Phillip Lucas . v. State of Tennessee Michael E. Collins v. State of Tennessee

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

November 3, 2003 Session

PHILLIP LUCAS, ET AL. v. STATE OF TENNESSEE,

MICHAEL E. COLLINS, ET AL. v. STATE OF TENNESSEE

Appeal from the Tennessee Claims Commission

No. 1,604,201 AND 20,100,376 en banc, Commissioners,

Randy C. Camp, Vance W. Cheek, Jr., and W.R. Baker

No. M2002-02810-COA-R9-CV - Filed February 4, 2004

These consolidated cases present two separate factual situations involving alleged liability of the

state under the Tennessee Claims Commission Act, Tennessee Code Annotated section 9-8-301, et

seq., for dangerous conditions existing on two separate highways. In both cases the State asserted

in defense discretionary function immunity. Because this defense is central to both cases, the Claims

Commission consolidated the cases for consideration of the applicability of discretionary function

immunity. In an en banc order, the Commission, construing Tennessee Code Annotated section 9-8-

307(d) and cases based upon that section, overruled the State’s motions for summary judgment. We

hold that under the plain and unambiguous provisions of Tennessee Code Annotated section 9-8-

307(d) the State is not entitled to assert discretionary function immunity in actions under the

Tennessee Claims Commission Act and affirm the judgment of the Claims Commission.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Tennessee Claims Commission

Affirmed and Remanded

WILLIAM B. CAIN , J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR., P.J., M.S.,

and PATRICIA J. COTTRELL, J., joined.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Dawn Jordan,

Rebecca Lyford, George Coffin, Nashville, Tennessee, for the appellant, State of Tennessee.

Mart G. Fendley, Clarksville, Tennessee, for the appellee, Phillip Lucas.

Tony R.. Dalton, Chad D. Emerson, Knoxville, Tennessee, for the appellee, Michael E. Collins.

OPINION

At issue in these two consolidated appeals are separate assertions before the Tennessee

Claims Commission of tort liability of the state for maintaining dangerous conditions on the

highways. David Lucas, son of Phillip and Betty Lucas, died in an automobile accident on March

2, 1990 on State Highway 96 in Robertson County, Tennessee. The complaint alleged that in

constructing and maintaining the highway, at and near the vicinity of the accident, the grade and

curvature of the highway was dangerous and that the State had failed to properly bank the curve or

warn travelers of the dangerous condition of the road. The single car accident resulted in injuries

to David Lucas that were fatal. The State, with supporting affidavits, filed a Motion for Summary

Judgment asserting “discretionary function” immunity.

On November 21, 1999, Michael Collins was driving his automobile southbound along State

Highway 155 (also known as Briley Parkway) and came upon a portion of the highway alleged to

be known as “dead man’s curve.” Passengers in his vehicle were Deanna L. Collins, Bobby E.

Collins and Ruth Collins. It was alleged that one Toni A. Rogers was driving her vehicle northbound

on Highway 155, entered “dead man’s curve,” lost control of her vehicle causing it to become

airborne and land on the claimant’s vehicle, seriously injuring Michael E. Collins and Deanna L.

Collins, and killing Bobby and Ruth Collins. The claim was filed with the Tennessee Claims

Commission based upon Tennessee Code Annotated section 9-8-307 for the negligent design and

maintenance of the portion of State Highway 155 called “dead man’s curve.” This claim was met

by a Motion for Summary Judgment supported by affidavit on behalf of the State claiming

discretionary function immunity. These two cases, along with two other cases not before the Court

on this appeal, were consolidated sua sponte by the Claims Commission for the purpose of ruling

upon separate summary judgment motions in each.

On March 2, 2002, Claims Commissioner W.R. Baker entered an extensive and carefully

reasoned order construing the “immunities” provision of Tennessee Code Annotated section 9-8-

307(d), distinguishing Cox v. State, 844 S.W.2d 173 (Tenn.Ct.App.1992), declining to recognize as

controlling authority the unreported decision in Waters v. State, 1998 WL 880911

(Tenn.Ct.App.1998) and overruling the State’s motions for summary judgment based upon

discretionary function immunity.1

On April 1, 2002, the State filed in these cases a Motion to Alter or Amend or, in the

alternative, for a rehearing en banc. The motion of the State for an en banc hearing before the

Claims Commission was granted and, on August 5, 2002, Commissioners Randy C. Camp, Vance

W. Cheek, Jr., and W.R. Baker entered an extensive and carefully considered order, once again

categorizing Cox v. State, 844 S.W.2d 173 (Tenn.Ct.App.1992) as being obiter dicta as to the point

in issue and declining to recognize Waters v. State, 1998 WL 880911 (Tenn.Ct.App.1998) as

precedential authority under Tennessee Supreme Court Rule 4 (H)(1) and once again overruling the

motions for summary judgment.

1

The State moved for summary judgment in these cases on the additional basis that the claimants had failed

to provide notice of dangerous conditions as required by Tennessee Code Annotated section 9-8-307(a)(I)(J), and, that

the State was protected by the statute of repose (TCA 28-3-202). The Claims Commission granted the statute of repose

motions insofar as the claims were predicated on acts or omissions occurring more than four years before the respective

dates of the claims and further held that questions of material fact remained for determination as to the notice claims.

These two rulings are not before the Court on this interlocutory appeal.

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Applications for permission to appeal were filed pursuant to Tennessee Rule of Appellate

Procedure 9 as to discretionary function immunity challenging the ruling of the Claims Commission.

The applications were granted by the Claims Commission and this Court. The consolidated case is

now before this Court for disposition.

GOVERNMENTAL (SOVEREIGN) IMMUNITY

In the case of Cooper v. Rutherford County, 531 S.W.2d 783 (Tenn.1975), Justice Henry

mounted an impassioned assault upon the citadel of governmental immunity, which met with as

much success as did Pickett’s Charge up Cemetery Ridge at Gettysburg. The Justice opined in

dissent:

Governmental immunity is a cankered, corroded and corrupted area of our

law. It is the flaming sword used by cities and counties in Tennessee to [banish] the

innocent victims of their wrongs and deny them their traditional day in court. It has

become the hallmark of governmental irresponsibility–the defense by which

governmental entities stoop to conquer their own citizens.

....

I condemn sovereign immunity. I believe that justice demands, reason

dictates, morality mandates and elemental consideration of conscience decree a

change in confidence in the quality of justice, which according to Daniel Webster,

is ‘man’s greatest interest on earth.’ Man’s eternal quest for justice is of equal

dignity with his search for certainty.

I would condemn this legal monstrosity to the oblivion which it so richly

deserves.

Cooper v. Rutherford County, 531 S.W.2d 783, 785, 792 (Tenn.1975)(Henry, J., dissenting).

In the nearly three decades that have elapsed since Cooper v. Rutherford County, no

successful challenge has been mounted upon the fundamental premise that the doctrine of

governmental immunity in Tennessee is of common law origin.

Coffman v. City of Pulaski, 220 Tenn. 642, 422 S.W.2d 429 (1967) survived the attack in

Cooper v. Rutherford County and remains the law of Tennessee. Therein it is said:

As to the argument that we should abolish this doctrine of immunity because

it is without warrant in the common law as adopted in this State by our Constitution,

(which adopted the common law of England as in force in North Carolina in 1796),

it is sufficient to say that, accepting the plaintiff-in-error’s own argument that the

common law should be written by judges to meet the needs of the society expected

to act thereunder, it lay within the power of the Supreme Court of this state to adopt

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and promulgate the doctrine of immunity presently under assault and the absence of

an English precedent is immaterial to its validity.

Coffman v. City of Pulaski, 220 Tenn. 642, 645, 422 S.W.2d 429, 431 (Tenn.1967).

Once the common law origin of governmental immunity is established, the long settled rule

of strict construction concerning statutes in derogation of the common law places a heavy burden

on the back of a plaintiff suing a sovereign in tort. Under this rule:

It is well settled that a statute will not be construed to alter the common law,

further than the act expressly declares or than is necessarily implied from the fact that

it covers the whole subject-matter. Horne v. Railroad Co., 1 Cold., 77; State v.

Miller, 11 Lea, 621; McCrea v. Galey, 1 Tenn. 251; Eaton v. Dickinson, 3 Sneed,

404; Moyers v. Brown, 10 Humph., 77; Shaw v. Merchants’ National Bank of St.

Louis, 101 U.S., 557, 25 L.Ed., 892.”

State v. Cooper, 120 Tenn. 549, 553; 113 S.W. 1048, 1049 (Tenn.1908); Olson v. Sharpe, 235

S.W.2d 11, 12 (Tenn.1950); see also, Lillienkamp v. Rippetoe, 133 Tenn. 57, 63, 179 S.W. 628

(1915).

We begin therefore with the premise that at common law the state was absolutely immune

from tort liability as were cities and counties within the state. The immunity of the state and the

separate immunities of cities and counties developed along different paths through statutory modi-

fications and partial abrogations of immunity.

As to the immunity of the state, the Supreme Court of Tennessee has provided the following

guidance:

As background, we think it important and significant to outline the rights of

the State of Tennessee as a sovereign. According to Article I, Section 17 of the

Constitution of the State of Tennessee, suits may be brought against the State in such

a manner and in such courts as the Legislature may by law direct, and in no other

manner.

In view of this, the Legislature has expressly provided by statute (T.C.A. §

20-1702) as follows:

No court in the state shall have any power, jurisdiction, or

authority to entertain any suit against the state, or against any officer

of the state acting by authority of the state, with a view to reach the

state, its treasury, funds, or property, and all such suits shall be

dismissed as to the state or such officers, on motion, plea, or demurrer

of the law officer of the state, or counsel employed for the state.

In the case of State, ex rel. Allen v. Cook, supra, the Court said:

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Article 1, section 17, of the Constitution, delegating to the

Legislature the power to authorize suits against the state, being in

derogation of the state’s inherent exemption from suit, must itself be

strictly construed; hence legislation authorizing suits against the state

must strictly pursue the constitutional requirements, and be so plain,

clear, and unmistakable in its provisions as to the manner and form

in which such suits may be brought as to leave nothing to surmise or

conjecture. 171 Tenn. at 611, 106 S.W.2d at 860.

Brewington v. Brewington, 387 S.W.2d 777, 778-79 (Tenn.1965).

Sovereign immunity of counties in Tennessee developed on the basis that a county was an

arm of the state and since it could exercise only the sovereignty delegated to it by the state

legislature, it was shielded by the sovereign immunity of the state.

In Wood v. Tipton County, 7 Bax., 112, it was held that a county was no more

liable to be sued for the neglect of its officers than is the State for the negligence of

its officers in the discharge of their public duties.

But in such matters it can do only such acts as may be allowed, that is,

authorized by law. Shannon, sec. 496. It can exercise that portion of the sovereignty

of the State communicated to it by the Legislature, and no more. Grant v. Lindsay,

11 Heis., 651; Railway Co. v. Wilson County, 5 Pick., 604.

Its liability to suit only extends to matters of contract and not to torts or the

negligence of its employees. Hence an action for damages will not lie for laying off

a public road by the County Court, which was afterwards declared by the court to be

a shun-pike and ordered to be closed. Turnpike Co. v. Davidson County, 14 Lea, 74;

Grant v. Lindsay, 11 Heis., 651; Hawkins v. Justices, 12 Lea, 356.

The general rule is that counties are not liable for torts or negligence in the

condition, use, and management of public institutions. Many reasons are assigned.

1. That there is no fund out of which satisfaction could be had.

2. That it is better that an individual should suffer than that the public

should sustain an inconvenience.

3. That it is a subordinate political or governmental division of the State.

4. That its function or action in regard to such institutions are legislative,

and that neither the State or county could be sued on such account.

5. That counties are instrumentalities of government and partake of the

immunities of States while acting in a governmental capacity.

McAndrews v. Hamilton County, 105 Tenn. 399, 403-04, 58 S.W.483 (1900).

The common law immunity of cities is essentially based upon the same considerations.

Cruse v. City of Columbia, 922 S.W.2d 492 (Tenn.1996); Hawks v. City of Westmoreland, 960

S.W.2d 10 (Tenn.1997).

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We are not concerned in this case with the separate statutory development of the limited

abrogation of sovereign immunity made applicable to cities and counties by the Tennessee

Governmental Tort Liability Act. Tenn.Code Ann. §§ 29-20-101, et seq. This act is not and never

has been applicable to the State of Tennessee or its agencies and departments. Tennessee Dep’t of

Mental Health, et al. v. Hughes, 531 S.W.2d 299 (Tenn.1975).

Prior to the effective date of either the Tennessee Governmental Tort Liability Act in 1973

or the Tennessee Claims Commission Act in 1984, Tennessee recognized a common law immunity

for a public official in the performance of a discretionary act.

The authorities seem to be in accord to the effect that public officials, who

owe the performance of a ministerial duty to a particular individual, are liable to one

injured as the proximate result of their nonfeasance or misfeasance in the

performance of such duty. Where the duty is absolute, certain, and imperative, and

is simply ministerial, the officer is liable in damages to any one specially injured,

either by his omitting to perform the task or by performing it negligently or

unskillfully. On the other hand, where his powers are discretionary, and to be exerted

or withheld according to his own judgment, he is not liable to any private person for

a neglect to exercise those powers, nor for the consequences of a willful exercise of

them, where no corruption or malice can be imputed to him, and he keeps within the

scope of his authority. Some of the cases refer to an officer possessing such

discretionary powers as judicial or quasi-officer. But this rule goes no further than

to relieve public officials of liability for nonfeasance and for the misfeasance of their

servants or agents. Moynihan v. Todd, 188 Mass., 301, 74 N.E., 367, 108 Am. St.

Rep., 473; Smith v. Zimmer, 45 Mont., 282, 125 Pac., 420; Shearman & Redfield on

Neg. (3 Ed.), section 156; Doeg v. Cook, 126 Cal., 213, 58 Pac., 707, 77 Am. St.

Rep., 171; Tholkes v. Decock, 125 Minn., 507, 147 N.W., 648, 52 L.R.A. (N.S.), 142,

and notes.

Hale v. Johnston, 140 Tenn. 182, 197-98, 203 S.W. 949, 952-53 (1918).2

At common law the sovereign entity, be it the state, a city, or a county, had no “discretionary

act” immunity and indeed needed none. The sovereign entity was already absolutely immune under

the common law doctrine of sovereign immunity. Because of sovereign immunity the entity was not

liable in respondeat superior for the acts or omissions of its agents, servants, or employees, except

in cases where such immunity was modified by statute or the entity was exercising proprietary

functions. Memphis v. Kimbrough, 59 Tenn. 133 (1873).

“Discretionary act” immunity developed to protect officers, employees and agents of the

governmental entity in their individual capacity since they otherwise were not protected by the

umbrella of sovereign immunity. As one authority stated:

2

The rule stated in Hale v. Johnston is exhaustively annotated in 52 L.R.A. (new series) 142 (1914).

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The liability of public officers for the negligent failure to discharge

ministerial duties expressly imposed upon them by law, in consequence of which

injury is suffered by an individual member of the community, is well settled. The

general rule is tersely stated by Mr. Justice Bunn in Howley v. Scott, 123 Minn. 159,

51 L.R.A. (N.S.) 137, 143 N.W. 257, and as there laid down is followed and applied

by practically all the courts. 23 Am. & Eng. Enc. Law, 377; 2 Shearm. & Redf. Neg.

303 et seq.; Anne Arundel County v. Duckett, 83 Am. Dec. 557, and note (20 Md.

468); 1 Dill. Mun. Corp. 5th ed. 483. This is true notwithstanding the fact that the

county, town, or other municipality which they may represent is not responsible at

the suit of a private person, either for their nonfeasance or misfeasance. The wrong

of the officer is not the wrong of the municipal subdivision he may represent, but that

of the officer, and he alone is responsible therefor, except perhaps where by law the

municipality is equally liable. The county is not responsible to private persons for

the torts of its sheriff, county auditor, or other officer, yet the officer himself, for his

negligence in respect to the performance of his ministerial duties, is liable to any

person who may suffer in consequence of such neglect.

Tholkes v. Decock, 125 Minn. 507, 509, 147 N.W. 648, 52 L.R.A. (N.S.) 142, 146-47 (1914).

If Tholkes v. Decock applied to all acts of public officials rather than only to those purely

ministerial, the position of a public employee would indeed be precarious. To modify this general

exposure to liability, both the common law and statutory enactments developed “discretionary act”

immunity. As one authority has observed:

Executive officers and employees. Public employees of the executive branch

–everyone who is not in the legislative or judicial branches–were originally liable for

their torts and certainly for those committed in excess of their authority. One

solution holds state officers liable only for gross negligence or for specified conduct.

In the twentieth century, state courts developed immunities for officers and

employees of public entities. A little authority even provides an absolute immunity

to higher level state officers, at least as to defamation or as to matters in which it is

especially important for high level officers to feel unhampered by possible legal

actions. More generally, officers and employees are said to enjoy qualified immunity

for discretionary acts, but not for ministerial acts. The discretionary immunity is

qualified or conditional because it is usually lost if the officer is guilty of bad faith,

malice, corruption, wanton misconduct or the like.

Dobbs “The Law of Torts, Vol. 1, Ch. 15, sec. 273, 734-35 (2001).

The term “discretionary function” was introduced into the law of Tennessee when the

Tennessee Governmental Tort Liability Act was enacted by Chapter 345 of the Public Acts of 1973.

This Act, applicable to local government entities, partially abrogated governmental immunity with

Tennessee Code Annotated section 29-20-205 providing, in part: “Immunity from suit of all

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governmental entities is removed for injury proximately caused by a negligent act or omission of any

employee within the scope of his employment except if the injury arises out of: (1) The exercise

or performance or the failure to exercise or perform a discretionary function, whether or not the

discretion is abused.”

This Act served the dual purpose (within the limits provided by the statute) of removing

immunity of the sovereign entity and shielding the employee, acting within the scope of his authority,

from liability to third persons. Hill v. City of Germantown, 31 S.W.3d 234 (Tenn.2000).

The Act did not define “discretionary function” leaving Tennessee courts to fill the void

thereby created by falling back on the “discretionary” and “ministerial” definitions in Hale v.

Johnston. Noting that other jurisdictions had interpreted their statutory “discretionary function”

language, Judge Franks, dissenting in Davis v. City of Cleveland, 709 S.W.2d 613

(Tenn.Ct.App.1986), urged adoption of a “planning-operational” test as the proper standard. Davis,

709 S.W.2d at 616. The supreme court responded in Bowers v. City of Chattanooga, 826 S.W.2d

427 (Tenn.1992), a case predicated upon the Tennessee Governmental Tort Liability Act, by

adopting a “planning-operational” test and modifying Hale v. Johnston’s standard accordingly.

As we have observed, the Tennessee Governmental Tort Liability Act is not applicable to the

case at bar and this discussion is made only in response to the position of the State of Tennessee that

it is entitled, under Tennessee Code Annotated section 9-8-307(d), to assert “discretionary function”

immunity in this case. The position of the State is not persuasive as it contradicts Tennessee Code

Annotated section 9-8-307(d).

THE CLAIMS COMMISSION ACT

Keeping in mind that sovereign immunity is the rule, we turn now to the Tennessee Claims

Commission Act.

Central to the resolution of the issue before us is the Claims Commission’s

jurisdictional authority. Article I, § 17, of the Tennessee Constitution provides that

the state may be sued in such manner and in such courts as the legislature by law

directs. From 1796 until 1984, the General Assembly was extremely reticent in

permitting claims against the state. Moreover, the courts’ reticence was evidenced

by repeatedly pointing out that suits against the state were in derogation of the

common law and that statutes purporting to permit these suits should be strictly

construed. See, e.g., State ex rel. Allen v. Cook, 171 Tenn. 605, 106 S.W.2d 858, 860

(1937); Stokes v. University of Tenn., 737 S.W.2d 545, 547 (Tenn.App.1987), cert.

denied, 485 U.S. 935, 108 S.Ct. 1110, 99 L.Ed.2d 271 (1988). However, in 1984 the

legislature enacted a sweeping procedure for filing monetary claims against the state.

See Act of May 24, 1984, ch 972, 1984 Tenn. Pub. Acts 1026; Tenn.Code Ann. §§

9-8-305, -307 (Supp.1984). The following year, the legislature amended the statute

by adding the following statement: “It is the intent of the general assembly that the

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jurisdiction of the claims commission be liberally construed to implement the

remedial purposes of this legislation.” Tenn.Code Ann. § 9-8-307(a)(Supp.1985).

Hembree v. State, 925 S.W.2d 513, 516 (Tenn.1996).

The Tennessee Claims Commission Act, subject to its monetary cap on recoverable damages,

accomplished a sweeping abrogation of sovereign immunity as to the State of Tennessee relative to

acts or omissions of state employees.3 Pursuant to the statute, sovereign immunity is abrogated as

to:

(C) Negligently created or maintained dangerous conditions on state

controlled real property. The claimant under this subsection must establish the

foreseeability of the risks and notice given to the proper state officials at a time

sufficiently prior to the injury for the state to have taken appropriate measures;

....

(I) Negligence in planning and programming for, inspection of, design of,

preparation of plans for, approval of plans for, and construction of, public roads,

streets, highways, or bridges and similar structures, and negligence in maintenance

of highways, and bridges and similar structures, designated by the department of

transportation as being on the state system of highways or the state system of

interstate highways;

(J) Dangerous conditions on state maintained highways. The claimant under

this subsection must establish the foreseeability of the risk and notice given to the

proper state officials at a time sufficiently prior to the injury for the state to have

taken appropriate measures;

Tenn. Code Ann. § 9-8-307(a)(C)(I)(J) (2003 Supp.).

While the Tennessee Governmental Tort Liability Act applicable to local government entities

provides immunity to the local government entity in performance by an employee of a “discretionary

function,” (Tenn. Code Ann. § 29-20-205(a)), the Tennessee Claims Commission Act provides no

such immunity for the State of Tennessee. The controlling part of the Claims Commission Act

provides:

(c) The determination of the state’s liability in tort shall be based on the

traditional tort concepts of duty and the reasonably prudent person’s standard of care.

(d) The state will be liable for actual damages only. No award shall be made

unless the facts found by the commission would entitle the claimant to a judgment

3

A “state employee,” as pertinent to this case, is defined as “any person who is a state official, including

members of the General Assembly and legislative officials elected by the General Assembly, or any person who is

employed in the service of and whose compensation is payable by the state, or any person who is employed by the state

whose compensation is paid in whole or in part from federal funds.” Tenn.Code Ann. § 8-42-101(3)(A).

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in an action at law if the state had been a private individual. The state will not be

liable for punitive damages and the costs of litigation other than court costs. The

state will not be liable for willful, malicious, or criminal acts by state employees, or

for acts on the part of state employees done for personal gain. The state may assert

any and all defenses, including common law defenses, which would have been

available to the officer or employee in an action against such an individual based

upon the same occurrence. The state may assert any absolute common law

immunities available to the officer or employee, however, good faith common law

immunity may not be asserted.

Tenn. Code Ann. § 9-8-307(c)(d)(Supp.2003)(emphasis added).

The Supreme Court of Tennessee has noticed the clash between the strict construction rule

established in State v. Cook, 171 Tenn. 605, 106 S.W.2d 858 (Tenn.1937) and Brewington v.

Brewington, 215 Tenn. 475, 387 S.W.2d 777 (Tenn.1965), and the legislatively-mandated liberal

construction rule established by Tennessee Code Annotated section 9-8-307(a)(3) relative to the

jurisdiction of the Claims Commission. See Stewart v. State, 33 S.W.3d 785, 791 (Tenn.2000); Cf.

Northland Insurance Co. v. State, 33 S.W.3d 727, 730 (Tenn.2000). However, there is room for

neither strict construction nor liberal construction when the controlling statutory provision is clear

and unambiguous. “When the language contained within the four corners of a statute is plain, clear,

and unambiguous, the duty of the courts is simple and obvious, ‘to say sic lex scripta, and obey it.’

” ATS Southeast, Inc. v. Carrier Corp., 18 S.W.3d 626, 629-30 (Tenn.2000); see also Hawks v. City

of Westmoreland, 960 S.W.2d 10, 16 (Tenn.1997); Miller v. Childress, 21 Tenn. 320, 321-22 (1841).

The entire statutory purpose of the Tennessee Claims Commission Act is to establish the

state’s liability in tort based on the traditional tort concepts of duty and the reasonably prudent

persons’ standard of care. See Tenn. Code Ann. § 9-8-307(c)(Supp.2003). As restraint on this

purpose, the same statute provides: “For causes of action arising in tort, the state shall only be liable

for damages up to the sum of three hundred thousand dollars ($300,000) per claimant and one

million dollars ($1,000,000) per occurrence.” Tenn. Code Ann. § 9-8-307(e). Within these

prescribed monetary limits, the abrogation of sovereign immunity in Tennessee Code Annotated

section 9-8-307(a)(C)(I)(J) is unconditional as to liability in tort for actual damages.

It is the provision of the statute reserving to the state certain preexisting defenses on which

the decision in this case must be predicated. The statute provides in part: “The state may assert any

and all defenses, including common law defenses, which would have been available to the officer

or employee in an action against such an individual based upon the same occurrence. The state may

assert any absolute common law immunities available to the officer or employee, however, good

faith common law immunity may not be asserted.” Tenn. Code Ann. § 9-8-307(d)(Supp.2003).

Clearly only “absolute” common law immunities remain available to the state. Absolute

immunity is a well defined doctrine at common law. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct.

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984, 47 L.Ed.2d 128 (U.S.1976). “Qualified immunity” is likewise well defined at common law.

Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (U.S.1982).

The Supreme Court has consistently held that government officials are

entitled to some type of immunity from suits for damages. “[P]ublic officers require

this protection to shield them from undue interference with their duties and from

potentially disabling threats of liability.” Harlow v. Fitzgerald, 457 U.S. 800, 806,

102 S.Ct. 2727, 2732, 73 L.Ed.2d 396 (1982). Two types of immunity defenses have

generally been recognized: absolute immunity and qualified immunity. Absolute

immunity defeats a suit at the outset, provided that the official’s actions are within

the scope of the immunity. Imbler v. Pachtman, 424 U.S. 409, 419 n. 13, 96 S.Ct.

984, 989 n. 13, 47 L.Ed.2d 128 (1976). Qualified immunity is asserted as a defense,

and shields government officials performing discretionary functions from civil

liability if their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known. Harlow v. Fitzgerald, supra,

457 U.S. at 818, 102 S.Ct. at 2738.

“[O]fficials whose special functions or constitutional status require[]

complete protection from suit” are accorded absolute immunity. Id. at 807, 102 S.Ct.

at 2732. Absolute immunity from suit has been accorded to judges, Stump v.

Sparkman, 435 U.S. 349, 98 S.Ct. 109, 55 L.Ed.2d 331 (1978), prosecutors, Imbler

v. Pachtman, supra, legislators, Eastland v. United States Servicemen’s Fund, 421

U.S. 491, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975), and to federal agency officials who

perform adjudicatory or prosecutorial functions. Butz v. Economou, 438 U.S. 478,

98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). The Supreme Court has been cautious in

extending the protection of absolute immunity, and has noted that “federal officials

who seek absolute exemption from personal liability for unconstitutional conduct

must bear the burden of showing that public policy requires an exemption of that

scope.” Id. at 506, 98 S.Ct. at 2911.

The Supreme Court has provided that qualified immunity from damages

liability is the general rule for executive officials charged with constitutional

violations. Id. at 507, 98 S.Ct. at 2911. Qualified immunity is an attempted balance

of the competing values of protecting individuals’ constitutional rights and protecting

officials who are required to exercise their discretion, in order to encourage the

vigorous exercise of official authority. Harlow v. Fitzgerald, supra, 457 U.S. at 813-

14, 102 S.Ct. at 2736; Butz v. Economou, supra, 438 U.S. at 506, 98 S.Ct. at 2910.

Ray v. Pickett, 734 F.2d 370, 371-2 (C.A.Mo., 1984).

Qualified immunity has been historically referred to as “good faith immunity.” See

Winchester v. Little, 996 S.W.2d 818, 826 (1998), perm. app. denied July 6, 1999, cert. denied 528

U.S. 1026, 120 S.Ct. 543, 145 L.Ed.2d 421 (Nov.29,1999); Gomez v. Toledo, 446 U.S. 635, 64

L.Ed.2d 572, 100 S.Ct. 1920, (1980); Wood v. Strickland, 420 U.S. 308, 43 L.Ed.2d 214, 95 S.Ct.

992 (1975). While the “good faith” standard was adjusted in Harlow v. Fitzgerald, 457 U.S. 800,

-11-

73 L.Ed.2d 396, 102 S.Ct. 2727 (U.S.1982) to shield government officials from liability where “their

conduct does not violate clearly established statutory or constitutional rights of which a reasonable

person would have known.” 73 L.Ed.2d at 410, it is clear that Harlow did not convert qualified

“good faith” immunity into absolute immunity since the case was remanded for reconsideration

rather than simply dismissed. Absolute immunity defeats a suit at the outset and nothing remains

to be addressed by an order of remand. It is only qualified immunity that would allow remand for

consideration of the factual basis for either a “good faith” standard as pre-existed Harlow v.

Fitzgerald, or a factual determination post Harlow v. Fitzgerald that official conduct “does not

violate clearly established statutory or constitutional rights of which a reasonable person would have

known.”

It has long been recognized that absolute immunity envisions the tyranny of abuse of power

on an individual basis by persons clothed with authority. The justification for absolute immunity

is nowhere better expressed than by Judge Learned Hand in Gregoire v. Biddle, 177 F.2d 579, (2nd

Cir.1949).

It does indeed go without saying that an official, who is in fact guilty of using

his powers to vent his spleen upon others, or for any other personal motive not

connected with the public good, should not escape liability for the injuries he may so

cause; and, if it were possible in practice to confine such complaints to the guilty, it

would be monstrous to deny recovery. The justification for doing so is that it is

impossible to know whether the claim is well founded until the case has been tried,

and that to submit all officials, the innocent as well as the guilty, to the burden of a

trial and to the inevitable danger of its outcome, would dampen the ardor of all but

the most resolute, or the most irresponsible, in the unflinching discharge of their

duties. Again and again the public interest calls for action which may turn out to be

founded on a mistake, in the face of which an official may later find himself hard put

to it to satisfy a jury of his good faith. There must indeed be means of punishing

public officers who have been truant to their duties; but that is quite another matter

from exposing such as have been honestly mistaken to suit by anyone who has

suffered from their errors. As is so often the case, the answer must be found in a

balance between the evils inevitable in either alternative. In this instance it has been

thought in the end better to leave unredressed the wrongs done by dishonest officers

than to subject those who try to do their duty to the constant dread of retaliation.

Judged as res nova, we should not hesitate to follow the path laid down in the books.

The decisions have, indeed, always imposed as a limitation upon the

immunity that the official’s act must have been within the scope of his powers; and

it can be argued that official powers, since they exist only for the public good, never

cover occasions where the public good is not their aim, and hence that to exercise a

power dishonestly is necessarily to overstep its bounds. A moment’s reflection

shows, however, that that cannot be the meaning of the limitation without defeating

the whole doctrine. What is meant by saying that the officer must be acting within

his power cannot be more than that the occasion must be such as would have justified

-12-

the act, if he had been using his power for any of the purposes on whose account it

was vested in him.

Gregoire v. Biddle, 177 F.2d at 581.

The Court of Appeals for the Sixth Circuit, affirming the trial court in a rather celebrated civil

rights case, delineated the time-honored distinctions between absolute immunity on the one hand and

qualified immunity on the other in unmistakable terms in the case of Spurlock v. Satterfield, 167

F.3d 995 (6th Cir.1999). In that case Spurlock and his co-defendant Marshall had been prosecuted

for murder predicated in part upon the testimony of Deputy Sheriff Danny Satterfield. Further

investigation, after the conviction of Spurlock, established that other persons had committed the

murder and the Spurlock-Marshall convictions were set aside. In the civil rights action, Satterfield

claimed in defense that he was entitled to absolute immunity for his witness testimony and also

absolute immunity for his non-testimonial acts.4

As to his witness testimony the court held that he was entitled to absolute immunity. Said

the court:

The issue here is not simply one of providing false testimony at trial, or even,

for that matter, conspiring to give false testimony. It is well-settled that witnesses are

granted absolute immunity from suit for all testimony provided in judicial

proceedings. See Briscoe v. LaHue, 460 U.S. 325, 330-31, 103 S.Ct. 1108. 75

L.Ed.2d 96 (1983). Thus, it is clear that Satterfield would be insulated from liability

for any testimony that he provided as a witness at trial, no matter how egregious or

perjurious that testimony was alleged to have been. Accordingly, the district court

correctly found that Satterfield was absolutely immune from suit for his testimony

during Spurlock’s criminal trial, and we easily affirm the district court’s conclusion

in that regard. Moreover, we note also that the mere fact that plaintiffs may allege

a conspiracy to render false testimony, as opposed to simply alleging that one person

testified falsely at trial, does not waive absolute testimonial immunity. See Alioto v.

City of Shively, Kentucky, 835 F.2d 1173, 1174-75 (6th Cir.1987); Macko v. Byron,

760 F.2d 95, 97 (6th Cir.1985). Thus, Satterfield is correct that an alleged conspiracy

to provide false testimony does not abrogate his right to absolute testimonial

immunity.

167 F.3d 995, 1001 (6th Cir.1999).

As to his non-testimonial actions, the court first rejected his claim of absolute immunity and

then addressed his alternative claim of qualified immunity.

4

Satterfield, in addition to his false testimony, attempted to persuade a co-defendant, Apple, to lie and claim

to have been a witness to the murder and further gave Apple “hush money” after the plaintiffs’ trials in order to induce

his continued silence.

-13-

Qualified immunity, like absolute immunity, is also available as an

affirmative defense that protects public officials not only from liability, but also from

the “burdens of trial and discovery.” English, 23 F.3d at 1089. See also Noble v.

Schmitt, 87 F.3d 157, 161 (6th Cir.1996). Officials who are not entitled to absolute

immunity may, in certain instances, “enjoy the protection of qualified immunity.”

Achterhof, 886 F.2d ta 829. In examining a claim for qualified immunity, we must

balance the need for public officials to be free from the constant fear of lawsuits

brought while performing their official duties, with the recognition that “[i]n

situations of abuse of office, an action for damages may offer the only realistic

avenue for vindication of constitutional guarantees.” Harlow v. Fitzgerald, 457 U.S.

800, 814, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In Harlow, the Supreme Court

articulated the test for qualified immunity and stated that “government officials

performing discretionary functions generally are shielded from liability for civil

damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Id. at 818,

102 S.Ct. 2727 (abandoning the subjective good faith approach to addressing

qualified immunity for the more objective reasonableness test); see also Noble, 87

F.3d 375, 386 (6th Cir.1994); Adams v. Metiva, 31 F.3d 375, 386 (6th Cir.1994).

167 F.3d 995, 1005 (6th Cir.1999).

The court thereupon rejected Satterfield’s claim of qualified immunity and affirmed the trial

court’s judgment for Spurlock on the basis of his alleged non-testimonial acts.

As to the procedural aspects of a qualified immunity defense, the Sixth Circuit Court of

Appeals has observed:

“Qualified or ‘good faith’ immunity is an affirmative defense that is available

to government officials performing discretionary functions.” Rich v. City of Mayfield

Hts., 955 F.2d 1092, 1094 (6th Cir.1992). “The ultimate burden of proof is on the

plaintiff to show that the defendants are not entitled to qualified immunity.” Id. at

1095 (emphases added). The Sixth Circuit, en banc, has recently defined the

components of the qualified immunity defense:

Government officials performing discretionary functions generally are

shielded from liability for civil damages insofar as their conduct does

not violate clearly established [federal] statutory or constitutional

rights of which a reasonable person would have known. The

procedure for evaluating claims of qualified immunity is tripartite:

First, we determine whether a constitutional violation has occurred;

second, we determine whether the right that was violated was a

clearly established right of which a reasonable person would have

known; finally, we determine whether the plaintiff has alleged

sufficient facts, and supported the allegations by sufficient evidence,

-14-

to indicate that what the official allegedly did was objectively

unreasonable in light of the clearly established constitutional rights.

Williams v. Mehar, 186 F.3d 685, 691 (6th Cir.1999) (en banc)

(quotations omitted; brackets added) (citing Harlow v. Fitzgerald,

475 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Dickerson

v. McClellan, 101 F.3d 1151, 1157-58 (6th Cir.1996)).

Scott v. Clay County, Tennessee, 205 F.3d 867, 873-74, n. 9 (6th Cir.2000).

The Claims Commission, in its August 5, 2002 Order, states “it appears that what the state

calls the ‘qualified immunity doctrine’ is in reality just an adaptation of the discretionary acts

doctrine to actions brought under 42 U.S.C., section 1983.” While there is, in the context of this

case, barely marginal distinction between the qualified immunity doctrine and the discretionary acts

doctrine, qualified immunity is of ancient origin. In Scheuer v. Rhodes, 416 U.S. 232, 40 L.Ed.2d

90, 94 S.Ct. 1683 (U.S.1974), while tracing the origin of qualified immunity to the statute of

Westminster I, 3 Ewd., 1, c. 24 (1275) and observing that “good-faith performance of a discretionary

duty has remained, it seems as a defense,” and after referring to absolute immunity the Court goes

on to state:

[I]f, on the other hand, the immunity is not absolute but rather one that is qualified

or limited, an executive officer may or may not be subject to liability depending on

all the circumstances that may be revealed by evidence. The concept of the immunity

of government officers from personal liability springs from the same root

considerations that generated the doctrine of sovereign immunity. While the latter

doctrine–that the “King can do no wrong” –did not protect all government officers

from personal liability, the common law soon recognized the necessity of permitting

officials to perform their official functions free from the threat of suits for personal

liability.

Scheuer, 416 U.S. at 239.

Any lingering doubt that “discretionary function” immunity is, in fact, a qualified immunity

and not an absolute immunity is settled by the United States Supreme Court in Anderson v.

Creighton, 483 U.S. 635, 97 L.Ed. 523, 107 S.Ct. 3034 (1987) wherein the court observed the

tension between government officials abusing their offices on the one hand and being honestly

mistaken as to their conduct on the other. Said the court:

Our cases have accommodated these conflicting concerns by generally providing

government officials performing discretionary functions with a qualified immunity,

shielding them from civil damages liability as long as their actions could reasonably

have been thought consistent with the rights they are alleged to have violated. See,

e.g., Malley v. Briggs, 475 U.S. 335, 341, 89 L.Ed.2d 271, 106 S.Ct. 1092 (1986)

(qualified immunity protects “all but the plainly incompetent or those who knowingly

-15-

violate the law”); id., at 344-345, 89 L.Ed.2d 271, 106 S.Ct. 1092 (police officers

applying for warrants are immune if a reasonable officer could have believed that

there was probable cause to support the application); Mitchell v. Forsyth, 472 U.S.

511, 528, 86 L.Ed.2d 411, 105 S.Ct. 2806 (1985) (officials are immune unless “the

law clearly proscribed the actions” they took); Davis v. Scherer, 468 U.S. 183, 191,

82 L.Ed.2d 139, 104 S.Ct. 3012 (1984); id., at 198, 82 L.Ed.2d 139, 104 S.Ct. 3012.

(Brennan, J., concurring in part and dissenting in part); Harlow v. Fitzgerald, supra,

at 819, 73 L.Ed.2d 396, 102 S.Ct. 2727. Cf., e.g., Procunier v. Navarette, 434 US

555, 562, 55 L.Ed.2d 24, 98 S.Ct. 855 (1978). Somewhat more concretely, whether

an official protected by qualified immunity may be held personally liable for an

allegedly unlawful official action generally turns on the “objective legal

reasonableness” of the action, Harlow, 457 U.S., at 819, 73 L.Ed.2d 396, 102 S.Ct.

2727, assessed in light of the legal rules that were “clearly established” at the time

it was taken, id., at 818, 73 L Ed 2d 396, 102 S Ct 2727.

Anderson, 483 U.S. at 638-39, 107 S.Ct. 3038, at 530 (1987).

Before discussing further the controlling issue involving “discretionary function” immunity

it is helpful to consider the legislative history of the controlling provisions of the Tennessee Claims

Commission Act. In the original Act creating the Claims Commission, the controlling provision

simply stated: “The state may assert any and all defenses, including common law defenses, which

would have been available to the officer or employee in an action against such individuals based

upon the same occurrence.” 1984 Tenn. Pub. Acts 972, sec. 8(d). Since the cases are clear through-

out the country that common law immunities are affirmative defenses, we may assume, that under

the original Act, both absolute immunities and good faith immunities were available to the state

under this provision of the Act. Chapter 105 of the Public Acts of 1985 amended the Claims

Commission Act by adding to the above sentence a provision that “the state may assert any absolute

common law immunities available to the officer or employee, however, good faith common law

immunity may not be asserted.” 1985 Tenn. Pub. Acts 105, sec. 6.5 By this section of Chapter 105,

the legislature clearly determined to separate common law defenses from common law immunities,

and to restrict the state to the use of only absolute common law immunity.

At bar the discussion in brief and argument centered around whether or not “discretionary

function” immunity was in fact “good faith” immunity and thus foreclosed to the state under the

express provisions of Tennessee Code Annotated section 9-8-307(d). The discussion is academic,

as under no circumstances is any immunity available to the state which could not be characterized

as “absolute immunity,” such being the only type of immunity that survived the enactment of the

Tennessee Claims Commission Act, as amended by Chapter 105 of the Public Acts of 1985.

5

Section 1 of Chapter 105 added the provision that “it is the intent of the General Assembly that the

jurisdiction of the Claims Commission be liberally construed to implement the remedial purposes of this legislation.”

-16-

Efforts to superimpose the “planning-operational” test of Bowers v. City of Chattanooga onto

the Tennessee Claims Commission Act are to no avail given the explicit language used by the

legislature in limiting immunities available to the state to “absolute” immunities. The “planning

operational” test of Bowers involves a construction of the “discretionary function” provisions of the

Tennessee Governmental Tort Liability Act. Tenn. Code Ann. § 29-20-205(a). Aside from the fact

that such discretionary function immunity is foreign to the Tennessee Claims Commission Act, it

fails to qualify as an “absolute” immunity.

The decision herein is at odds with certain language in four Tennessee cases, these being

chronologically Cox v. State, 844 S.W.2d 173 (Tenn.Ct.App.1992); Youngblood v. Clepper, 856

S.W.2d 405 (Tenn.Ct.App.1993); Waters v. State, 03A01-9808-BC-00243, 1998 WL 880911

(Tenn.Ct.App.1998) and Bolton v. State, E2001-02960-COA-R9-CV; 2002 WL 1798538 (Tenn.Ct.

App.2002). In Cox, an inmate on work release attacked, raped and sodomized a claimant. One

section of this Court’s opinion dealt with discretionary function immunity, but the case was decided

on the issue of foreseeability. The entire discussion in the case as to discretionary function immunity

provided:

Claimant argues that the acts complained of are not discretionary functions.

However, the State maintains that it has never asserted discretionary function

immunity as a defense to this claim. The Commissioner found that “all actions

complained of herein deal with discretionary duties of State employees for which

such employees are immune from liability” and that “pursuant to [T.C.A. §] 9-8-

307(d) the State may assert this common law immunity.”

We agree that, under T.C.A. § 9-8-307(d), the State may assert the common

law immunity which has developed in this State with regard to discretionary actions

of State employees. See State ex rel. Robertson v. Farmers’ State Bank, 162 Tenn.

499, 39 S.W.2d 281 (1931); Buckner v. Carlton, 623 S.W.2d 102 (Tenn.App.1981).

In the recent case of Bowers ex rel. Bowers v. City of Chattanooga, 826 S.W.2d 427

(Tenn.1992), the Supreme Court adopted the “planning-operational test,” under

which “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 immunity.” Id. at 430.

Because we affirm the findings of the Commissioner with regard to the issue

of foreseeability, however, we find it unnecessary to determine whether the acts

complained of were discretionary. This issue is pretermitted.

Cox v. State, 844 S.W.2d 173, 176 (Tenn.Ct.App.1992).

Thus, while the Commissioner applied discretionary function immunity, one must take note

of the fact that the State never asserted discretionary function immunity as a defense in that case.

In the discussion of Tennessee Code Annotated section 9-8-307(d) the court opines that “the state

may assert the common law immunity which has developed in this state with regard to discretionary

-17-

actions of state employees.” Id. In support of this statement the court relies on two cases, State ex

rel. Robertson v. Farmers State Bank, 162 Tenn. 499, 39 S.W.2d 281 (1931); Buckner v. Carlton,

623 S.W.2d 102 (Tenn.Ct.App.1981). Both of these cases predated the enactment of the Claims

Commission Act in 1984. Permission to appeal in Cox v. State was denied by the Supreme Court

on October 26, 1992.

Youngblood v. Clepper, 856 S.W.2d 405 (Tenn.Ct.App.1993) was a suit not before the

Claims Commission but before the Circuit Court of Marion County, and not against the State of

Tennessee but against a Tennessee Highway patrolman in his individual capacity. The acts in issue

occurred on August 12, 1984, which predated the effective date of section 8 of Chapter 972 of the

Public Acts of 1984 (the Claims Commission Act), which effective date was January 1, 1985.

Section 8 of the Claims Commission Act was codified as Tennessee Code Annotated section 9-8-

307.

Thus, this Court in Youngblood v. Clepper specifically held that Tennessee Code Annotated

section 9-8-307 was not applicable to that case and the decision applied case law predating the

Claims Commission Act. Youngblood, 856 S.W.2d at 406.

Waters v. State, 03A01-9808-BC-00248, 1998 WL 880911 (Tenn.Ct.App. Dec.17,1998) and

Bolton v. State, E2001-02960-COA-R9-CV, 2002 WL 1798538 (Tenn.Ct.App. Aug.6,2002) are

unreported decisions of the Court of Appeals in which applications to appeal to the Supreme Court

were not filed.6 In Waters, the claimant appealed an adverse decision of the Claims Commission in

a traffic accident on Highway 64 in Polk County resulting in the death of Mr. Waters. The Claims

Commission dismissed the action holding that installation of the guardrails was discretionary and

the State was therefor immune from suit. The Commission also held that the claimant failed to

establish any negligence by the State in its design for maintenance of the highway, or that its actions

were the proximate cause of the accident. The Court of Appeals sustained the action of the Claims

Commission on the basis that “the Claims Commission properly determined that the State is immune

from suit on this evidence under T.C.A. §§ 9-8-307(a)(1)(I) and (J).” Waters, 1998 WL 880911, *

3. The appellate court then declined to address the other basis on which the Claims Commission had

dismissed the claim. The court predicates its opinion upon its statement:

T.C.A. § 9-8-307 provides the Commission has exclusive jurisdiction to

decide certain monetary claims against the State. In this case, the Claimant brought

claims under T.C.A. § 9-8-307(a)(1)(I) and T.C.A. § 9-8-307(a)(1)(J). Under T.C.A.

§ 9-8-307(d), the State “may assert any and all defenses, including common law

defenses, which would have been available to the officer or employee in an action

against such an individual based upon the same occurrence.” Additionally, T.C.A.

§ 9-8-307(g) provides “[n]o language contained in this chapter is intended to be

construed to abridge the common law immunities of state officials and employees.”

6

Under Tennessee Supreme Court rule 4(H)(1), an unpublished opinion is controlling authority between the

parties to the case but for all other purposes is considered persuasive authority.

-18-

Thus, under T.C.A. § 9-8-307(d), “the State may assert the common law immunity

which has developed in this State with regard to discretionary actions of State

employees.” Cox v. State, 844 S.W.2d 173,176 (Tenn.App.1992)

Waters, 1998 WL 880911, * 1 (Tenn.Ct.App. Dec.19,1998).

The language of Tennessee Code Annotated section 9-8-307(g) is limited to the common law

immunities of state officials and employees. No state official or employee was a defendant either

in Waters or in the case at bar. The common law immunities of state officials and employees does

not enure to the benefit of the state except to the extent that section 307(d) allows the state to assert

such immunities, and that allowance is limited to absolute immunities.

The difficulty with this reliance on the provision of Tennessee Code Annotated section 9-8-

307(d) that the State “may assert any and all defenses, including common law defenses, which would

have been available to the officer or employee in an action against such an individual based upon

the same occurrence,” is that the same statute makes an express distinction between “common law

defenses” and “common law immunities.” The Waters’ court then relies on the statement from Cox

v. State, 844 S.W.2d 173, 176 (Tenn.App.1992) that “the State may assert the common law

immunity which has developed in this State with regard to discretionary actions of state employees.”

The actual provision of Tennessee Code Annotated section 9-8-307(d) as to such common law

immunities is “the State may assert any absolute common law immunities available to the officer or

employee, however, good faith common law immunity may not be asserted.”

In Bolton v. State, E2001-02960-COA-R9-CV, 2002 WL 1798538 (Tenn.Ct.App. Aug.6,

2002) the State appealed the action of the Claims Commission denying its Motion for Summary

Judgment based on discretionary function immunity. Janet Bolton was injured in September of 1995

in an automobile accident on U.S. Highway11. She sued under Tennessee Code Annotated section

9-8-307(a)(1)(I) and (J), the same provisions of the statute on which the case at bar is predicated.

Without elaboration the Claims Commission overruled the summary judgment motion of the State.

Certain concessions by the parties must be noted.

The State, in its reply brief, however, concedes it is not entitled to summary judgment

on Plaintiffs’ claim that the portion of Highway 11 that includes the intersection was

negligently designed or constructed but instead argues Plaintiffs did not raise this

claim at the trial level.

Plaintiffs contend the Claims Commission correctly denied the State’s Motion

for Summary Judgment and argue the State is not entitled to discretionary function

immunity for the negligent design and construction and the dangerous condition of

the intersection under Tenn.Code Ann. §§ 9-8-307(a)(1)(I) and (J). Plaintiffs,

however, concede the State is entitled to judgment as a matter of law under the

discretionary function immunity defense for its decision whether or not to install a

traffic control device at the intersection.

Bolton, 2002 WL 1798538 * 2.

-19-

The critical portion of the opinion of the Court of Appeals states:

Furthermore, under Tenn.Code Ann. § 9-8-307(d), “ ‘the State may assert the

common law immunity which has developed in this State with regard to discretionary

actions of State employees.’ ” Waters v. State, No. 03A01-9808-BC-00243, 1998

Tenn.App. LEXIS 844, at * 2-3 (Tenn.Ct.App. Dec.17,1998), no appl. perm. app.

filed, (quoting Cox v. State, 844 S.W.2d 173, 176 (Tenn.Ct.App.1992)). The State

is immune from suit for discretionary acts under this defense. Courts, when

determining whether a particular decision of the State is discretionary, are to apply

the planning-operational test. Id. at * 3; Cox v. State, 844 S.W.2d at 176. When

using the planning-operational test, courts are to consider “ ‘ (1) the decision-making

process and (2) the propriety of judicial review of the resulting decision.’ ” Waters

v. State, 1998 Tenn.App. LEXIS 844, at * 3 (quoting Bowers v. Chattanooga, 826

S.W.2d 427, 431 (Tenn.1992)).

2002 WL 1798538 * 4.

Reliance is once again placed on the language from Cox v. State, 844 S.W.2d 173, 176

(Tenn.Ct.App.1992) that “the state may assert the common law immunity which has developed in

this state with regard to discretionary actions of state employees.” Once again this language is not

what the statute says. The only other authority relied on in Bolton is the same language from Waters

v. State.

Footnote 3 in the Bolton opinion states:

This Court in Waters v. State held that, while our Supreme Court in Bowers

v. City of Chattanooga applied the planning-operational test to an action

against a municipality under the Tennessee Governmental Tort Liability Act,

the test was also applicable to actions against the State where the State raises

the defense of common law immunity. Waters v. State, 1998 Tenn.App.

LEXIS 844, at * 3.

Waters, 2002 WL 1798538, *4 at n. 3.

The difficulty with this position is that while discretionary function immunity upon which

Bowers v. City of Chattanooga is predicated is specifically applicable to counties and cities under

the Tennessee Governmental Tort Liability Act, it is not applicable to the State of Tennessee under

the Claims Commission Act, section 9-7-307(d) as only “absolute” immunities are available to the

state. Discretionary function immunity is a qualified (good faith) immunity rather than an absolute

-20-

immunity and by the express provisions of section 307(d) of the statute cannot be relied upon by the

State in an action before the Claims Commission.7

Even in the absence of a clear legislative mandate such as is contained in Tennessee Code

Annotated section 9-8-307(d), the State could not assert discretionary function immunity as a matter

of law so as to justify summary judgment.

Although absolute immunity from § 1983 actions is available to government

officials performing legislative functions at the municipal level, generally only

qualified or “good faith” immunity has been extended to government officials

performing discretionary functions that are characteristically executive or

administrative. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90

(1974); Harlow, supra; Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86

L.Ed.2d 411 (1985). See, also, Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034,

97 L.Ed2d 523 (1987); Section 1983: Sword and Shield, supra, at 340-42; and

Federal Civil Rights Acts, supra, §§ 108, 109. Consequently, because the United

States Supreme Court has applied a “function” test in determining the extent of

immunity granted to government officials, and because that Court has strongly

suggested, and other courts have held, that government officials performing at the

municipal level should not be classified differently from government officials

performing at the federal or state level, we conclude that immunity is available to

government officials performing discretionary functions at the municipal level that

are executive or administrative in nature, but that that immunity is limited to the

qualified or “good faith” variety.

Point Properties, Inc. v. Anderson, 584 So.2d 1332, 1338 (Ala.1991).

A case closely analogous to the case at bar is Savage v. State, 127 Wash.2d 434, 899 P.2d

1270 (1995). The legislature of Washington had enacted a sweeping abrogation of sovereign

immunity similar to the Tennessee Claims Commission Act. In a suit against the State for alleged

negligent supervision of a prisoner who raped the plaintiff, the finding of the Supreme Court of

Washington denied the effort of the State to assert sovereign immunity:

In addition, the Court of Appeals’ holding on the immunity issue is based on

a premise we cannot sustain: that the immunity of a government agent will be

extended to the State unless expressly prohibited by the Legislature. Savage, 72

Wash.App. at 490, 864 P.2d 1009. That conclusion simply cannot be reconciled with

7

The metamorphosis of the position of the State on this issue is interesting and predictable. In Cox v. State,

“the state maintains that it has never asserted discretionary function immunity as a defense to this claim.” 844 S.W .2d

173, 176 (Tenn.Ct.App.1992). W hen in spite of this assertion the Claims Commission in Cox applied discretionary

function immunity and the Court of Appeals approved such actions, although in a section of the opinion not necessary

to a decision in the case, the State promptly accepted this invitation and in both Waters and Bolton, specifically relied

on discretionary function immunity as it has relied on such immunity in the case at bar.

-21-

the legislative abrogation of sovereign immunity. That abrogation would be pointless

if the Legislature were required, in order to give it effect, to reiterate it at every

occasion in which it might apply. There is no basis for treating RCW 4.92.090 as a

nullity, particularly as it is one of the broadest waivers of sovereign immunity in the

country. See Comment, Abolition of Sovereign Immunity in Washington, 36

Wash.L.Rev. 312, 313 (1961).

B

The Extension of Qualified Personal Immunity for the State

The proper starting point for a discussion of whether the State is immune for

the qualifiedly immune acts of its officers must begin with the legislative abrogation

of sovereign immunity.

Article 2, § 26 of the Washington State Constitution provides: “[t]he

legislature shall direct by law, in what manner, and in what courts, suits may be

brought against the state.” In 1961 the Legislature waived the State’s sovereign

immunity from civil liability. Laws of 1961, ch. 136, § 1 (codified as RCW

4.92.090). As subsequently amended, that section provides:

The state of Washington, whether acting in its governmental

or proprietary capacity, shall be liable for damages arising out of its

tortious conduct to the same extent as if it were a private person or

corporation.

This provision operates to make the State presumptively liable in all instances

in which the Legislature has not indicated otherwise. (underscoring added).

Quite apart from the legislative mandate abrogating sovereign immunity, the

different functions personal and governmental immunity are designed to serve

support maintaining state liability in this context, even where the agent enjoys

qualified personal immunity. One court has explained the difference as follows:

[T]he fundamental reasons for the two immunities differ; for the

officer it is to encourage unrestrained execution of responsibility,

while for the sovereign it is to prevent judicial scrutiny of basic

policies formulated by coordinate branches of government. To

insulate the Government from liability for the inevitable mishaps

which will occur when its employees perform their functions without

fear of liability not only is unjust, but also serves no purpose for

which sovereign immunity need exist.

Downs v. United States, 382 F.Supp. 713, 750 (M.D.Tenn.1974) (in a Federal

Tort Claims Act case it was unnecessary to decide whether government agents were

immune, because the government would not be immune even if they were), rev’d on

other grounds, 522 F.2d 990 (6th Cir.1975); see also Lutheran Day Care v.

Snohomish Cy., 119 Wash.2d 91, 108, 829 P.2d 746 (1992), cert. denied, ____ U.S.

_____, 113 S.Ct. 1044, 122 L.Ed.2d 353 (1992).

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The Restatement (Second) of Torts recognizes this notion:

With respect to some government functions, the threat of individual

liability would have a devasting [sic] effect, while the threat of

governmental liability would not significantly impair performance.

Restatement (Second) of Torts § 895D cmt. j, at 420 (1979).

A fact and policy specific inquiry also suggests the rationale underlying the

grant of qualified personal immunity to parole officers does not apply with equal

force to the State. Parole officers supervising parolees are called upon to make

difficult decisions under difficult circumstances. Taggart v. State, 118 Wash.2d 195,

215, 822 P.2d 243 (1992). Given these conditions, the prospect of personal liability

may reasonably be expected to have an unduly inhibiting effect on the performance

of their professional duties.

As was the case in Babcock v. State, 116 Wash.2d 596, 616-19, 809 P.2d 143

(1991), the same cannot be said about state liability. On the contrary, maintaining

the potential of state liability, as established in RCW 4.92, can be expected to have

the salutary effect of providing the State an incentive to ensure that reasonable care

is used in fashioning guidelines and procedures for the supervision of parolees.

Savage v. State, 127 Wash.2d 434, 444, 899 P.2d 1270, 1275-76 (Wash.1995).

The Claims Commission, both in Commissioner Baker’s March 1, 2002 order and in the en

banc order of August 5, 2002 exhaustively construed Tennessee Code Annotated section 9-8-307

and the cases deemed applicable to such construction and reached the conclusion that the State was

not entitled to rely upon discretionary function immunity. The reasoning of the Commission is

impressive but we are content to sustain the position of the Claims Commission on the basis that the

statute is clear and unambiguous and needs no construction. Whether one refers to “qualified

immunity,” “discretionary function immunity,” “discretionary acts immunity,” or “good faith

immunity” is, in the context of this case, academic. None of these characterizations qualify as an

“absolute immunity” and only absolute immunities are available to the state under Tennessee Code

Annotated section 9-8-307(d).

The State argues that even after it is determined that there is a dangerous condition, “then the

State must be able to use its discretion in making a decision whether there are funds and other

resources available to correct the dangerous condition.” In such situations, the argument goes, the

state has the discretion to decide that the correction is too expensive or that monetary considerations

require delay in correction until other projects are completed or even that a warning is not feasible.

“The State must have the discretion to make these decisions without fear of law suits challenging

the decisions made.”

This position is inconsistent with Tenn. Code Ann. § 9-8-307(a)(1)(I) and (J). It is also

inconsistent with the Claims Commission Act provision that the State’s liability in tort “shall be

based on the traditional concepts of duty and the reasonably prudent person’s standard of care.”

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Tenn. Code Ann. § 9-8-307(c). Under generally-applicable principles of tort law, all persons have

a duty to use reasonable care under the circumstances to refrain from conduct that will foreseeably

cause injury to others. Doe v. Linder Constru. Co., Inc., 845 S.W.2d 173, 178 (Tenn. 1992). In

determining whether, in a particular situation, there is a duty to act responsibly so as to protect others

from unreasonable risks of harm, Tennessee has adopted an approach that balances the foreseeable

probability and severity of harm against the burden upon the defendant to engage in alternative

conduct that would have prevented the harm. Staples v. CBL & Associates, Inc., 13 S.W.3d 83, 89

(Tenn. 2000); McClung v. Delta Square Limited Partnership, 937 S.W.2d 891, 894-95 (Tenn. 1996);

McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995). In determining whether a risk is an

unreasonable one, the court must consider several factors, including

The foreseeable probability of the harm or injury occurring; the possible magnitude

of the potential harm or injury; the importance or social value of the activity engaged

in by defendant; the usefulness of the conduct to defendant; the feasibility of

alternative, safer conduct and the relative costs and burdens associated with that

conduct; the relative usefulness of the safer conduct; and the relative safety of

alternative conduct.

Staples, 15 S.W.3d at 89, quoting Coln v. City of Savannah, 966 S.W.2d 34, 39 (Tenn. 1998);

McCall v. Wilder, 913 S.W.2d at 153.

Thus, under general tort law principles, the feasibility and costs associated with correcting

a dangerous condition or taking other steps to avoid injury because of that condition would be factors

relevant to a determination of duty, not a bar to recovery by an injured plaintiff.8 Our Supreme Court

has applied traditional tort theories to claims under the Claims Commission Act, pursuant to Tenn.

Code Ann. §9-8-307(c). See Stewart v. State, 33 S.W.3d 785, 793 (Tenn. 2000) (applying common

law principles of assumption of a duty where one is not legally imposed to a claim for negligent

control).

CONCLUSION

The seed from which the problem developed in this case was planted in Cox v. State, when

after the State correctly conceded that it could not rely on discretionary function immunity under

Tennessee Code Annotated section 9-8-307(d) the Claims Commission applied the doctrine anyway.

When this Court in dicta approved the action of the Claims Commission the State changed its

position. Thereafter, in Waters and in Bolton and in the case at bar, the State asserted discretionary

function immunity based upon Cox. Continued reliance on the dicta in Cox simply compounds the

problem.

8

The Savage court sidestepped this question by affirming the trial court judgment on the basis that the State

had tendered no proof as to such considerations or as to the economic resources available to the state.

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Subject to monetary caps and limitations to actual damages and court costs, the Claims

Commission Act was a sweeping abrogation of sovereign immunity. Hembree v. State, 925 S.W.2d

513 (Tenn.1996). It was the same broad waiver of sovereign immunity as was effected in Savage,

899 P.2d 1270 (Wash.1995). By way of exception to this broad abrogation, the legislature gave back

to the state the right to plead absolute immunity. The legislature specifically prohibited the state

from relying on “good faith” immunity. The controlling point is that no matter how one may define

“discretionary function” immunity it cannot be defined as an absolute immunity, and since the statute

restricts the state to the defense of absolute immunity only, it necessarily follows that the State

simply cannot rely on “discretionary function” immunity.

The Claims Commission has already held that the question of notice of dangerous conditions

remains for trial. It has further already granted summary judgment to the State under Tennessee

Code Annotated section 28-3-202 for all claims predicated upon acts or omission occurring more

than four years before the respective dates of claims in these cases. As these issues were not

appealed, they are not currently before the Court. Foreseeability remains an issue of fact to be tried.

On the sole issue before this Court which is the availability of “discretionary function”

immunity to the State under the Tennessee Claims Commission Act, we affirm the action of the

Claims Commission for reasons stated herein and remand these cases for trial on their respective

merits “based upon the traditional tort concepts of duty and a reasonably prudent persons’ standard

of care.” Tenn.Code Ann. § 9-8-307(d).

Costs of the cause are assessed to the State of Tennessee.

____________________________________

WILLIAM B. CAIN, JUDGE

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