Tanna Gordon v. State of Tennessee

10/10/2024

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

June 25, 2024 Session

TANNA GORDON ET AL. v. STATE OF TENNESSEE

Appeal from the Tennessee Claims Commission

No. T20203117-01

Commissioner Jim Hamilton, TN. Claims Commission (Western Division),

No. W2023-01012-COA-R3-CV

___________________________________

The State appeals a judgment against it for an injury caused by the gross negligence of its

employees in the creation or maintenance of a dangerous condition on state-owned

property. Because we conclude that the Tennessee Claims Commission lacks subject

matter jurisdiction over claims for gross negligence, we reverse.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Claims Commissioner

Reversed and Remanded

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which FRANK G.

CLEMENT, JR., P.J., M.S., and ARNOLD B. GOLDIN, J., joined.

Jonathan Skrmetti, Attorney General and Reporter; J. Matthew Rice, Solicitor General;

Mary Elizabeth McCullohs, Senior Assistant Attorney General, for the appellee, State of

Tennessee.

Edward L. Martindale, Jr., and Jessee Leigh Snider, Jackson, Tennessee, for the appellee,

Tanna Gordon, Individually and as Next Friend and Natural Guardian of Mali Vowell, a

minor.

OPINION

I. PROCEDURAL AND FACTUAL BACKGROUND

On May 18, 2020, Mali Rain Vowell (“the Child”), a minor, was injured when she

cut her foot on a piece of broken metal pipe below the surface of the water in the lake at

Chickasaw State Park. In July 2020, the Child’s mother, Tanna Gordon, filed a claim

against the State of Tennessee (“the State”) in the Tennessee Claims Commission (“the

Claims Commission”), both individually and on behalf of the Child. Although Ms. Gordon

was the only signatory to the complaint, because claims were brought by both Ms. Gordon,

individually, and on behalf of the Child, we, like the parties, refer to them as “Claimants”

throughout this Opinion.

According to the complaint, the Child suffered severe and permanent injuries as a

result of the cut. Claimants therefore asserted that the State was liable under Tennessee

Code Annotated section 9-8-307(a)(1)(C), relating to negligently created or maintained

dangerous conditions on State property. Claimants sought $100,000.00 in compensatory

damages.

The State answered the complaint, denying the material allegations in the complaint

and raising as an affirmative defense the recreational use statute, Tennessee Code

Annotated sections 70-7-102 through -104. The State’s later motion to dismiss and/or for

summary judgment was denied by the Claims Commission by order of June 1, 2022, and

the matter was heard on March 6, 2023.

On May 4, 2023, the Claims Commission issued a detailed written order and

judgment finding that the State was negligent in failing to remove the “remnant of the

original pole [that] was still embedded in the lakebed.” The Claims Commission further

found that the “broken metal pole with its jagged edges which was allowed to remain

embedded in the lakebed constituted a dangerous condition” and that the State had actual

knowledge of the condition.1 The Claims Commission also found that the Child’s injury

was foreseeable and proximately caused by the State’s negligence. Finally, the Claims

Commission noted that the Child had sustained serious injuries as a result of the State’s

negligence, which necessitated two separate surgeries but did not result in a permanent

impairment. The Claims Commission therefore awarded Claimants a total of $56,893.19,

including both economic damages for medical care and noneconomic damages for pain and

suffering and the loss of the ability to enjoy life.

On May 23, 2023, the State filed a motion to alter or amend the Claims

Commission’s ruling, pointing out that the judgment failed to consider the State’s

affirmative defense under Section 70-7-102. In the accompanying memorandum, the State

argued that because the Child was using the State’s property for a recreational use, it was

immune from liability under the recreational use statute. Although the State noted two

exceptions to the immunity provided by that statute—as relevant to this appeal, that the

landowner had committed gross negligence or willful or wanton conduct that resulted in a

failure to guard or warn against a dangerous condition—the State argued that neither were

1

In support of its finding that the State had actual knowledge of the dangerous condition of the

broken pipe, the Claims Commission noted that (1) a replacement pole was installed, which could only

have been done when the water in the lake was “drawn down,” exposing the broken pipe; (2) the broken

pipe was filled with a silicone-like substance, but not smoothed down; and (3) the installation of the new

pole and the filling of the broken pole would only have been performed by State employees.

-2-

present in this case.

On June 12, 2023, the Claims Commission issued an amended judgment noting the

applicability of the recreational use statute but ruling that the State committed gross

negligence in recognizing the danger posed by the broken metal pipe but doing nothing to

actually eliminate the danger. The Claims Commission therefore found that an exception

existed to the immunity provided by the recreational use statute; the damages against the

State were reaffirmed. From this order, the State appeals.

II. ISSUES PRESENTED

The State raises the following issues for our review, which are taken from its brief:

1. Whether the Claims Commission lacked subject matter jurisdiction to hold the State

liable under the gross-negligence exception to the recreational use statute, when the

State’s sovereign immunity has not been waived for acts of gross negligence.

2. Alternatively, whether the evidence preponderates against the Claims

Commission’s finding of gross negligence.

III. ANALYSIS

“[T]he State of Tennessee, as a sovereign, is immune from suit except as it consents

to be sued.” Stewart v. State, 33 S.W.3d 785, 790 (Tenn. 2000) (quoting Brewington v.

Brewington, 215 Tenn. 475, 480, 387 S.W.2d 777, 779 (Tenn. 1965)). “[T]he Tennessee

Constitution has modified this rule of absolute sovereign immunity by providing that

‘[s]uits may be brought against the State in such manner and in such courts as the

Legislature may by law direct.’” Id. (quoting Tenn. Const. art. I, § 17). As the Tennessee

Supreme Court has explained,

Pursuant to its constitutional power to provide for suits against the

state, the legislature created the Tennessee Claims Commission in 1984 to

hear and adjudicate certain monetary claims against the State of Tennessee.

See Tenn. Code Ann. §§ 9-8-301 to 307 (1999). While the Claims

Commission has exclusive jurisdiction to hear claims arising against the

state, cf. Tenn. Code Ann. § 20-13-102(a) (1994), this jurisdiction is limited

only to those claims specified in Tennessee Code Annotated section 9-8-

307(a). If a claim falls outside of the categories specified in section 9-8-

307(a), then the state retains its immunity from suit, and a claimant may not

seek relief from the state.

Stewart, 33 S.W.3d at 790 (citation and footnote omitted). Pursuant to Tennessee Code

Annotated section 9-8-307(a)(3), “the jurisdiction of the claims commission [is to be]

liberally construed to implement the remedial purpose of the legislation.” This liberality,

-3-

however, “does not authorize the amendment, alteration or extension of its provisions

beyond [the statute’s] obvious meaning.” Pollard v. Knox Cnty., 886 S.W.2d 759, 760

(Tenn. 1994). As a result,

when deciding whether a claim is within the proper statutory scope of the

Commission’s jurisdiction to hear and decide claims against the State of

Tennessee, we will give a liberal construction in favor of jurisdiction, but

only so long as (1) the particular grant of jurisdiction is ambiguous and

admits of several constructions, and (2) the most favorable view in support

of the petitioner’s claim is not clearly contrary to the statutory language used

by the General Assembly.

Stewart, 33 S.W.3d at 791 (quotation marks and citation omitted). Finally, “because issues

of statutory construction are questions of law, we review the issues involving the

jurisdiction of the Claims Commission de novo without any presumption that the legal

determinations of the commissioner were correct.” Id. (internal citation omitted).

Here, there is no dispute that Claimants brought this suit under Tennessee Code

Annotated section 9-8-307(a)(1)(C), which provides that the Claims Commission has

jurisdiction over claims against the State involving “[n]egligently created or maintained

dangerous conditions on state controlled real property.” The State further asserts that under

the recent Tennessee Supreme Court case of Lawson v. Hawkins County, the word

“negligently” in section 9-8-307(a)(1)(C), must be read to exclude claims of gross

negligence. 661 S.W.3d 54, 63 (Tenn. 2023). And because the Claims Commission found

that the State was grossly negligent, as required to avoid the immunity provided by the

recreational use statute, the State asserts that the Claims Commission lacked subject matter

jurisdiction to award Claimants damages in this matter. In other words, the State argues

that Claimants find themselves in the proverbial catch-22, where the State is immune from

a claim of negligence under the recreational use statute while also immune from a claim of

gross negligence under the Claims Commission Act, and that Claimants cannot recover

regardless of the State’s level of culpability. Unfortunately, we agree.

We begin first with a discussion of the Lawson opinion. In Lawson, the plaintiff

filed a complaint against the defendant county under the Tennessee Governmental Tort

Liability Act (“GTLA”) after her husband was killed in a car accident. 661 S.W.3d at 57.

The plaintiff’s complaint accused the county of gross negligence and recklessness. Id. at

57–58. The central question before the Tennessee Supreme Court was whether the GTLA

“allows a plaintiff to sue a governmental entity for employee conduct that exceeds mere

negligence.” Id. at 58. The Tennessee Supreme Court ultimately held that it did not.

In reaching this result, the court first considered the plain language of the GTLA,

which provides that governmental immunity is removed for an “injury proximately caused

by a negligent act or omission of any employee within the scope of his employment.” Id.

-4-

at 60 (quoting Tenn. Code Ann. § 29-20-205); see also id. at 59 (“When a statute uses a

common-law term without defining it, we assume the enacting legislature adopted the

term’s common-law meaning ‘unless a different sense is apparent from the context, or from

the general purpose of the statute.’” (quoting In re Est. of Starkey, 556 S.W.3d 811, 817

(Tenn. Ct. App. 2018))). The court therefore considered how the term “negligence” had

been defined by the common law at the time of the GTLA’s passage in 1973. According to

the court, it had “long defined negligence as the ‘want of ordinary care.’” Id. at 61

(collecting cases). Moreover, the court noted that negligence “does not require proof that

the defendant intended to harm the plaintiff or of any other mental state.” Id.

In contrast, the court explained that claims of recklessness and gross negligence

both require proof of the defendant’s subjective state of mind or mental state. Id. In

particular, the court observed that gross negligence requires a “mental attitude . . . of

indifference to injurious consequences, conscious recklessness of the rights of others.” Id.

(quoting Craig v. Stagner, 159 Tenn. 511, 19 S.W.2d 234, 236 (1929), abrogated on other

grounds by McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992)). The court noted that this

distinction “led Tennessee courts to attach different legal consequences to grossly negligent

behavior.” Id. at 62. And the court further noted that the plaintiff had presented

“no precedent using the term ‘negligence’ to encompass grossly negligent or reckless

conduct.” Id.

The court next looked at the statutory context of section 29-20-205. It remarked that

“[w]hen interpreting a statute, we generally presume that when the legislature uses one

term in one part of a statute, and a different term elsewhere in the same or a related statute,

those terms mean different things.” Id. at 63. Specifically, the court noted that the General

Assembly had used both “negligent” and “gross negligence” in section 29-20-205 and a

related statutory provision. Id. (citing Tenn. Code Ann. § 29-20-205(10) (involving a now-

repealed 2020 amendment to the GTLA providing an exception to the general waiver of

immunity for injuries “arising from COVID-19” unless the claimant can prove “gross

negligence”)). According to the court, “[t]he General Assembly’s use of both ‘negligent’

and ‘gross negligence’ in the very same section suggests that it understood the difference

in meaning between those two terms and used them intentionally.” Id.

Likewise, the court noted that Tennessee Code Annotated section 29-20-108 “grants

immunity to certain entities and individuals that provide emergency communication

services ‘except in cases of gross negligence’ or ‘gross negligence or willful misconduct.’”

Id. at 64 (quoting Tenn. Code Ann. § 29-20-108(a)–(c), (e)). And “the General Assembly’s

decision to use ‘gross negligence’ instead of simply ‘negligence’ suggests that it did not

view the terms as synonyms.” Id. Thus, the Tennessee Supreme Court ultimately concluded

that the GTLA “removes immunity only for ‘negligent’ employee acts. Common-law

precedent and statutory context make clear that the term ‘negligent’ in section -205 means

-5-

ordinary negligence, not gross negligence or recklessness.” Id.2

The State argues that although this case involves the Claims Commission Act, rather

than the GTLA, the result should be the same. The State points out that like the provision

of the GTLA at issue in Lawson, the provision of the Claims Commission Act at issue here

only provides for the removal of immunity for “[n]egligently created or maintained

dangerous conditions on state controlled real property.” Tenn. Code Ann. § 9-8-

307(a)(1)(C). The term “negligently” as used in section 9-8-307 is not defined by the

Claims Commission Act. And because the Claims Commission Act was enacted more than

ten years after the GTLA, Stewart, 33 S.W.3d at 790, the clear distinction between

negligence and either gross negligence or recklessness was long present in our case law at

the time the Claims Commission Act was enacted. So again, the General Assembly’s use

of the two terms indicates “that it understood the difference in meaning between those two

terms and used them intentionally.” Lawson, 661 S.W.3d at 63. Moreover, like section 29-

20-205, section 9-8-307 was also amended in 2020 to provide for an exception to any other

waiver of immunity for injuries arising from COVID-19, “unless the claimant proves by

clear and convincing evidence that the loss, damage, injury, or death was proximately

caused by an act or omission of the state or an employee or agent of the state constituting

gross negligence.” And other provisions of the Claims Commission Act likewise use the

term gross negligence, again suggesting that the General Assembly does not view those

terms synonymously. See Tenn. Code Ann. § 9-8-111(b)(3) (providing that the State is not

liable for loss, damage, or destruction of a motor vehicle if the loss “resulted from the

employee’s gross negligence”); Tenn. Code Ann. § 9-8-112(a)(1)–(2) (providing that the

board of claims would pay final judgments for state employees who were acting in good

faith in the scope of their official duty and under lawful orders unless “the employee’s

conduct amounted to gross negligence or willful, intentional or malicious conduct”).

We agree with the State that the analysis by the Tennessee Supreme Court in

Lawson applies with equal effect to the Claims Commission Act. Here, the accepted

definitions of negligence, gross negligence, and recklessness were distinct at the time of

the enactment of the Claims Commission Act and the GTLA. The Claims Commission

Act, like the GTLA, uses gross negligence in both the specific statutory section at issue

and other sections, indicating that the General Assembly understood that negligence and

gross negligence were distinct legal concepts. As such, it is difficult to conclude that the

rule adopted in Lawson should not be equally applicable here.

There is one distinction between the GTLA and the Claims Commission Act that

must be considered, however. While the GTLA is to be strictly construed, Lawson, 661

2

The Tennessee Supreme Court in Lawson went further to address, and ultimately reject, certain

concerns that were expressed by this Court in its intermediate appellate decision in Lawson. See id. 64–66.

For example, our supreme court rejected the notion that its holding incentivized governmental employees

to act recklessly because employees could still be held personally liable for such conduct. Id. at 65–66.

-6-

S.W.3d at 60, the Claims Commission Act is to be liberally construed to affect its remedial

purpose. Tenn. Code Ann. § 9-8-307(a)(3). Still, this Court has held that even when a rule

is subject to a liberal construction, “we cannot extend the language beyond its usual,

ordinary, or plain meaning.” Shockley v. Mental Health Coop., Inc., 429 S.W.3d 582, 591

(Tenn. Ct. App. 2013) (involving a rule of civil procedure). And as previously discussed,

we may only employ a liberal construction of the statute when, inter alia, “the particular

grant of jurisdiction is ambiguous and admits of several constructions[.]” Stewart, 33

S.W.3d at 791.

In our view, reference to outside definitions of a word does not automatically render

a statute’s words ambiguous, but merely guides the court in determining “the plain and

ordinary meaning of the word.” Shockley, 429 S.W.3d at 591 (quoting 82 C.J.S. Statutes §

415); see also Gardner v. Brown, 5 F.3d 1456, 1459 (Fed. Cir. 1993) (holding that the

legislature “is not required to define each and every word in a piece of legislation in order

to express clearly its will. A phrase appearing in the context of a statute may be

unambiguous where it ‘has a clearly accepted meaning in both legislative and judicial

practice,’ even though it is not explicitly defined by the statutory text.” (internal citation

omitted)), aff’d, 513 U.S. 115, 115 S. Ct. 552, 130 L. Ed. 2d 462 (1994). Thus, even where

the Tennessee Supreme Court has resorted to consideration of outside definitions to

ascertain the meaning of the terms of a statute, it has held that the statute was unambiguous

so long as those definitions “make[] clear the legislature’s intent[.]” Bryant v. Genco

Stamping & Mfg. Co., 33 S.W.3d 761, 766 (Tenn. 2000) (looking to the dictionary

definition of the term “physical” but nevertheless holding that the statute was

unambiguous); see also, e.g., State v. Welch, 595 S.W.3d 615, 623 (Tenn. 2020) (relying

on Black’s Law Dictionary to define a term in a statute and hold that it was unambiguous);

Pragnell v. Franklin, No. E2022-00524-COA-R3-CV, 2023 WL 2985261, at *10 (Tenn.

Ct. App. Apr. 18, 2023) (holding that because “Tennessee courts have defined the prima

facie case standard in other contexts, . . . it [is] a term with a well-recognized meaning in

the common law”).

The same is true of consideration of the broader statutory context of a statute. As

the Tennessee Supreme Court has explained,

In determining whether statutory language is ambiguous, courts are

not to put on blinders to all considerations outside the specific text in

question. In all cases involving statutory construction, judges must look not

only at “the language of the statute,” but also “its subject matter, the object

and reach of the statute, the wrong or evil which it seeks to remedy or

prevent, and the purpose sought to be accomplished in its enactment.” Spires

[v. Simpson], 539 S.W.3d [134,] 143 [Tenn. 2017)] (quoting [State v.]

Collins, 166 S.W.3d [721,] 726 [(Tenn. 2005)]) (citation omitted) (internal

quotation marks omitted). Furthermore, statutes should not be interpreted in

isolation. The overall statutory framework must be considered, and

-7-

“[s]tatutes that relate to the same subject matter or have a common purpose

must be read in pari materia so as to give the intended effect to both.” In re

Kaliyah S., 455 S.W.3d 533, 552 (Tenn. 2015). Depending on the

circumstances of a given case, consideration of the statute’s purpose, its

evolution over the course of time, and a longstanding interpretation by the

affected parties may be needed to properly evaluate whether a proffered

alternate interpretation is “a nonsensical or clearly erroneous interpretation

of a statute.” Powers v. State, 343 S.W.3d 36, 50 n.20 (Tenn. 2011)

(discussing ambiguity).

Coffee Cnty. Bd. of Educ. v. City of Tullahoma, 574 S.W.3d 832, 845–46 (Tenn. 2019).

Thus, it appears that a statute is only ambiguous and cannot be enforced “as written” if its

meaning cannot be determined after considering the above information. See State v.

Deberry, 651 S.W.3d 918, 925 (Tenn. 2022) (stating that we enforce a statute “as written”

after determining that the statute’s meaning was clear through consideration “of the

statutory text, the broader statutory framework, and any relevant canons of statutory

construction”).3 As a result, resort to well-recognized definitions or the broader statutory

scheme does not, ipso facto, render a statute ambiguous, if those sources make the statute’s

meaning clear.

In Lawson, the Tennessee Supreme Court specifically held that Tennessee law

“make[s] clear that the term “negligent” refers to ordinary negligence, not gross negligence

or recklessness[,]” after considering the common-law meaning of the terms and the

statutory context. Lawson, 661 S.W.3d at 64 (emphasis added). And even this Court in

Lawson, in holding that gross negligence and recklessness were merely “heightened forms

of negligence,” conceded that they were nevertheless distinct legal concepts and never

concluded that the term “negligent” in the GTLA was ambiguous. Lawson v. Hawkins

Cnty., No. E2020-01529-COA-R3-CV, 2021 WL 2949511, at *7 (Tenn. Ct. App. July 14,

2021), rev’d and remanded, 661 S.W.3d 54 (Tenn. 2023). Nor do Claimants assert in this

appeal that the use of the term “negligently” in section 9-8-307(a)(1)(C) is ambiguous for

purposes of the rule of liberality or cite any caselaw suggesting as such.4

3

We recognize that some other cases hold the opposite, including some from the Tennessee

Supreme Court. See, e.g., In re Est. of Tanner, 295 S.W.3d 610, 614 (Tenn. 2009) (“It is only when a

statute is ambiguous that we may reference the broader statutory scheme, the history of the legislation, or

other sources.”); see also M.R.D. v. Univ. of Tenn. at Knoxville, 689 S.W.3d 826, 833 (Tenn. Ct. App.

2023), (quoting this language from Estate of Tanner); Little v. City of Chattanooga, 650 S.W.3d 326, 354

(Tenn. Ct. App. 2022) (same). In this case, however, we hew to the most recent pronouncements of the

Tennessee Supreme Court specifically addressing this subject and conclude that in considering other

sections of the GTLA, the Tennessee Supreme Court did not impliedly hold that the term “negligent” was

ambiguous in Lawson.

4

Claimants’ brief does not actually argue in any fashion that the Claims Commission Act should

be liberally construed. The bulk of Claimants’ argument is set forth in footnote 5, infra. Rather, this issue

was raised in the State’s brief.

-8-

“Where a right of action is dependent upon the provisions of a statute . . . we are not

privileged to create such a right under the guise of a liberal interpretation of it.” Hamby v.

McDaniel, 559 S.W.2d 774, 777 (Tenn. 1977). In this case, the Tennessee General

Assembly appears to have understood the distinction between ordinary negligence and

gross negligence, as it did not use those terms synonymously throughout the Claims

Commission Act and those terms are well understood in this State. Cf. generally Sneed v.

City of Red Bank, Tennessee, 459 S.W.3d 17, 23 (Tenn. 2014) (holding that the court

presumes that the legislature “knows the state of the law” when it enacts new laws). Indeed,

other than the single instance involving COVID-19 claims, in each other instance where

gross negligence or other heightened types of culpability are mentioned in the Claims

Commission Act, it is to ensure that the State is not responsible for claims arising from

that level of culpability by its employees. See Tenn. Code Ann. § 9-8-111(b)(3); Tenn.

Code Ann. § 9-8-112(a)(1)–(2). Thus, reading section 9-8-307 in harmony with sections 9-

8-111 and 9-8-112 confirms the State’s fairly unwavering commitment to not be

responsible for claims arising from an employee’s gross negligence or other types of

heightened culpability outside the realm of the COVID-19 pandemic. C.f. generally In re

Kaliyah, 455 S.W.3d at 552. Thus, a conclusion that the Claims Commission was not

granted jurisdiction over damages claims arising from gross negligence or recklessness

perhaps applies with even more force in this case than under the GTLA. Under these

circumstances, we cannot conclude that an ambiguity exists such that section 9-8-

307(a)(1)(C) admits of several constructions as to whether claims for gross negligence

related to dangerous conditions on State property are within the subject matter jurisdiction

of the Claims Commission.

Rather than argue for a liberal construction of the Claims Commission Act,

Claimants assert that their claim must be considered not only in light of that act, but also

in light of the recreational use statute. A brief overview of the recreational use statute is

therefore helpful.

Pursuant to Tennessee Code Annotated section 70-7-102,

The landowner, lessee, occupant, or any person in control of land or premises

owes no duty of care to keep such land or premises safe for entry or use by

others for such recreational activities as hunting, fishing, trapping, camping,

water sports, white water rafting, canoeing, hiking, sightseeing, animal

riding, bird watching, dog training, boating, caving, fruit and vegetable

picking for the participant’s own use, nature and historical studies and

research, rock climbing, skeet and trap shooting, sporting clays, shooting

sports, and target shooting, including archery and shooting range activities,

skiing, off-road vehicle riding, and cutting or removing wood for the

participant’s own use, nor shall such landowner be required to give any

warning of hazardous conditions, uses of, structures, or activities on such

land or premises to any person entering on such land or premises for such

-9-

purposes, except as provided in § 70-7-104.

Tenn. Code Ann. § 70-7-102(a). The statute makes clear that “landowner” as used in the

statutes, “includes any governmental entity.” Tenn. Code Ann. § 70-7-101(2)(B). Thus, the

statute generally provides that landowners do not owe a duty of care or a duty to warn to

persons using land for the participant’s own recreational uses.

Tennessee Code Annotated section 70-7-104, however, provides for two exceptions

to this general grant of immunity:

This part does not limit the liability that otherwise exists for:

(1) Gross negligence, willful or wanton conduct that results in a failure to

guard or warn against a dangerous condition, use, structure or activity; or

(2) Injury caused by acts of persons to whom permission to hunt, fish, trap,

camp, hike, sightsee, cave, recreational noncommercial aircraft operations or

recreational noncommercial ultra light vehicle operations on private airstrips,

or any other legal purpose was granted, to third persons or to persons to

whom the person granting permission, or the landowner, lessee, occupant, or

any person in control of the land or premises, owed a duty to keep the land

or premises safe or to warn of danger.

Tenn. Code Ann. § 70-7-104(a). Our analysis of whether the Recreation Use statute applies

is therefore divided into two inquiries: “(1) whether the activity alleged is a recreational

activity as defined by the statute; and if so, (2) whether any of the statutory exceptions or

limitations to the immunity defense are applicable.” Parent v. State, 991 S.W.2d 240, 243

(Tenn. 1999).

Here, there is no dispute that the Child was using State-owned land for a recreational

activity as defined by the statute. However, the Claims Commission found that state

employees acted with gross negligence in failing to remove or warn of the broken pipe,

such that the first exception to the recreational use statute’s immunity could be imposed.

As we perceive it, Claimants argue that the Claims Commission Act must be read in

conjunction with the exception to immunity provided by the recreational use statute to

allow the claim for gross negligence under these circumstances.5

5

Respectfully, Claimants’ argument on this issue is scant. In relevant part, Claimants argue as

follows:

[Discussion of why the GTLA does not apply to claims against the State.]

The Claimants submit that any removal of “gross negligence,” as set forth in

Lawson v. Hawkins County, 661 S.W.3d 54 (Tenn. 2023), is simply removal of gross

negligence from claims that arise under the Governmental Tort Liability Act and, therefore,

should not apply to the case at bar. The Claimants further submit that the removal of “gross

negligence” from the Claims Commission Act would bar any future awards and/or claims

- 10 -

The Tennessee Supreme Court previously considered the intersection of the Claims

Commission Act and the recreational use statute in Parent v. State. In Parent, the

plaintiffs’ child was also injured at a state park.6 Id. at 241. The plaintiffs thereafter filed a

claim against the State in the Claims Commission, arguing that the State negligently

created or maintained a dangerous condition that caused their son’s accident. The State

responded, arguing that the claim failed to state a claim upon which relief could be granted

and that it was immune from suit under the recreational use statute. Id. at 241–42. The

Claims Commission dismissed the action, but the Court of Appeals reversed.

As the first issue on appeal, our supreme court addressed the question of whether

the plaintiffs’ complaint needed to allege one of the exceptions to immunity found in the

recreational use statute. The court concluded that it did not. In reaching this result, the

Parent court explained that the recreational use statute provided only “statutory immunity

in certain cases” for the general liability already provided by section 9-8-307(a)(1)(C):

The statutory right against the State as a landowner is codified at

Tenn. Code Ann. § 9-8-307(a)(1)(C). See Sanders v. State, 783 S.W.2d 948

(Tenn. Ct. App. 1989) (recognizing that Tenn. Code Ann. § 9-8-307(a)(1)(C)

removes the State’s immunity and codifies the common law obligations of

the owner or occupier of land). The State generally may be held liable for

“[n]egligently created or maintained dangerous conditions on state controlled

real property.” Tenn. Code Ann. § 9-8-307(a)(1)(C); see generally Hames v.

State, 808 S.W.2d 41 (Tenn. 1991); Byrd v. State, 905 S.W.2d 195 (Tenn.

Ct. App. 1995); Sanders, 783 S.W.2d at 948. The cause of action is expressly

provided for and is under the exclusive jurisdiction of the Tennessee claims

commission. Accordingly, all monetary claims against the State for

dangerous or defective conditions on real property are subject to the

procedures, guidelines, and monetary award caps of the claims commission.

The State’s general liability for negligently maintained real property

is subject to statutory immunity in certain cases. Tennessee Code Annotated

§§ 70-7-101 et seq. provides the State with limited immunity for injuries

under the Tennessee Claims Commission Act, specifically those requesting recovery under

the recreational use defense found specifically at T.C.A. §70-7-101, et seq.

[Discussion of how the exception to the recreational use statute was proven here.]

Therefore, this case is one that is not subject to the Tennessee Governmental Tort

Liability Act but is subject to the Tennessee Claims Commission Act and the Tennessee

Recreational Use Statutes. By limiting the State’s immunity by removing gross negligence

from the Tennessee Claims Commission Act, it would also remove any ability for recovery

under the Tennessee Recreational Use Statutes. It is also important to note the State, in its

brief, admitted they were guilty of ordinary negligence.

6

The child in Parent also required two surgeries. Id. at 241.

- 11 -

occurring on state-owned property during recreational use.

Parent, 991 S.W.2d at 242. Thus, the court held that

Tennessee Code Annotated §§ 70-7-101 et seq. is merely an affirmative

defense to other viable causes of action outside the recreational use statute.

The exceptions in Tenn. Code Ann. § 70-7-104 do not create new causes of

action. See Tenn. Code Ann. § 70-7-104 (“This chapter does not limit the

liability which otherwise exists for . . . .”). To adequately allege a claim, the

plaintiffs are not required to plead § 104 exceptions to the State’s immunity.

Section 104 merely operates to: (1) negate the recreational use defense, and

(2) allow a claimant to pursue a cause of action for which a recreational use

defense has been raised.

Id. at 242–43. The court therefore concluded that the claim was not predicated on the

recreational use statute, but the Claims Commission Act. Id. at 243 (“The plaintiffs’ claim

is predicated on and controlled by Tenn. Code Ann. § 9-8-307, the statute that governs the

cases heard by the claims commission.”). As a result, the plaintiffs were not required to

affirmatively plead an exception to the recreational use statute in their complaint. Id. The

court went on to hold that the plaintiffs met the first inquiry under the recreational use

statute—that the child was engaged in a recreational activity—and remanded for the

determination of whether any of the statutory exceptions could be proven. Id.

Although the legal issue presented in Parent is different from this case, the analysis

provides considerable guidance for the case-at-bar. Importantly, the Tennessee Supreme

Court in Parent makes clear that even when the recreational use statute is applicable, “[t]he

State’s liability . . . is still governed by and subject to the claims commission statute.” Id.

And the exceptions to the recreational use statute in section 70-7-104 “do not create new

causes of action.” Id. at 242. Thus, the exception contained in section 70-7-104(a)(1) only

applies to preserve “the liability that otherwise exists for ‘[g]ross negligence, willful or

wanton conduct that results in a failure to guard or warn against a dangerous condition,

use, structure or activity.’” McCaig v. Whitmore, No. W2015-00646-COA-R3-CV, 2016

WL 693154, at *6 (Tenn. Ct. App. Feb. 22, 2016) (emphasis added) (quoting Tenn. Code

Ann. § 70-7-104). Section 9-7-307(a)(1)(C), however, only waives the State’s immunity

for negligently created or maintained dangerous conditions on State-owned property. As

such, no liability for gross negligence “otherwise exists” to which the section 70-7-104

exception could attach. Unfortunately for Claimants, the “exclusive” way to impose

liability against the State in this case was to show that the Child’s injuries resulted from

“[n]egligently created or maintained dangerous conditions on state controlled real

property.” Tenn. Code Ann. § 9-7-307(a)(1)(C). But “what Tennessee Code Annotated

section 9-8-307(a)(1)(C) does to remove immunity from the State, the recreational use

statute taketh away.” Pierce v. State, No. M2020-00533-COA-R3-CV, 2021 WL 2627509,

at *5 (Tenn. Ct. App. June 25, 2021). The recreational use statute simply cannot preserve

- 12 -

something that never existed in the first instance.7 While this ruling leaves some claimants,

particularly, like here, those that likely cannot show the personal liability of any particular

State employee, without an easy remedy, it is well within the legislature’s constitutional

authority to limit the exposure of our State to damages claims as it sees fit. See Tenn. Const.

art. I, § 17. The damages awarded to Claimants must therefore be reversed.8 The State’s

alternative issue is pretermitted.

IV. CONCLUSION

The judgment of the Tennessee Claims Commission is reversed, and this matter is

remanded to the Claims Commission for further proceedings as may be necessary and

consistent with this Opinion. Costs of this appeal are taxed to Appellees, for which

execution may issue if necessary.

S/ J. Steven Stafford

J. STEVEN STAFFORD, JUDGE

7

We note that several Tennessee cases involving the recreational use statute have been filed against

the State, many of which discuss the gross negligence exception. See, e.g., Parent, 991 S.W.2d at 2423

(holding that consideration of any of the exceptions was premature); Victory v. State, No. M2020-01610-

COA-R3-CV, 2021 WL 5029407, at *1 (Tenn. Ct. App. Oct. 29, 2021) (affirming the claims

commissioner’s finding that the evidence was insufficient to prove gross negligence); Pierce, 2021 WL

2627509, at *5 (dismissing the case without ruling on whether the State committed gross negligence);

Mathews v. State, No. W2005-01042-COA-R3-CV, 2005 WL 3479318, at *4 (Tenn. Ct. App. Dec. 19,

2005) (holding the evidence insufficient to establish gross negligence); Morgan v. State, No. M2002-

02496-COA-R3-CV, 2004 WL 170352, at *6 (Tenn. Ct. App. Jan. 27, 2004) (finding no evidence upon

which a reasonable person could find gross negligence). Only one unreported Tennessee case, however,

has concluded that a claim of gross negligence against the State could move forward. See Rewcastle v.

State, No. E2002-00506-COA-R3-CV, 2002 WL 31926848, at *5 (Tenn. Ct. App. Dec. 31, 2002) (“We

hold that reasonable individuals could reach different conclusions as to whether the State was guilty of

gross negligence.”). None of these cases, however, have ever considered the question of whether the waiver

of immunity for negligence in section 9-8-307(a) includes claims for gross negligence or recklessness. “It

is axiomatic that judicial decisions do not stand for propositions that were neither raised by the parties nor

actually addressed by the court” Staats v. McKinnon, 206 S.W.3d 532, 550 (Tenn. Ct. App. 2006). These

cases therefore do not provide support for the notion that section 9-8-307(a)(1)(C) waives immunity for

claims of gross negligence or recklessness.

8

Our decision herein is not an indictment on the Claims Commission’s ruling in any way. The

Lawson decision was issued only months prior to the trial in this case, and the opinion was not cited to the

Claims Commission in the post-trial proceedings. Still, issues of subject matter jurisdiction may not be

waived, and Claimants have not asserted that the State’s argument is subject to waiver in this case. See

Dishmon v. Shelby State Cmty. Coll., 15 S.W.3d 477, 480 (Tenn. Ct. App. 1999) (“Parties cannot confer

subject matter jurisdiction on a trial or an appellate court by appearance, plea, consent, silence, or waiver.”).

- 13 -