assigned to it for

probationary services, and, accordingly, she would not have been injured by Moore. This

argument, however -- that the injury would not have occurred but for her being assigned to

WCPA -- is a “but for” argument addressing causation rather than proximate cause.

As noted by the County, the assault suffered by Young was not caused by a judge

failing to check on the standing of a license of a probation agency after a long-time probation

officer had changed employers. The assault resulted from the intentional but unforeseeable

actions of Moore. In this case, Moore had successfully served as a probation officer for

twelve years and under four judges in the general sessions courts of the County. Young

failed to produce any proof that prior to the incident with her, Moore had shown any

propensity for conduct that would alert a reasonably prudent person that he represented a

danger to others. The failure of WCPA to be licensed was not Moore’s lack of experience,

propensity to hurt others, a criminal history, or any other element that made him unfit to serve

as a probation officer. The application process with the Council would not have uncovered

any warning sign to indicate Moore was likely to harm others. His criminal history was clear.

Young cannot assert that Moore was unqualified to serve as a probation officer or that he had

demonstrated any propensity for wrong doing that would have precluded him from working

as a probation officer. She simply contends that the failure of Judge Nidiffer to verify a

license for an agency leads to liability for the County for the intentional tort committed by

Moore.

In Doe v. Linder Constr. Co., 845 S.W.2d 173, 178 (Tenn. 1992), the Supreme Court

observed: “The plaintiff must show that the injury was a reasonably foreseeable

probability, not just a remote possibility . . . .” Id. (emphasis added.). The injuries to

Young were not a reasonably foreseeable probability of the County’s failure to investigate

and supervise and confirm the license for WCPA. Therefore, the injuries were not

proximately caused by the County’s omission. We must affirm the trial court’s decision.

V. CONCLUSION

The judgment of the trial court is affirmed. This case is remanded, pursuant to

applicable law, for such further proceedings as are necessary. Costs of the appeal are

adjudged against the appellant, Candace Young.

_________________________________

JOHN W. McCLARTY, JUDGE

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