David Luke Harvey v. Dickson County, Tennessee

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

February 5, 2008 Session

DAVID LUKE HARVEY v. DICKSON COUNTY, TENNESSEE, ET AL.

Appeal from the Circuit Court for Dickson County

No. CV 2256 George C. Sexton, Judge

No. M2007-01793-COA-R3-CV - Filed May 21, 2008

An inmate at the Dickson County Jail who was attacked by another inmate filed this action against

co-defendants, Dickson County and the Sheriff of Dickson County to recover damages for his

personal injuries. The trial court summarily dismissed the complaint against both defendants without

stating the legal grounds for its conclusion. The plaintiff contends the defendants breached their duty

to prevent foreseeable harm because the defendants left a mop in the jail, which was not secured or

locked away, and the defendants knew or should have known that a mop could be used by an inmate

as a weapon. Penal institutions have a duty to use reasonable and ordinary care to prevent

foreseeable attacks on inmates by other inmates. For a penal institution to be liable for injuries

resulting from inmate-on-inmate assaults, the general rule is that the institution must have had prior

notice of an attack. The defendants supported their motion for summary judgment with affidavits

stating that they had no notice and no reason to believe that the plaintiff was likely to be assaulted.

This shifted the burden to the plaintiff to establish that a dispute of fact exists concerning whether

the defendants knew of or had reason to anticipate such an attack. The evidence presented by the

plaintiff fails to create a dispute of this material fact. Accordingly, we affirm.

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

FRANK G. CLEMENT , JR., J., delivered the opinion of the court, in which PATRICIA J. COTTRELL, P.J.,

M.S., and ANDY D. BENNETT , J., joined.

Larry L. Roberts, Nashville, Tennessee, for the appellant, David Luke Harvey.

Mark Nolan and Kathryn Wall Olita, Clarksville, Tennessee, for the appellee, Dickson County,

Tennessee, and Tom Wall, in his capacity as Sheriff of Dickson County, Tennessee.

OPINION

The plaintiff, David Luke Harvey, was incarcerated on April 4, 2006, for contempt of court

due to his failure to pay child support. On April 27, 2006, a fellow inmate violently attacked Harvey

in the general population area of the Dickson County Jail. The altercation began after Harvey

refused to give another inmate a piece of candy. The assault occurred in two waves. First, the

attacker struck Harvey with his fist in the back of the head and then in the mouth. Then, the attacker

ran off, only to go to a different area in the jail where cleaning supplies were located, retrieved a mop

handle, and returned to repeatedly beat Harvey with the mop handle. Harvey sustained two broken

arms, a broken nose, and several lacerations as a result of the attack.

On July 14, 2006, Harvey filed this action against Dickson County and Sheriff Tom Wall,

in his capacity as Sheriff of Dickson County. In the Complaint, he alleged, inter alia, the defendants

were negligent by leaving dangerous instrumentalities – the mop handle – unsecured and in the

presence of the general population of the jail. In their respective Answers, the defendants denied

being negligent in any manner.

Thereafter, the defendants moved for summary judgment contending the claim against Sheriff

Wall should be dismissed as a matter of law because Sheriff Wall, in his official capacity as Sheriff,

and the County had immunity. The defendants also contended that the undisputed material facts

showed that they had no knowledge or reason to anticipate the attack on Harvey as a matter of law.

The only material fact in dispute is whether the defendants had advance knowledge or

warning that the incident was going to occur. In his statement of disputed facts, Harvey insisted that

the defendants had “advance warning because the Defendants either knew or should have known that

by leaving a broom and/or mop in the pod with unsupervised inmates that the risk of an incident,

such as the one between the Plaintiff and [the attacker], was reasonably foreseeable.”

The trial court summarily dismissed the Complaint; however, it failed to state the legal

grounds upon which it decided the motion as Tenn. R. Civ. P. 56 requires.1 This appeal followed.

STANDARD OF REVIEW

The issues were resolved in the trial court upon summary judgment. Summary judgments

do not enjoy a presumption of correctness on appeal. BellSouth Adver. & Publ’g Co. v. Johnson, 100

S.W.3d 202, 205 (Tenn. 2003). This court must make a fresh determination that the requirements

of Tenn. R. Civ. P. 56 have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997).

We consider the evidence in the light most favorable to the non-moving party and resolve all

inferences in that party’s favor. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002). When reviewing

the evidence, we first determine whether factual disputes exist. If a factual dispute exists, we then

determine whether the fact is material to the claim or defense upon which the summary judgment

is predicated and whether the disputed fact creates a genuine issue for trial. Byrd v. Hall, 847 S.W.2d

208, 214 (Tenn. 1993); Rutherford v. Polar Tank Trailer, Inc., 978 S.W.2d 102, 104 (Tenn. Ct. App.

1998).

1

The trial court failed to fulfill its obligations under Tenn. R. Civ. P. 56 as amended in 2007. Rule 56 requires

the trial court to state the legal grounds upon which a summary judgment decision is made. In the interest of judicial

economy, we decline to remand the case for the trial court to state the legal grounds upon which the summary judgment

decision was based.

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Summary judgments are proper in virtually all civil cases that can be resolved on the basis

of legal issues alone, Byrd v. Hall, 847 S.W.2d at 210; Pendleton v. Mills, 73 S.W.3d 115, 121

(Tenn. Ct. App. 2001); however, they are not appropriate when genuine disputes regarding material

facts exist. Tenn. R. Civ. P. 56.04. The party seeking a summary judgment bears the burden of

demonstrating that no genuine disputes of material fact exist and that party is entitled to judgment

as a matter of law. Godfrey v. Ruiz, 90 S.W.3d at 695. Summary judgment should be granted at the

trial court level when the undisputed facts, and the inferences reasonably drawn from the undisputed

facts, support one conclusion, which is the party seeking the summary judgment is entitled to a

judgment as a matter of law. Pero’s Steak & Spaghetti House v. Lee, 90 S.W.3d 614, 620 (Tenn.

2002); Webber v. State Farm Mut. Auto. Ins. Co., 49 S.W.3d 265, 269 (Tenn. 2001). The court must

take the strongest legitimate view of the evidence in favor of the non-moving party, allow all

reasonable inferences in favor of that party, discard all countervailing evidence, and, if there is a

dispute as to any material fact or if there is any doubt as to the existence of a material fact, summary

judgment cannot be granted. Byrd v. Hall, 847 S.W.2d at 210; EVCO Corp. v. Ross, 528 S.W.2d 20

(Tenn. 1975). To be entitled to summary judgment, the moving party must affirmatively negate an

essential element of the non-moving party’s claim or establish an affirmative defense that

conclusively defeats the non-moving party’s claim. Cherry v. Williams, 36 S.W.3d 78, 82-83 (Tenn.

Ct. App. 2000).

ANALYSIS

The dispositive issue in this case is whether the defendants knew or had reason to anticipate

the attack on Harvey. The issue of liability arising from inmate-on-inmate assaults is not new to this

state. Our courts have repeatedly noted that penal institutions are not insurers of an inmate’s safety.

See Gillespie v. Metropolitan Government, No. 01A01-9109-CV-00317, 1992 WL 9441, at *1

(Tenn. Ct. App. Jan. 24, 1992). The general rule is that the penal institutions merely have a duty to

use reasonable and ordinary care to prevent foreseeable attacks on inmates by other inmates. Id. A

penal institution breaches its duty of care “when the institution’s authorities knew of or had reason

to anticipate an attack and did not use reasonable care to prevent it.” Id. (citing Spann v. State, 421

So.2d 1090, 1092, 1093 (Dist. Ct. App.1982), petition for review denied w/o op., 430 So.2d 452 (Fla.

1983); Lexington v. Greenhow, 451 S.W.2d 424, 425-26 (Ky. Ct. App. 1970); Parker v. State, 282

So.2d 483, 486 (La.), cert. denied, 414 U.S. 1093, 94 S.Ct. 724, 38 L.Ed.2d 550 (1973); Padgett v.

State, 558 N.Y.S.2d 433, 434 (App. Div.), app. denied, 76 N.Y.2d 711, 565 N.E.2d 516, 563

N.Y.S.2d 767 (1990); Williams v. Adams, 288 N.C. 501, 504, 219 S.E.2d 198, 200 (1975); Justice

v. Rose, 102 Ohio App. 482, 144 N.E.2d303, 304 (1957); Saunders v. State, 446 A.2d 748, 751 (R.I.

1982)).

For a penal institution to be liable for injuries resulting from inmate-on-inmate assaults, the

general rule is that the institution must have had prior notice of an attack. Id. (citing Harris v. State,

61 N.J. 585, 297 A.2d 561, 563 (1972)). This principle was reaffirmed in Hanks v. State, No.

02A01-9810-BC-00295, 1999 WL 454459, at *3 (Tenn. Ct. App. July 2, 1999), wherein we noted

that, generally, there must be some prior notice of an attack for liability to attach.

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In Gillespie v. Metropolitan Government, an inmate was injured when another inmate struck

him with a milk crate. Gillespie, 1992 WL 9441, at *1. In affirming the trial court’s decision to grant

summary judgment to the defendants, we noted that Metropolitan Government’s motion for

summary judgment was supported by numerous affidavits of correctional officers working at the

jail, as well as the deposition testimony of the plaintiff, each of whom stated that at no time prior to

the assault had the plaintiff or any other inmate or correctional officer informed the affiant that the

attacker posed any threat to the plaintiff’s safety. Id. at *2. The affiants also stated that the plaintiff

had not requested to be removed from the attacker, and the attacker had no history of violent

behavior. Moreover, the plaintiff admitted in his deposition that he was never threatened by the

other inmate. Id. With the plaintiff having failed to provide any proof to create a dispute of fact as

to prior notice, we affirmed the summary dismissal based upon the defense of lack of notice.

In Hanks, the plaintiff suffered personal injuries when another inmate threw a pan of hot

grease on him. Hanks, 1999 WL 454459, at *1. As in Gillespie, the plaintiff in Hanks admitted that

he had not notified anyone at the prison of his fear of a potential attack by the attacker. Id. at *4.

Moreover, there was no proof that the attacker had any disciplinary infractions or other history of

assaults during the two years he had been in prison prior the attack on the plaintiff. Id. After stating

that “[t]he penal institution breaches its duty [to use reasonable and ordinary care to prevent

foreseeable attacks on inmates by other inmates] when its authorities know of or have reason to

anticipate an attack and do not use reasonable care to prevent it,” and that there must generally be

some “prior notice of an attack,” we concluded that the State had no notice that the attacker “posed

any threat of harm to [the plaintiff],” and thus, “the State did not breach its required duty of care.”

Hanks, 1999 WL 454459, at *4. Accordingly, we affirmed the Claims Commission’s grant of

summary judgment in favor of the State of Tennessee. Id.

In a similar case of Kinningham v. State, the plaintiff was grabbed by another inmate who

suddenly and without warning cut the plaintiff on the arm. Kinningham v. State, No. M2001-

00495-COA-R3-CV, 2001 WL 1089501, at *1 (Tenn. Ct. App. Sept. 18, 2001). The plaintiff

admitted in his deposition that he had no notice of potential harm, and he had no knowledge if the

penal officers had any such notice. The claim was summarily dismissed by the Claims Commission.

We affirmed the grant of summary judgment because the plaintiff offered no proof that the State had

any notice that a fellow inmate posed any threat of harm to the plaintiff. Id. at *4.

Turning to the matter at hand, Harvey had been incarcerated for twenty-three days prior to

the assault. At no time during these three weeks was Harvey involved in any incidents or

altercations with his attacker. In fact, Harvey testified by deposition that he had previously assisted

the attacker with proof-reading a letter that the attacker had written to his girlfriend. Harvey further

testified that at no time prior to the assault did he believe the attacker posed a threat to his safety, and

Harvey had never advised anyone that the attacker posed a threat.2 Moreover, Harvey never

2

Harvey gave the following testimony at his deposition:

Q: Did you have any warning that Mr. Robertson [the attacker] was going to attack you like that?

(continued...)

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requested to be moved from the area of the jail where the attacker was housed or Harvey was

assaulted. Furthermore, there is no proof in the record establishing that the attacker had any violent

tendencies or a history of altercations during his imprisonment. The record indicates that the attacker

was imprisoned as the result of a drug offense, not a violent act. Moreover, Sheriff Tom Wall

testified that he “never had any advance warning that Mr. Robertson, the attacker, would attack

Harvey, and to the best of his knowledge, no jail employee had such warning either.”

Harvey claims the defendants knew or should have known that cleaning items like the mop

could be used as weapons if left in the jail pod for an extended period of time; therefore, the

defendants had constructive notice of the dangers that could be caused by leaving such

instrumentalities in a jail cell with unsupervised inmates. This, according to Harvey, amounts to a

breach of the duty to prevent foreseeable harm to the inmates. We, however, find this argument

unpersuasive because the relevant cases, Gillespie, Hanks and Kinningham, focus not on the

instrumentalities used in the inmate-on-inmate assaults, but rather, on the previous conduct of the

inmates at issue. Each of the instrumentalities used in the assaults in Gillespie and Hanks – cooking

grease and a milk crate – served an essential purpose in the penal institutions.3 Although each of

them could have been secured while not in use, and armed guards could have stood over the inmates

as each was being used, the relevant authorities have established that the penal institutions are not

required to employ such extraordinary safeguards. Instead, the issue in these cases is whether the

penal institution had notice that an inmate posed a threat to assault another inmate, and if so, did the

institution use reasonable care to prevent such an assault. See Hanks, 1999 WL 454459, at *3.

We have determined that a reasonable person could draw but one conclusion from the facts

of this case – that the defendants did not have prior notice of the assault that took place, nor did they

have reason to anticipate an assault. We therefore affirm the grant of summary judgment.

2

(...continued)

A: No.

Q: Did any deputy jailer or employee of the jail have any warning that Mr. Robertson was going to

attack you like that?

A: I - - I don’t believe so, no.

3

Sheriff Tom W all admitted that, in retrospect, a mop handle could be used as a weapon, but he stated that “[u]p

until [Harvey] got hurt - - as far as I can ever remember I never remember anyone being injured with one. I just

personally never thought about a mop and a mop handle, you know.”

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IN CONCLUSION

The judgment of the trial court is affirmed, and this matter is remanded with costs of appeal

assessed against the appellant, David Luke Harvey.

___________________________________

FRANK G. CLEMENT, JR., JUDGE

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