Anthony Holder v. Shelby County, Tennessee

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

March 11, 2015 Session

ANTHONY HOLDER, ET AL. V. SHELBY COUNTY, TENNESSEE

Appeal from the Circuit Court for Shelby County

No. CT00175214 Karen R. Williams, Judge

No. W2014-01910-COA-R3-CV- Filed April 21, 2015

Appellant father filed a complaint for damages against the defendant county, alleging that the

negligence of a county employee caused the death of his son. The county filed a motion to

dismiss the complaint based upon sovereign immunity. The trial court granted the motion to

dismiss, concluding that the county employee‘s actions constituted intentional torts for which

immunity was not removed, and that the employee‘s actions were outside the scope of his

employment. We reverse and remand.

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

and Remanded

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the Court, in which BRANDON O.

GIBSON J., and JOHN EVERETT WILLIAMS, SP. J., joined.

Robert L. J. Spence, Jr., and Bryan M. Meredith, Memphis, Tennessee, for the appellant,

Anthony Holder, Individually and as next of kin of Decardis Holder, deceased.

Jean E. Markowitz and David E. McKinney, Memphis, Tennessee, for the appellee, Shelby

County, Tennessee.

OPINION

This case involves a complaint for damages filed by Plaintiff/Appellant Anthony

Holder (―Appellant‖) against Defendant/Appellee Shelby County, Tennessee (―Shelby

County‖) for the wrongful death of Mr. Holder‘s son, Decardis Holder (―Mr. Holder‖).

Because this case results from the trial court‘s grant of a motion to dismiss, we take the facts

from the Appellant‘s amended complaint.

Mr. Holder was involved in an automobile accident on April 20, 2013. The Memphis

Police Department (―MPD‖) responded to the scene and Mr. Holder was subsequently

arrested. Mr. Holder was charged with assault, failure to exercise reasonable care, ―violation

of financial law,‖ leaving the scene of an accident involving injury, disorderly conduct,

resisting arrest, and resisting official detention. The MPD transported Mr. Holder to the

Shelby County Jail, where he received a mental evaluation performed by agents of Shelby

County. The evaluation revealed that Mr. Holder suffered from a mental condition that

caused him to be unstable and that he was a threat to himself and others. This evaluation was

consistent with Mr. Holder‘s diagnosis of mental illness, for which he was undergoing

treatment at the time of the accident.

Due to the diagnosis, Mr. Holder was placed in a special jail housing unit for unstable

inmates, designated the ―N‖ housing unit. Inmates placed in the ―N‖ unit are classified as

mentally unstable. Shelby County policy dictates that guards perform a mandatory safety

check of the inmates of the ―N‖ unit at least every thirty minutes. On April 21, 2013, Deputy

Melvin Moore was assigned to Mr. Holder‘s unit between 2:00 p.m. and 10:00 p.m. At 9:16

p.m., Deputy Moore indicated that he checked the inmates and that they were all resting

peacefully. Deputy Moore later admitted, however, that he did not make the safety check as

documented in the log book and that he, in fact, could not recall the last time he observed Mr.

Holder living, breathing, or moving about. Indeed, Deputy Moore admitted that he failed to

complete even one entire mandated safety check during his eight hour shift on April 21,

2013. Had proper safety checks been performed, nothing would have obstructed Deputy

Moore‘s view of Mr. Holder‘s cell. When later questioned about his failure to complete the

mandatory safety checks, Deputy Moore stated that he could not recall the reason he failed to

complete the safety checks; however, Moore publicly stated that ―due to my negligence, a

guy lost his life.‖

After a shift change, Deputy Lorna Morris was assigned to Mr. Holder‘s unit. At

10:14 p.m., Deputy Morris discovered Mr. Holder hanging from a sheet in his cell. Deputy

Morris obtained assistance to remove the sheet from Mr. Holder‘s neck, and perform CPR.

Mr. Holder was warm and had a pulse, but was not breathing. Another Deputy that was

present observed drool from Mr. Holder‘s mouth; the Deputy described the drool as having

been there for ―a while.‖ Mr. Holder was transported to Methodist Hospital-Central, where

he eventually died from injuries related to asphyxiation.

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Procedural History

On April 18, 2014, Appellant filed a complaint for damages, individually, and on

behalf of his son, against Shelby County, alleging that Mr. Holder‘s death was the result of

Deputy Moore‘s negligence and that Shelby County was vicariously liable. Shelby County

filed a motion to dismiss for failure to state a claim for relief on May 27, 2014, arguing that

Tennessee Governmental Tort Liability Act (―GTLA‖) immunity was not removed because

Deputy Moore was not acting within the scope of his employment. Appellant filed a response

alleging that the negligence at issue was committed in the scope of Deputy Moore‘s

employment. Shelby County later filed a supplement to its motion to dismiss, arguing that the

complaint alleged only intentional acts of wrongdoing, for which Shelby County was

immune. Appellant filed an amended complaint on August 7, 2014, which specifically stated

that Mr. Holder‘s injuries were caused by the negligent acts of Shelby County employees

within the scope of their employment. On August 18, 2014, the trial court entered an order

dismissing the case, finding that the amended complaint failed to set forth any negligent acts

of Shelby County, and that Deputy Moore was not ―on or about Shelby County‘s business at

the time of his acts‖ because he was not hired to falsify logs. Appellant filed a timely notice

of appeal.

Issues Presented

In this appeal, Appellant raises two issues, which are taken, and slightly restated, from

his appellate brief:

1. Whether the trial court erred in ruling that the plaintiff failed to

allege negligent acts of Shelby County in the amended

complaint, and only alleged intentional acts.

2. Whether the trial court erred in ruling that Deputy Moore was

not acting within the scope of his employment.

Standard of Review

The Tennessee Supreme Court recently outlined the standard of review where a party

defending an action files a motion to dismiss the plaintiff‘s complaint for failure to state a

claim upon which relief can be granted:

A Rule 12.02(6) [of the Tennessee Rules of Civil

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Procedure]1 motion challenges only the legal sufficiency of the

complaint, not the strength of the plaintiff‘s proof or evidence.

Highwoods Props., Inc. v. City of Memphis, 297 S.W.3d 695,

700 (Tenn. 2009); Willis v. Tenn. Dep’t of Corr., 113 S.W.3d

706, 710 (Tenn. 2003); Bell ex rel. Snyder v. Icard, Merrill,

Cullis, Timm, Furen & Ginsburg, P.A., 986 S.W.2d 550, 554

(Tenn. 1999); Sanders v. Vinson, 558 S.W.2d 838, 840 (Tenn.

1977). The resolution of a 12.02(6) motion to dismiss is

determined by an examination of the pleadings alone. Leggett v.

Duke Energy Corp., 308 S.W.3d 843, 851 (Tenn. 2010); Trau-

Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696

(Tenn. 2002); Cook ex rel. Uithoven v. Spinnaker’s of

Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn. 1994); Cornpropst

v. Sloan, 528 S.W.2d 188, 190 (Tenn. 1975) (overruled on other

grounds by McClung v. Delta Square Ltd. P’ship, 937 S.W.2d

891, 899–900 (Tenn. 1996)). A defendant who files a motion to

dismiss ―‗admits the truth of all of the relevant and material

allegations contained in the complaint, but . . . asserts that the

allegations fail to establish a cause of action.‘‖ Brown v. Tenn.

Title Loans, Inc., 328 S.W.3d 850, 854 (Tenn. 2010) (quoting

Freeman Indus., LLC v. Eastman Chem. Co., 172 S.W.3d 512,

516 (Tenn. 2005)); see Edwards v. Allen, 216 S.W.3d 278, 284

(Tenn. 2007); White v. Revco Disc. Drug Ctrs., Inc., 33 S.W.3d

713, 718 (Tenn. 2000); Holloway v. Putnam Cnty., 534 S.W.2d

292, 296 (Tenn. 1976).

In considering a motion to dismiss, courts ―‗must

construe the complaint liberally, presuming all factual

allegations to be true and giving the plaintiff the benefit of all

reasonable inferences.‘‖ Tigg v. Pirelli Tire Corp., 232 S.W.3d

28, 31–32 (Tenn. 2007) (quoting Trau–Med, 71 S.W.3d at 696);

see Leach v. Taylor, 124 S.W.3d 87, 92–93 (Tenn. 2004); Stein

v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997);

Bellar v. Baptist Hosp., Inc., 559 S.W.2d 788, 790 (Tenn.

1978); see also City of Brentwood v. Metro. Bd. of Zoning

Appeals, 149 S.W.3d 49, 54 (Tenn. Ct. App. 2004) (holding that

courts ―must construe the complaint liberally in favor of the

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Rule 12.02(6) provides that defendant may seek to dismiss a plaintiff‘s complaint for ―failure to state a

claim upon which relief can be granted.‖

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plaintiff by . . . giving the plaintiff the benefit of all the

inferences that can be reasonably drawn from the pleaded

facts‖). A trial court should grant a motion to dismiss ―only

when it appears that the plaintiff can prove no set of facts in

support of the claim that would entitle the plaintiff to relief.‖

Crews v. Buckman Labs. Int’l, Inc., 78 S.W.3d 852, 857 (Tenn.

2002); see Lanier v. Rains, 229 S.W.3d 656, 660 (Tenn. 2007);

Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn. 1999); Pemberton

v. Am. Distilled Spirits Co., 664 S.W.2d 690, 691 (Tenn. 1984);

Fuerst v. Methodist Hosp. S., 566 S.W.2d 847, 848 (Tenn.

1978); Ladd v. Roane Hosiery, Inc., 556 S.W.2d 758, 759–60

(Tenn. 1977). We review the trial court‘s legal conclusions

regarding the adequacy of the complaint de novo. Brown, 328

S.W.3d at 855; Stein, 945 S.W.2d at 716.

Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011).

Analysis

A.

Appellant first argues that the trial court erred in concluding that his complaint alleged

only intentional acts committed by Deputy Moore, for which Shelby County is immune under

the GTLA. This case involves a tort action brought against a governmental entity, and

therefore, it is governed by the GTLA. See Tenn. Code Ann. § 29-20-101 et seq. A

governmental entity is generally immune ―from suits arising out of the exercise and discharge

of a State entity‘s functions,‖ Whitmore v. Shelby County Gov’t, No. W2010-01890-COA-

R3-CV, 2011 WL 3558285, at *3 (Tenn. Ct. App. Aug. 15, 2011), and the GTLA, which

reaffirms the doctrine of sovereign immunity, waives this immunity only ―‗in limited and

enumerated instances for certain injuries[.]‘‖ See Lynn v. City of Jackson, 63 S.W.3d 322,

337 (Tenn. 2001) (citing Tenn. Code Ann. § 29-20-201(a); Hawks v. City of Westmoreland,

960 S.W.2d 10, 14 (Tenn. 1997)). Relevant to this case, the GTLA provides:

Immunity from suit of all 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:

* * *

(6) Misrepresentation by an employee whether or not such is

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negligent or intentional; . . . .

Tenn. Code Ann. § 29-20-205. Furthermore, the Tennessee Supreme Court has held that

―‗the GTLA does not allow plaintiffs to hold governmental entities vicariously liable for

intentional torts not exempted under section 29-20-205(2), but rather requires a direct

showing [of] negligence on the part of the governmental entity.‘‖2 Hughes v. Metropolitan

Government of Nashville and Davidson County, 340 S.W.3d 352, 368 (Tenn. 2011)

(quoting Pendleton v. Metro. Gov’t of Nashville & Davidson Cnty., No. M2004-01910-

COA-R3-CV, 2005 WL 2138240, at *3 (Tenn. Ct. App. Sept. 1, 2005) (citing Limbaugh v.

Coffee Med. Ctr., 59 S.W.3d 73, 84 (Tenn. 2001))).

As previously discussed, Shelby County argued in the trial court that because all of

Deputy Moore‘s alleged actions were intentional, immunity was not removed and

Appellant‘s amended complaint should be dismissed. Appellant argues that his amended

complaint clearly contemplates that Deputy Moore‘s actions constituted negligence.

Accordingly, a review of the relevant allegations in Appellant‘s amended complaint is

helpful.

According to the amended complaint:

19. At all times relevant hereto, [Mr.] Holder was classified as

unstable.

20. At all times relevant hereto, [Mr.] Holder was classified as a

threat to himself and/or others.

21. At all times relevant hereto, the Shelby County Sheriff[‘]s

Office policies and procedures required that corrections officers

assigned to the ―N‖ housing unit in the Shelby County Jail

perform a safety check on each inmate housed in the ―N‖

housing unit at least every thirty (30) minutes.

* * *

23. At 9:16 p.m. on the April 21, 2013 and near the end of his

shift, Deputy Moore documented in the jail‘s log book that he

had completed a security round cell to cell check at 9:16 p.m.

and that wrote ―Inmates was resting on their bunks and standing

at their doors.‖

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There is no allegation in the complaint that Shelby County committed negligence directly.

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24. Deputy Moore has admitted . . . that he did not make the

security round as documented in the log book and that he could

not recall when the last time he observed [Mr. Holder] living,

breathing, or moving about.

25. Deputy Moore has admitted that he did not complete a final

security round in the housing unit and that, on April 21, 2013, he

never made a complete security round in ―N‖ housing unit

during his eight (8) hour shift.

26. Deputy Moore has admitted that he was unable to recall the

reason he failed to conduct the security rounds; however,

[Deputy] Moore has publicly stated that ―due to my negligence,

a guy lost his life.‖

27. Deputy Moore‘s failure to carry out safety checks in the ―N‖

housing unit on April 21, 2013 every thirty (30) minutes violated

the pre-existing policies and regulations of [Shelby County].

28. At all times relevant hereto, Corrections Deputy Melvin

Moore was an employee of [] Shelby County.

The amended complaint further states that Deputy Moore‘s inaction constituted negligence,

which was the legal and proximate cause of Mr. Holder‘s death.

Clearly, Appellant generally characterizes Deputy Moore‘s inaction in this case as

negligence. Shelby County argues that regardless of how these actions or inactions are

characterized in Appellant‘s amended complaint, the acts alleged are all intentional acts.

Specifically, Shelby County points to the allegation regarding Deputy Moore‘s alleged

falsification of the log book, which it argues falls squarely within Tennessee Code Annotated

Section 29-20-205(6) regarding intentional or negligent misrepresentations. See Tenn. Code

Ann. § 29-20-205(6) (indicating that immunity is not removed when injury results from

―[m]isrepresentation by an employee whether or not such is negligent or intentional‖). In his

reply brief, Appellant appears to concede that this allegation may involve a negligent or

intentional misrepresentation as contemplated under Tennessee Code Annotated Section 29-

20-205(6). Appellant argues, however, that this allegation is irrelevant as Deputy Moore‘s

falsification of the log book is not alleged to have been the legal or proximate cause of Mr.

Holder‘s death; instead, Appellant contends that Mr. Holder‘s death was caused by Deputy

Moore‘s failure to make the required checks, regardless of whether the log book was

falsified. Given Appellant‘s apparent concession that the falsification of the log books

constituted a negligent or intentional misrepresentation pursuant to Tennessee Code

Annotated Section 29-20-205(6), we agree with Shelby County that immunity was not

removed for this action.

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Our conclusion regarding the falsification of the log books, however, does not end the

inquiry. With regard to the remaining allegations, we must conclude that Appellant‘s

amended complaint, taken as true, and viewed in the light most favorable to Appellant,

alleges negligent acts or omissions on the part of Deputy Moore. As previously discussed, the

amended complaint alleges that Deputy Moore failed to make the required security checks.

The amended complaint further indicates that Deputy Moore could not articulate the reason

for his failure to make the required checks, but that he later characterized his inaction as

―negligence.‖ The amended complaint also makes clear that this inaction on the part of

Deputy Moore was the legal and proximate cause of Mr. Holder‘s death.

The Tennessee Supreme Court was faced with a somewhat similar situation in

Hughes v. Metropolitan Government of Nashville and Davidson County. In Hughes, the

issue concerned whether immunity was removed with regard to injuries resulting from the

operation of public works equipment by a government employee. Hughes, 340 S.W.3d 352,

368–69 (Tenn. 2011). At the conclusion of a bench trial, the trial court ruled that although the

employee ―intended to drive the vehicle in a negligent or careless manner,‖ the employee

merely committed negligence. Thus, the trial court ruled that immunity was removed. Id. at

367–68.

On appeal, the Tennessee Supreme Court was tasked with determining whether the

injuries resulted from the employee‘s negligence, for which immunity was removed, or

assault, for which immunity was not removed. Id. at 369. In determining that the employee

committed the intentional tort of assault, the Court focused on the intent required to prove the

tort of assault. The Court concluded that to commit the intentional tort of assault, the

tortfeasor must intend ―to create an apprehension of harm.‖ Id. at 371. The trial court

specifically found that the employee in Hughes intended to frighten the plaintiff, which

finding was supported by the testimony of witnesses. Thus, the Court held that the intention

element of the tort of assault had been met. Id. at 371–72. Accordingly, the Court concluded

that the employee committed an intentional tort, for which immunity was not removed. Id.

The facts and procedure in Hughes are simply not analogous to this case. First, we

note that the Tennessee Supreme Court determined that an intentional tort had been

committed only after a trial on the merits. In addition, the Court specifically relied upon

factual findings made by the trial court. In this case, however, Shelby County seeks to

dismiss this case simply based upon Appellant‘s amended complaint. As previously

discussed, however, Appellant‘s amended complaint characterizes Deputy Moore‘s inaction

as negligence. Thus, while the Court in Hughes had the benefit of evidence, testimony, and

fact-finding by the trial court, this Court must determine the issue solely under the liberal

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standard for determining a motion to dismiss. A motion to dismiss, however, is particularly

ill-suited for determining these types of factual issues:

[I]t must be remembered that we are addressing the standard in

assessing the sufficiency of a single document filed at the very

beginning of a case—the complaint. Our motion-to-dismiss

jurisprudence reflects the principle that this stage of the

proceedings is particularly ill-suited for an evaluation of the

likelihood of success on the merits or of the weight of the facts

pleaded, or as a docket-clearing mechanism.

Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 437 (Tenn. 2011).

Further, having thoroughly reviewed the allegations in the amended complaint, we

note that nothing in the complaint indicates Deputy Moore‘s state of mind at the time of the

inaction at issue in this case. As discussed above, the employee‘s intent was the dispositive

issue in determining whether negligence or an intentional tort was committed in Hughes. Id.

at 371; see also King v. Ross Coal Co., 684 S.W.2d 617, 620 (Tenn. App. 1984) (―[I]t takes

more than a mere inference of tortious intent to convert the defendant‘s negligence into an

intentional tort.‖). Neither party cites any law regarding the distinguishing factors between

negligent acts or omissions and intentional conduct. As explained in American

Jurisprudence:

The distinguishing factor between intentional tortious

conduct and negligent conduct is that the intentional actor has

the desire to bring about the consequences that follow or the

substantial certainty that they will occur, while a negligent actor

does not desire to bring about the consequences which follow,

nor does he or she know that they are substantially certain to

occur, or believe that they will; there is merely a risk of such

consequences, sufficiently great to lead a reasonable person in

his or her position to anticipate them, and to guard against them.

Thus, the principal difference between negligent and intentional

conduct is a difference in the probability, under the

circumstances known to the actor and according to common

experience, that certain consequence or a class of consequences

will follow from a certain act.

57A Am. Jur. 2d Negligence § 30. Here, the amended complaint indicates that Deputy Moore

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could not recall the reason he had not made the required security checks; a favorable reading

of this allegation could indicate that Deputy Moore‘s inaction was the result of being overly

burdened by other tasks during his shift or any other number of facts that would indicate that

Deputy Moore‘s inaction was negligent rather than intentional. In fact, Deputy Moore later

characterized his inaction as negligence. Nothing in the amended complaint indicates that

Deputy Moore had the desire to bring about Mr. Holder‘s death, or that he was

―substantial[ly] certain‖ that such would occur. See id. Accordingly, there is simply no

allegation contained in the amended complaint from which this Court could conclude that

Deputy Moore had the requisite intent to convert the allegation of negligence into an

intentional tort.

Finally, while in Hughes, the defendant governmental entity argued in the trial court

and on appeal that rather than negligence, that employee committed the specific tort of

assault. Id. at 369. A thorough review of both the trial record and Shelby County‘s appellate

brief reveals that Shelby County never alleged that Deputy Moore committed a specific

intentional tort other than with regard to the allegation of falsification of the log book,

discussed supra. Indeed, other than the specific allegation in Appellants‘ complaint regarding

the falsification of the log book, neither Shelby County‘s motion to dismiss, memorandum in

support of its motion to dismiss, nor appellate brief offer any legal authority for its contention

that the remaining actions or inactions alleged in the amended complaint were intentional

rather than negligent. Instead, this assertion is merely conclusory. Under these

circumstances, we conclude that Appellant‘s amended complaint sufficiently alleges acts of

negligence on the part of Deputy Moore to survive Shelby County‘s motion to dismiss.

B.

Appellant next argues that the trial court erred in finding that Deputy Moore was not

acting within the scope of his employment in failing to make the required security checks.

Tennessee Code Annotated Section 29-20-205 makes clear that immunity is only removed

for those negligent acts or omissions that are committed ―within the scope of [the tortfeasor

employee‘s] employment.‖ As such, Deputy Moore‘s failure to perform the mandated

security checks must have been within the scope of his employment.

Whether an employee is acting within the scope of his or her employment is a question

of fact. Hughes v. Metro. Gov’t of Nashville and Davidson Cnty., 340 S.W.3d 352, 361

(Tenn. 2011) (citing Home Stores, Inc. v. Parker, 179 Tenn. 372, 166 S.W.2d 619, 622

(1942); Tenn. Farmers Mut. Ins. Co. v. Am. Mut. Liab. Ins. Co., 840 S.W.2d 933, 937

(Tenn. Ct. App. 1992) (observing that the determination as to whether an act occurred within

the scope of employment ―requires the weighing and balancing of the facts and

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circumstances of each case‖)); Restatement (Second) of Agency § 229 cmt. a (1958) (―The

limits of the scope of employment are dependent upon the facts of the particular case[.]‖).

Due to the fact-intensive nature of this inquiry, the Tennessee Supreme Court has adopted a

multi-factor test for determining whether an employee acted within the scope of his or her

employment for purposes of GTLA immunity. See Hughes, 340 S.W.3d at 363–65.

According to the Tennessee Supreme Court, courts considering this issue should consider the

following test from the Restatement (Second) of Agency:

(1) Conduct of the servant is within the scope of

employment if, but only if:

(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time and

space limits;

(c) it is actuated, at least in part, by a purpose to serve the

master; and

(d) if force is intentionally used by the servant against

another, the use of force is not unexpectable by the

master.

(2) Conduct of the servant is not within the scope of

employment if it is different in kind from that authorized, far

beyond the authorized time and space limits, or too little

actuated by a purpose to serve the master.

Hughes, 340 S.W.3d at 363–64 (citing Restatement (Second) of Agency § 228). In addition,

the Court concluded that the following factors provided an ―instructive framework for an

analysis that is ultimately ‗dependent upon the facts of the particular case.‘‖ Hughes, 340

S.W.3d at 365 (quoting Restatement (Second) of Agency § 229 cmt. A):

(2) In determining whether or not the conduct although not

authorized, is nevertheless so similar to or incidental to the

conduct authorized as to be within the scope of employment, the

following matters of fact are to be considered:

(a) whether or not the act is one commonly done by such

servants;

(b) the time, place and purpose of the act;

(c) the previous relations between the master and the

servant;

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(d) the extent to which the business of the master is

apportioned between different servants;

(e) whether or not the act is outside the enterprise of the

master or, if within the enterprise, has not been entrusted

to any servant;

(f) whether or not the master has reason to expect such an

act will be done;

(g) the similarity in quality of the act done to the act

authorized;

(h) whether or not the instrumentality by which the harm

is done has been furnished by the master to the servant;

(i) the extent of departure from the normal method of

accomplishing an authorized result; and

(j) whether or not the act is seriously criminal.

Hughes, 340 S.W.3d at 365 (quoting Restatement (Second) of Agency § 229(2)).

Based on the foregoing, it is clear that the Tennessee Supreme Court contemplated

that the issue of whether an employee acted outside the scope of his or her employment

constitutes a fact-intensive inquiry. See Hughes, 340 S.W.3d at 366 (describing the inquiry

as not being based upon a ―bright-line rule,‖ but instead as being determined by consideration

of several ―fact-intensive‖ factors). As such, the factors listed above involve factual inquiries

that cannot be determined ―by an examination of the pleadings alone.‖ Webb v. Nashville

Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011) (citing Leggett v. Duke

Energy Corp., 308 S.W.3d 843, 851 (Tenn. 2010)). Indeed, Hughes was not decided at the

motion to dismiss stage of litigation, but instead was determined after a trial on the merits.

Hughes, 340 S.W.3d at 364.

Furthermore, as previously discussed, in the motion to dismiss stage, we must take all

factual allegations in the complaint as true. Webb, 346 S.W.3d at 426 (quoting Tigg v. Pirelli

Tire Corp., 232 S.W.3d 28, 31–32 (Tenn. 2007)). The question of whether an employee was

acting within the scope of his or her employment is a question of fact. Hughes, 340 S.W.3d

at 361. Appellant‘s amended complaint contains the following relevant allegation: ―The

negligence of Deputy Moore set forth herein was committed by Deputy Moore within the

course and scope of his employment.‖ Because this is a factual allegation, we must take it as

true for purposes of Shelby County‘s motion to dismiss. Thus, Appellant‘s amended

complaint clearly alleges that Deputy Moore‘s negligence was committed within the scope of

his employment. Accordingly, the trial court erred in dismissing Appellant‘s amended

complaint on the basis that Deputy Moore‘s actions were taken outside the scope of his

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employment.

Conclusion

The judgment of the Circuit Court of Shelby County is reversed and this matter is

remanded to the trial court for further proceedings consistent with this Opinion. Costs of this

appeal are taxed to Appellee, Shelby County, for which execution may issue, if necessary.

_________________________________

J. STEVEN STAFFORD, JUDGE

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