Janet C. Fleming v. City of Memphis

03/05/2019

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 1, 2019

JANET C. FLEMING v. CITY OF MEMPHIS

Appeal from the Circuit Court for Shelby County

No. CT-004846-10 Robert Samual Weiss, Judge

No. W2018-00984-COA-R3-CV

This appeal concerns whether the public duty doctrine, which immunizes public

employees and governmental entities from liability when their duty is owed to the general

public rather than any particular individual, survived the 1973 enactment of the

Governmental Tort Liability Act (“The GTLA”). While walking in Memphis, Janet C.

Fleming (“Plaintiff”) was bitten by a pit bull. Plaintiff sued the City of Memphis

(“Defendant”) in the Circuit Court for Shelby County (“the Trial Court”) alleging that

Defendant knew of the dog’s violent tendencies from prior incidents and should have

taken stronger preventative action. Defendant filed a motion for summary judgment

asserting the public duty doctrine. The Trial Court granted the motion. Plaintiff appeals,

arguing that the GTLA supersedes the public duty doctrine despite the fact that our

Supreme Court has held otherwise in a never-overturned opinion. Constrained to adhere

to our Supreme Court’s binding precedent, we hold that the public duty doctrine was not

superseded by the GTLA. We hold further that while the GTLA does not provide

immunity to Defendant, the public duty doctrine does because Defendant’s duty was to

the public at large and Plaintiff has not established a special duty exception. We,

therefore, affirm the judgment of the Trial Court.

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

Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which FRANK G.

CLEMENT, JR., P.J., M.S., and KENNY W. ARMSTRONG, J., joined.

Jason J. Yasinsky and David A. Siegel, Memphis, Tennessee, for the appellant, Janet C.

Fleming.

Bruce McMullen, City Attorney; and, Sharon L. Petty, Senior Assistant City Attorney,

for the appellee, the City of Memphis.

OPINION

Background

On March 20, 2010, Plaintiff went for a walk along Raleigh-LaGrange Road in

Memphis not far from where she lived. A pit bull named Diesel broke loose from where

he was chained to a tree and attacked Plaintiff. Badly mauled, Plaintiff was rushed to the

hospital with injuries to her legs. Diesel subsequently was removed from his owner and

quarantined.

In September 2010, Plaintiff sued Defendant in the Trial Court.1 Plaintiff alleged,

in part, the following: “As a direct and proximate result of the Defendants’ negligence,

gross negligence, willful, wanton and reckless behavior, Plaintiff, Janet Fleming, suffered

excruciating pain and suffering, personal injury, permanent scarring, fright and shock,

mental anguish and inability to enjoy the normal pleasures of life.” According to

Plaintiff’s complaint, Defendant “had actual prior notice of this dog’s vicious

propensities.” Defendant filed an answer asserting the public duty doctrine as a defense.

In September 2015, Defendant filed a motion for summary judgment. In its

supporting memorandum, Defendant again asserted the public duty doctrine and stated

that “[i]f a duty to issue a citation existed, it existed to the ‘public at large’, not to Ms.

Fleming specifically.” In her response, Plaintiff argued that the GTLA superseded the

public duty doctrine and that, even if the public duty doctrine survived, it would not

apply in Plaintiff’s case because she was a foreseeable plaintiff.

In December 2015, the Trial Court heard Defendant’s motion for summary

judgment. In January 2016, the Trial Court entered its order granting summary judgment

in favor of Defendant. The Trial Court found and held, in relevant part:

1. The Plaintiff, Janet Fleming was attacked by a pit bull (Diesel)

while taking her regular walk along Raleigh-Lagrange Rd on March 20,

2010[.]

2. The dog was owned by Stephen Thornton and in the care and

under the control of Samuel Thornton.

3[.] On June 12, 2007, a one month old pit bull named Diesel bit a

child on the stomach while the child was playing with the dog. The owner

of the dog at that time was Stacey Powers. After required quarantine,

Diesel was returned to Ms Powers.

1

Plaintiff also sued Samuel Thornton, Stephen Thornton, and Samuel Thornton d/b/a Thornton AC &

Heating, but later dismissed them voluntarily. Only Defendant remains.

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4. [A.I.], age 14, was attacked and bitten on his right thigh by a pit

bull named Diesel after Defendant, Samuel Thornton let the dog off his

chain[.] The animal was quarantined at the Memphis Animal Shelter from

March 6, 2010 to March 17, 2010[.]

5. Based upon the information received from police, the animal

control worker, David Johnson, did not believe there were grounds upon

which supported seeking a petition to declare the dog dangerous and

vicious under City ordinance[.]

6. On March 20, 2010, according to police report, Diesel broke its

collar and attacked Ms. Fleming. Samuel Thornton was issued a citation by

animal control and the dog was taken to the Memphis Animal Shelter.

***

8. The Tennessee Governmental Tort Liability Act (hereinafter,

“GTLA”), Tenn. Code Ann § 29-2-101 et. seq., removes that immunity for

injuries arising from certain types of acts by public officers and employees,

but retains it for others

9. Tenn. Code Ann. § 29-20-205 reads in pertinent part[:]

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

(1) the exercise or performance or the failure to exercise or

perform a discretionary function, whether or not the

discretion is abused.

10. In other words, local governments retain legal immunity for

negligent acts or omissions of their employees which lead to injury, if those

acts or omissions involved the performance of a discretionary function[.]

***

12. In Bowers, the Supreme Court noted that it had previously

defined discretionary functions on the basis of a distinction between

ministerial functions, where the governmental officer’s duty is “absolute,

certain and imperative,” and all the other functions where some degree of

judgment, and therefore of discretion, is involved.

13[.] The court declared that the discretionary/ministerial distinction

was imprecise and likely to lead to inconsistent results, and it substituted in

its place an analysis which distinguishes between those acts performed at

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the planning level and those performed at the operational level[.] Id[.] at

430-431[.]

***

16. In the case a[t] bar, the animal control officer, David Johnson,

was required to exercise his discretion in how to deal with the pit bull

following the attack on Mr. [I.], but that did not transform the nature [of]

his actions from operational to discretionary.

17. Therefore, the City of Memphis was not rendered immune from

liability under the GTLA.

18. Just because a governmental entity is not rendered immune under

the GTLA, that does not prevent such a defendant from invoking the public

duty doctrine, another possible source of immunity in appropriate cases, nor

does it excuse a plaintiff from having to establish all the elements of a

claim before he or she can prevail.

19. The public duty doctrine is a common law defense which shields

public employees from suits for injuries that are caused by the employee’s

breach of a duty owed to the public at large rather than to the individual

plaintiff, and it likewise shields local governmental entities from such

liability. Ezell v Cockrell, 902 S[.] W[.] 2d at 397 (Tenn. 1995)[.]

***

21. In Ezell v Cockrell, our Supreme Court recognized an exception

to the immunity enjoyed by local governmental entities under the public

duty doctrine, which arises where a special relationship between the

plaintiff and the public employee creates a special duty which is more

specific to the plaintiff than the duty owed by the employee to the public at

large[.] Ezell, 902 S.W.2d at 401.

22. The court, in Ezell, noted that while the Special Duty Exception

was recognized by most jurisdictions applying the public duty doctrine, its

application varied from jurisdiction to jurisdiction. After discussing

various formulations, the court concluded that,

... a special duty of care exists when 1) officials, by their

actions, affirmatively undertake to protect the plaintiff, and

the plaintiff relies upon the undertaking; 2) a statute

specifically provides for a cause of action against an official

or municipality for injuries resulting to a particular class of

individuals, of which the plaintiff is a member, from failure to

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enforce certain laws; or 3) the plaintiff alleges a cause of

action involving intent, malice, or reckless misconduct[.] Id.

at 402.

23. In the case at bar, no special duty exists, the duty that was owed

to Ms. Fleming was the same duty that was owed to the general public.

24. Ms. Fleming being in the neighborhood does not rise to the level

of a special class such that a special duty of care would apply.

In May 2018, the Trial Court entered an order of voluntary dismissal without prejudice

with respect to the other defendants in the case. Plaintiff timely appealed to this Court.

Discussion

We restate and consolidate the issues Plaintiff raises on appeal into the following

two dispositive issues: 1) whether the GTLA supersedes the public duty doctrine; and, 2)

if the public duty doctrine survives, whether the Trial Court erred in finding that it applies

in the instant case.

This case was decided by means of summary judgment. As our Supreme Court

has instructed:

Summary judgment is appropriate when “the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of law.”

Tenn. R. Civ. P. 56.04. We review a trial court’s ruling on a motion for

summary judgment de novo, without a presumption of correctness. Bain v.

Wells, 936 S.W.2d 618, 622 (Tenn. 1997); see also Abshure v. Methodist

Healthcare–Memphis Hosp., 325 S.W.3d 98, 103 (Tenn. 2010). In doing

so, we make a fresh determination of whether the requirements of Rule 56

of the Tennessee Rules of Civil Procedure have been satisfied. Estate of

Brown, 402 S.W.3d 193, 198 (Tenn. 2013) (citing Hughes v. New Life Dev.

Corp., 387 S.W.3d 453, 471 (Tenn. 2012)).

***

[I]n Tennessee, as in the federal system, when the moving party does not

bear the burden of proof at trial, the moving party may satisfy its burden of

production either (1) by affirmatively negating an essential element of the

nonmoving party’s claim or (2) by demonstrating that the nonmoving

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party’s evidence at the summary judgment stage is insufficient to establish

the nonmoving party’s claim or defense. We reiterate that a moving party

seeking summary judgment by attacking the nonmoving party’s evidence

must do more than make a conclusory assertion that summary judgment is

appropriate on this basis. Rather, Tennessee Rule 56.03 requires the

moving party to support its motion with “a separate concise statement of

material facts as to which the moving party contends there is no genuine

issue for trial.” Tenn. R. Civ. P. 56.03. “Each fact is to be set forth in a

separate, numbered paragraph and supported by a specific citation to the

record.” Id. When such a motion is made, any party opposing summary

judgment must file a response to each fact set forth by the movant in the

manner provided in Tennessee Rule 56.03. “[W]hen a motion for summary

judgment is made [and] . . . supported as provided in [Tennessee Rule 56],”

to survive summary judgment, the nonmoving party “may not rest upon the

mere allegations or denials of [its] pleading,” but must respond, and by

affidavits or one of the other means provided in Tennessee Rule 56, “set

forth specific facts” at the summary judgment stage “showing that there is a

genuine issue for trial.” Tenn. R. Civ. P. 56.06. The nonmoving party

“must do more than simply show that there is some metaphysical doubt as

to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.

Ct. 1348. The nonmoving party must demonstrate the existence of specific

facts in the record which could lead a rational trier of fact to find in favor of

the nonmoving party. If a summary judgment motion is filed before

adequate time for discovery has been provided, the nonmoving party may

seek a continuance to engage in additional discovery as provided in

Tennessee Rule 56.07. However, after adequate time for discovery has

been provided, summary judgment should be granted if the nonmoving

party’s evidence at the summary judgment stage is insufficient to establish

the existence of a genuine issue of material fact for trial. Tenn. R. Civ. P.

56.04, 56.06. The focus is on the evidence the nonmoving party comes

forward with at the summary judgment stage, not on hypothetical evidence

that theoretically could be adduced, despite the passage of discovery

deadlines, at a future trial.

Rye v. Women’s Care Cntr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn.

2015).

We first address whether the GTLA supersedes the public duty doctrine. In her

appellate brief, Plaintiff asserts that “[t]he GTLA controls tort immunities with respect to

all governmental entities, and the Public Duty Doctrine was either implicitly or

effectively abolished by the enactment of the GTLA.” Elsewhere in her brief, Plaintiff

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argues further that “the application of the Public Duty Doctrine constitutes an

impermissible violation of the separation of powers doctrine because it encroaches on

what can only be described as the plain intent of our legislature when it passed the GTLA

and removed immunities in all instances except those specifically defined in the act . . . .”

As Plaintiff acknowledges, however, this question does not cover new ground.

The fate of the public duty doctrine post enactment of the GTLA was addressed nearly 25

years ago by our Supreme Court in Ezell v. Cockrell, 902 S.W.2d 394 (Tenn. 1995).

Holding that the public duty doctrine lives on, our Supreme Court stated in pertinent part:

The public duty doctrine originated at common-law and shields a

public employee from suits for injuries that are caused by the public

employee’s breach of a duty owed to the public at large. Kelly M. Tullier,

Governmental Liability for Negligent Failure to Detain Drunk Drivers, 77

Cornell L.Rev. 873, 886 (1992). The doctrine can be traced to the United

States Supreme Court’s decision in South v. Maryland, 59 U.S. (18 How.)

396, 15 L.Ed. 433 (1855), which held that a sheriff is not liable for failing

to protect a kidnap victim because the sheriff’s duty to keep the peace was

“a public duty, for neglect of which he is amenable to the public, and

punishable by indictment only.” Id. at 403.

***

Although, as the plaintiff points out, the Legislature has waived

immunity in the Act for some activities that were protected at common law

by the public duty doctrine, many of the governmental activities

traditionally shielded by the public duty doctrine are expressly excepted

from the limited waiver of immunity for negligent acts or omissions of

governmental employees, under which the plaintiff brought this lawsuit.

See Tenn. Code Ann. § 29-20-205(1) (exercise or performance of a

discretionary function); –205(3) (issuance of licenses); –205(4) (failure to

inspect); –205(7) (civil unrest); and –205(8) (tax collection). Accordingly,

we are not persuaded that the Tennessee Governmental Tort Liability Act,

which actually reiterates and extends the rule of governmental immunity,

abolished, or was intended to abolish, the longstanding common-law public

duty doctrine.

Moreover, we are in agreement with the courts which have identified

valid policy considerations which warrant continued judicial application of

the public duty doctrine. We conclude that the doctrine serves the

important purpose of preventing excessive court intervention into the

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governmental process by protecting the exercise of law enforcement

discretion. As we observed in State v. Jefferson, 529 S.W.2d 674, 689

(Tenn. 1975), “[i]t is essential to the protection of society that a wide

discretion be vested in officers chosen to enforce our laws....” See also,

Barratt v. Burlingham, 492 A.2d at 1222; Ashburn v. Anne Arundel County,

510 A.2d at 1084; Fessler by Fessler v. R.E.J., Inc., 514 N.E.2d at 522; see

generally, 38 A.L.R.4th at § 3, 1197-1202. Finally, public forms of redress,

other than civil actions, exist in Tennessee, as in most other states, to insure

that officers who fail to faithfully perform their duties are accountable.

Internal disciplinary policies, criminal sanctions, and in the case of publicly

elected law enforcement officials, ouster proceedings, are alternative forms

of redress. See Tenn. Code Ann. § 38-8-301 to § 38-8-309 (1991); Tenn.

Code Ann. § 39-16-401 to § 39-16-406 (1991); Tenn. Code Ann. § 8-47-

101 to § 8-47-126 (1993). We think that on balance, the State is better

served by a policy that both protects the exercise of law enforcement

discretion and provides accountability for failure to perform a duty.

Ezell, 902 S.W.2d at 397, 400-01 (footnotes omitted).

Plaintiff argues that Ezell was decided wrongly. However, even if that is so, there

is nothing this Court can do about it. We are an intermediate appellate court, and the

Tennessee Supreme Court has the final word on Tennessee law. On the matter of our

duty to abide higher court precedents, we have stated thusly:

Even more importantly, intermediate courts are not free to depart from the

Tennessee Supreme Court’s unequivocal holdings. “The Court of Appeals

has no authority to overrule or modify Supreme Court’s opinions.”

Bloodworth v. Stuart, 221 Tenn. 567, 572, 428 S.W.2d 786, 789 (Tenn.

1968) (citing City of Memphis v. Overton, 54 Tenn.App., 419, 392 S.W.2d

86 (Tenn. 1964) ); Barger v. Brock, 535 S.W.2d 337, 341 (Tenn. 1976). As

such, “[o]nce the Tennessee Supreme Court has addressed an issue, its

decision regarding that issue is binding on the lower courts.” Morris v.

Grusin, No. W2009-00033-COA-R3-CV, 2009 WL 4931324, at *4 (Tenn.

Ct. App. Dec. 22, 2009) (quoting Davis v. Davis, No. M2003-02312-COA-

R3-CV, 2004 WL 2296507, at *6 (Tenn. Ct. App. Oct. 12, 2004) ); see also

Thompson v. State, 958 S.W.2d 156, 173 (Tenn. Crim. App. 1997) (“[I]t is

a controlling principle that inferior courts must abide the orders, decrees

and precedents of higher courts. The slightest deviation from this rigid rule

would disrupt and destroy the sanctity of the judicial process.”) (quoting

State v. Irick, 906 S.W.2d 440, 443 (Tenn. 1995) ); Levitan v. Banniza, 34

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Tenn. App. 176, 185, 236 S.W.2d 90, 95 (Tenn. Ct. App. 1950) (“This

court is bound by the decisions of the Supreme Court.”).

O’Dneal v. Baptist Memorial Hospital-Tipton, 556 S.W.3d 759, 772-73 (Tenn. Ct. App.

Feb. 6, 2018).

We are not at liberty to depart from binding Supreme Court precedent. If the

public duty doctrine’s existence post enactment of the GTLA is to be judicially revisited,

it must be done by our Supreme Court, not us.

Plaintiff goes further still to argue what we can only interpret to mean that the

Supreme Court’s decision in Ezell itself was unconstitutional for its alleged usurpation of

the legislative power. Again, our courts have a hierarchical structure. Just as we may not

depart from binding Supreme Court precedent, we likewise have no authority or power to

declare an opinion of our Supreme Court unconstitutional.

Having determined that the public duty doctrine still exists, we next address

Plaintiff’s alternative issue of whether the Trial Court erred in finding that the public duty

doctrine applies in the instant case. According to Plaintiff, even if the public duty

doctrine survives, it does not apply in this case because Defendant was on notice of the

dog’s propensities and should have foreseen an incident occurring such as what happened

to her. Plaintiff states “[i]f this doctrine were interpreted as requiring the actual plaintiff,

by name, to be known to the public official as a condition precedent to the imposition of

liability, there would be virtually no GTLA case that could ever survive a summary

judgment proceeding, because . . . all government employees, by definition, act for the

public at large in the constituency through which they serve.”

Respectfully, Plaintiff’s concerns about the public duty doctrine rendering the

GTLA hollow are somewhat unfounded. Plaintiff is correct that under Ezell a

percentage, perhaps even a significant percentage, of cases brought against governmental

entities that would survive under the GTLA will be dismissed under the public duty

doctrine. Not every case involving a public employee or governmental entity necessarily

is predicated on the existence of a duty to the public at large. The entire basis of

Plaintiff’s claim rests on Defendant having had a duty to protect citizens from dangerous

animals. Under Plaintiff’s theory, the animal control officials were bound to act because

of their public duty and not because they owned the dog in question or somehow had a

personal responsibility to keep it confined. Our Supreme Court has discussed application

of the public duty doctrine in the context of the GTLA as follows:

Both the GTLA and the public duty doctrine are affirmative

defenses. Courts first look to the GTLA. If immunity is found under the

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GTLA, a court need not inquire as to whether the public duty doctrine also

provides immunity. If, however, the GTLA does not provide immunity,

courts may look to the general rule of immunity under the public duty

doctrine. If immunity is then found under the public duty doctrine, the next

inquiry is whether the special duty exception removes the immunity

afforded under the public duty doctrine.

Chase v. City of Memphis, 971 S.W.2d 380, 385 (Tenn. 1998).

Although it is undisputed that the GTLA provides no immunity to Defendant here,

Defendant asserted the public duty doctrine as a defense. The doctrine protects

governmental entities like Defendant as well as public employees. See Ramsey v. Cocke

County, No. E2016-02145-COA-R3-CV, 2017 WL 2713213, at *7 (Tenn. Ct. App. June

23, 2017), Rule 11 appl. perm. appeal denied Nov. 17, 2017. As the alleged tortious

failure to act in this case necessarily constitutes a failure to observe a duty to the public at

large for the reasons discussed above, we find the public duty doctrine applies.

The final stage of the analysis is to determine whether a special duty exception

exists to negate the public duty doctrine. Ezell formulated three categories of special

duty exception:

1) officials, by their actions, affirmatively undertake to protect the plaintiff,

and the plaintiff relies upon the undertaking; 2) a statute specifically

provides for a cause of action against an official or municipality for injuries

resulting to a particular class of individuals, of which the plaintiff is a

member, from failure to enforce certain laws; or 3) the plaintiff alleges a

cause of action involving intent, malice, or reckless misconduct.

Ezell, 902 S.W.2d at 402.

Plaintiff, however, makes no effort to establish how her case fits into one of the

three types of special duty exception to the public duty doctrine. While Plaintiff alleged

in her complaint that Defendant’s conduct was reckless, which would fit into category 3),

she abandoned that position on appeal and argues only that if the public duty doctrine still

exists at all it should not apply here because she was a foreseeable plaintiff.

Foreseeability, while a factor in every negligence case, is not one of the valid special duty

exceptions. We will not attempt to find a special duty exception where none has been

argued. “It is not the responsibility of Tennessee’s appellate courts to research or

construct the parties’ arguments for them.” State v. Hester, 324 S.W.3d 1, 80 (Tenn.

2010).

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The attack on Plaintiff was truly unfortunate and serious. Nevertheless, our

Supreme Court in Ezell made clear that governmental entities may assert the public duty

doctrine in those instances where their employee’s conduct involves a duty to the public

at large. Plaintiff has staked her appeal on our somehow departing from Ezell. Only our

Supreme Court can do that. Defendant made a properly supported motion for summary

judgment relying upon the public duty doctrine and is entitled to judgment as a matter of

law. We affirm the judgment of the Trial Court.

Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the

Trial Court for collection of the costs below. The costs on appeal are assessed against the

Appellant, Janet C. Fleming, and her surety, if any.

____________________________________

D. MICHAEL SWINEY, CHIEF JUDGE

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