Curtis Pierce v. State of Tennessee

06/25/2021

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

February 4, 2021 Session

CURTIS PIERCE ET AL. v. STATE OF TENNESSEE

Appeal from the Tennessee Claims Commission

No. T20192785-1 James A. Halton, Commissioner

___________________________________

No. M2020-00533-COA-R3-CV

___________________________________

This is a negligence case that was dismissed in the Tennessee Claims Commission for

several articulated reasons, including that Tennessee’s recreational use statute barred the

plaintiffs’ claims. For the specific reasons stated herein, we affirm the decision of the

Claims Commission.

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

Affirmed

ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which D. MICHAEL SWINEY,

C.J., and JOHN W. MCCLARTY, J., joined.

Christopher Smith and David Randolph Smith, Nashville, Tennessee, for the appellants,

Curtis Pierce and Hannah Pierce.

Herbert H. Slattery, III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor

General; and Heather C. Ross, Senior Assistant Attorney General, for the appellee, State

of Tennessee.

OPINION

BACKGROUND AND PROCEDURAL HISTORY1

This case stems from a tragic accident at Cummins Falls State Park (“the Park”) on

June 9, 2019, when Steven Pierce, the two-year-old son of Curtis and Hannah Pierce,

1

Because the case was resolved at the motion to dismiss stage, the factual allegations of the

complaint must be accepted as true. See Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696

(Tenn. 2002) (“In reviewing a motion to dismiss, the appellate court must construe the complaint liberally,

presuming all factual allegations to be true and giving the plaintiff the benefit of all reasonable inferences.”).

drowned after a flash flood at the Park. Following the death of Steven, his parents (“the

Pierces”) sought to hold the State of Tennessee (“the State”) liable and, in alleging

negligent and grossly negligent behavior, contended that the State had breached a duty to

make the Park safe for visitors. The operative complaint against the State, filed in the

Claims Commission, averred that the State owned the Park and that its immunity had been

waived against the asserted claims in the complaint pursuant to Tennessee Code Annotated

section 9-8-307(a)(1)(C) and section 9-8-307(a)(1)(E). As part of their allegations, the

Pierces also averred that certain assumed duties had been breached by the State.

According to the complaint, the Pierces traveled with their son to the Park on the

date of the underlying incident from their home in Eddyville, Kentucky. They had never

been to the Park before and were accompanied by Mr. Pierce’s brother and a family friend.

The Park had been closed the previous two days because of rain, and rain was also in the

weather forecast on the date of the Pierces’ trip to the Park. Sometime between noon and

12:30 p.m., the National Weather Service called officials at the Park and advised that rain

was coming to the area.

The Pierce family arrived at the Park around 2:00 p.m., and upon their arrival, Park

Rangers instructed the family to “be safe” and “get out of the water if you hear the whistle

blow.” Later, sometime between 3:00 and 3:30 p.m., Mr. Pierce arrived at the falls area

with Steven. The weather was clear at that time.

The State provides life jackets adjacent to the swimming hole area, not at the “Trail

Waypoint,” where the “Falls Route,” a .5 mile route that proceeds along the water’s edge,

begins. Mr. Pierce placed a State-provided life jacket on his son, but he returned it to the

life jacket station adjacent to the falls as required before beginning to make his way out of

the Park at approximately 5:00 p.m.

As Mr. Pierce began his return back along the Falls Route with his son in his arms,

Park Rangers suddenly blew their whistles. Floodwaters had begun to pour over the falls.

Park Rangers told guests to get out of the water and to go back towards the Trail Waypoint.

Subsequently, Park Rangers changed their instructions, telling guests to instead seek high

ground. The Pierces’ family friend, who was behind Mr. Pierce and his son, called to Mr.

Pierce to try to convey the new instructions from the Rangers, but when he turned to Mr.

Pierce, he saw him trying in vain to grab on to rocks and then saw the floodwaters sweep

Mr. Pierce and his son around the bend. Tragically, Steven Pierce was ultimately swept

from his father’s arms and drowned.

As detailed in the complaint, another deadly flash flood incident had previously

occurred at the Park in 2017. During that event, one woman drowned after being swept

away in a flash flood, and another died during the search for the woman who was swept

away. As with the 2019 incident at issue, the weather was clear at the time the flash

flooding began in 2017. Although the Park announced plans to install water gauges

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following the 2017 event in order to better monitor rising water levels upstream, these plans

were not implemented before the death of the Pierces’ son.

After the Pierces filed their complaint, the State moved to dismiss it on the ground

that it was barred by Tennessee’s recreational use statute, Tenn. Code Ann. § 70-7-101 et

seq. Under the recreational use statute, a “landowner, lessee, occupant, or any person in

control of land or premises,” subject to certain exceptions, “owes no duty of care to keep

such land or premises safe for entry or use by others for . . . [certain][2] recreational

activities.” Tenn. Code Ann. § 70-7-102. In the same vein, absent a delineated exception,

the landowner is not 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 [recreational purposes.]” Id. The State further asserted that the Pierces’

action fell outside of Tennessee Code Annotated section 9-8-307(a)(1)(E), which, as noted

earlier, was one of the statutory provisions relied upon by the Pierces for a waiver of the

State’s sovereign immunity.

The Claims Commission subsequently entered an order dismissing the Pierces’

complaint. A review of the order reflects that the Claims Commission considered all

asserted claims to be barred by the recreational use statute. As to the Pierces’ pursuit of

relief under Tennessee Code Annotated section 9-8-307(a)(1)(E), the Claims Commission

also specifically concluded that the Pierces were “not the types of persons covered by the

statute.” Moreover, as to the Pierces’ attempt to recover for breach of assumed duties

pursuant to the principles codified at Tennessee Code Annotated section 9-8-307(c), the

Claims Commission separately held that such a theory was not tenable on sovereign

immunity grounds. This appeal followed.

STANDARD OF REVIEW

At issue in this appeal is the Claims Commission’s dismissal of the Pierces’

complaint. “We review a trial court’s resolution of a motion to dismiss de novo with no

presumption of correctness.” Woodruff by and through Cockrell v. Walker, 542 S.W.3d

486, 493 (Tenn. Ct. App. 2017). Part of our discussion on appeal involves questions of

statutory interpretation. The construction of a statute is also a question of law which is

reviewed de novo without a presumption of correctness. Myers v. AMISUB (SFH), Inc.,

382 S.W.3d 300, 308 (Tenn. 2012). Statutory construction starts with an examination of

the statute’s language, and when the import of a statute is unambiguous, we discern

legislative intent from the natural and ordinary meaning of the language employed. Id.

When a statute is ambiguous, however, courts may reference “the broader statutory

scheme, the history of the legislation, or other sources.” Lind v. Beaman Dodge, Inc., 356

S.W.3d 889, 895 (Tenn. 2011). Also at issue is the jurisdiction of the Claims Commission,

2

As discussed later, although there are specific types of recreational activities listed in the statute,

the list is not an all-inclusive one.

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another question of law that we review de novo with no presumption of correctness.

Mullins v. State, 320 S.W.3d 273, 278 (Tenn. 2010).

DISCUSSION

Preliminary Discussion and Overview of Concepts and Legal Claims at Issue

This appeal involves the consideration of two separate legal concepts of immunity.

The first concept—that of sovereign immunity—is triggered for our consideration due to

the fact that the State is the defendant in this action. The second legal concept at issue

relates to the application of Tennessee’s recreational use statute, a statute which our

Supreme Court has noted “provides the State with limited immunity for injuries occurring

on state-owned property during recreational use.” Parent v. State, 991 S.W.2d 240, 242

(Tenn. 1999).3

The doctrine of sovereign immunity has been a part of the common law of Tennessee

for well over a century and derives from feudal notions of the divine right of kings. Hawks

v. City of Westmoreland, 960 S.W.2d 10, 14 (Tenn. 1997). The doctrine provides that a

lawsuit may not be brought against a governmental entity unless that entity has consented

to be sued. Id. Our own State Constitution reflects the doctrine. Northland Ins. Co. v.

State, 33 S.W.3d 727, 729 (Tenn. 2000). Article 1, section 17 of the Tennessee

Constitution states that “[s]uits may be brought against the State in such manner and in

such courts as the Legislature may by law direct.” As is relevant here, we observe that the

Legislature has “waived [the State’s] sovereign immunity as to certain actions brought

before the Tennessee Claims Commission.” Brown v. State, 333 S.W.3d 102, 104 (Tenn.

Ct. App. 2010) (quoting Morton v. State, No. M2008-02305-COA-R3-CV, 2009 WL

3295202, at *2 (Tenn. Ct. App. Oct. 13, 2009)).

The specific categories of claims for which suits against the State are authorized are

listed in Tennessee Code Annotated section 9-8-307. See Tenn. Code Ann. § 9-8-307(a)(1)

(providing that the “commission or each commissioner sitting individually has exclusive

jurisdiction to determine all monetary claims against the state based on the acts or

omissions of ‘state employees,’ as defined in § 8-42-101, falling within one (1) or more of

the following categories”). At issue here are the categories listed in Tennessee Code

Annotated section 9-8-307(a)(1)(C) and Tennessee Code Annotated section 9-8-

307(a)(1)(E):

(C) Negligently created or maintained dangerous conditions on state

controlled real property. The claimant under this subdivision (a)(1)(C) must

establish the foreseeability of the risks and notice given to the proper state

3

As explained later in this Opinion, however, the recreational use statute is by no means limited to

the State in its application.

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

appropriate measures;

....

(E) Negligent care, custody and control of persons;

Tenn. Code Ann. § 9-8-307(a)(1). As noted earlier in this Opinion, the Pierces pled both

of these categories in their complaint, while also specifically asserting that the State had

breached assumed duties to guard and warn against dangerous conditions at the Park. As

support for their pursuit of relief based on alleged assumed duties by the State, the Pierces

referred to Tennessee Code Annotated section 9-8-307(c), which provides that the State’s

liability “shall be based on the traditional tort concepts of duty.” Tenn. Code Ann. § 9-8-

307(c).

A review of this complaint reveals that the Pierces are complaining about the State’s

failure to keep the Park safe for recreational users, including the State’s failure to give

proper warnings of impending floodwaters. In light of these allegations, their decision to

invoke Tennessee Code Annotated section 9-8-307(a)(1)(C) is analytically sound. Indeed,

although the State is by no means an insurer of the safety of those who enter upon its land,

Byrd v. State, 905 S.W.2d 195, 197 (Tenn. Ct. App. 1995), concerns of sovereign immunity

pose no impediment to the Pierces’ efforts to raise the allegations that they do. The

Supreme Court has observed that Tennessee Code Annotated section 9-8-307(a)(1)(C)

codifies a right against the State as landowner, Parent, 991 S.W.2d at 242, and this Court

has previously opined that the provision “removes the state’s immunity to the same extent

as the obligation of a private owner or occupier of land” and “merely codifies the common

law obligation of the owner or occupier of land.” Sanders v. State, 783 S.W.2d 948, 951

(Tenn. Ct. App. 1989). Of course, as discussed in detail infra, although sovereign

immunity may not pose a specific concern to the Pierces’ theory of recovery, the immunity

afforded to the State under the recreational use statute does.

As for the Pierces’ invocation of Tennessee Code Annotated section 9-8-

307(a)(1)(E) and their assertion that the State “was negligent in its custody, care, or control

of persons” by, among other things, “opening the park on June 9, 2019,” we note again that

the Claims Commission held that the Pierces were “not the types of persons covered by the

statute.” As will be discussed more precisely below, we agree with the Claims Commission

that the Pierces’ son was not in the State’s “care,” “custody,” or “control” merely as a result

of his being a visitor to the Park.

In Learue by Learue v. State, a teenage boy sustained injuries in a roped-off area of

a lake at Chickasaw State Park, and when a claim for the boy’s injuries came to be

considered by the Claims Commission, the Commissioner determined that jurisdiction

existed to consider the claim under the very categories relied upon by the Pierces herein.

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Learue by Learue v. State, 757 S.W.2d 3, 5 (Tenn. Ct. App. 1987). On appeal, we

expressed no reservations about the Commissioner’s conclusion regarding the

“Negligently created or maintained dangerous conditions on state controlled real property”

category, which is currently codified at Tennessee Code Annotated section 9-8-

307(a)(1)(C), but we stated that a fair reading of the “Negligent care, custody and control

of persons” category establishes that “the legislature intended that [it] was to pertain to

persons confined to penal institutions, residences, or health and other similar facilities

maintained by the state.” Id.

Since Learue, our Supreme Court has indicated that the “care, custody and control”

language in Tennessee Code Annotated section 9-8-307(a)(1)(E) should be read in the

disjunctive, and thus, the State could face liability under this provision for negligent

“control” of a person, even if the person was not in the State’s “care” or “custody.” Stewart

v. State, 33 S.W.3d 785, 792 (Tenn. 2000). Properly understood, therefore, the provision

“is not limited to persons confined in institutions maintained by the State.” Byrd v. State,

150 S.W.3d 414, 419-20 (Tenn. Ct. App. 2004). In any event, according to another

Supreme Court opinion issued nearly ten years after the Stewart decision, there is some

overlap between these independent concepts of “care,” “custody,” and “control.” See

Mullins, 320 S.W.3d at 280 (observing how the concept of “custody” was intertwined with

the other concepts). As far as the concept of “control” is concerned, past case law has

spoken to a concern for whether the claimant was “under the immediate physical ‘control’

of the state,” Kaiser v. State, No. 01-A-019110BC00359, 1992 WL 141014, at *3 (Tenn.

Ct. App. June 24, 1992) (emphasis added),4 and when referencing the concept of “custody”

under Tennessee Code Annotated section 9-8-307(a)(1)(E), the Supreme Court noted, as

we just alluded to, that the definition of “custody” elsewhere in the Code embraces both

the concepts of “care” and “control.” See Mullins, 320 S.W.3d at 280 (emphases added)

(quoting Tenn. Code Ann. § 37-1-102(b)(8) (2005 & Supp. 2009)) (“Our legislature has

defined ‘custody’ as meaning ‘the control of actual physical care of the child and includes

the right and responsibility to provide for the physical, mental, moral and emotional well-

being of the child.’”).

Setting aside any questions as to whether the recreational use statute might bar what

are in effect premises liability claims of persons that are otherwise somehow properly

understood to be in the State’s “care,” “custody,” or “control,”5 we agree with the Claims

Commission here that, based on the factual allegations in the complaint, jurisdiction did

not exist under Tennessee Code Annotated section 9-8-307(a)(1)(E). As the complaint

plainly establishes, the Pierces came to the Park as visitors on a family trip, just as the

claimant in Learue was simply a visitor/swimmer at a State park. Although without

4

Moreover, in another decision, we referenced how cases interpreting Tennessee Code Annotated

section 9-8-307(a)(1)(E) involved “an alleged duty by a state official to exert physical control of a person.”

Byrd, 150 S.W.3d at 420.

5

The Claims Commission separately held in its discussion of this issue that the “Recreational Use

Statute precludes liability.”

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question the precise contours of Tennessee Code Annotated section 9-8-307(a)(1)(E) are

not as limited as suggested by this Court’s discussion in Learue,6 the same end result

obtains in our present analysis. Specifically, we fail to see how the Pierces’ son, as a mere

Park visitor, was in the “care” of the State, in its “custody,” or under its “control”7 within

the meaning of Tennessee Code Annotated section 9-8-307(a)(1)(E).

Is the Pierces’ Action Alleging Negligence by the State Regarding Park Safety and Failure

to Properly Warn of Dangerous Conditions Barred by Tennessee’s Recreational Use

Statute?

In light of the above discussion, we now shift our attention to whether the Pierces’

asserted theory of negligence implicating Tennessee Code Annotated section 9-8-

307(a)(1)(C) should have been allowed to proceed in the Claims Commission. As noted

earlier, the Claims Commission held that the State was immune pursuant to the recreational

use statute. This holding remains the primary point of contention in this appeal.

As we briefly addressed earlier in this Opinion, the Pierces’ attempt to hold the State

liable for its alleged negligence as a landowner is not a sovereign immunity concern in

light of statutory authority in the Claims Commission Act. See Tenn. Code Ann. § 9-8-

307(a)(1)(C) (indicating the Claims Commission has jurisdiction for “Negligently created

or maintained dangerous conditions on state controlled real property”). Nevertheless, the

State’s potential liability under Tennessee Code Annotated section 9-8-307(a)(1)(C) is

“subject to statutory immunity in certain cases.” Parent, 991 S.W.2d at 242. As is

specifically relevant here, Tennessee’s recreational use statute generally provides that,

subject to certain exceptions, landowners owe “no duty of care to keep such land or

premises safe for entry or use by others for . . . recreational activities” and are not 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 [recreational purposes.]”

Tenn. Code Ann. § 70-7-102. Thus, what Tennessee Code Annotated section 9-8-

307(a)(1)(C) does to remove immunity from the State, the recreational use statute taketh

away.

6

Again, the provision “is not limited to persons confined in institutions maintained by the State.”

Byrd, 150 S.W.3d at 419-20.

7

The Pierces’ complaint, at the end of their denominated “Negligent Custody, Care, or Control of

Persons” count, also contains a conclusory assertion, without further explanation, that the State “assum[ed]

a duty of care, custody, and control over park visitors.” The complaint does, however, in the denominated

“Breach of an Assumed Duty” count, speak to various breaches of assumed duties of care. The essence of

what the Pierces are challenging regarding the State’s alleged assumption of duties of care relates to the

State’s alleged negligence in protecting their son from dangerous floodwaters on the property. This alleged

negligence is thus coterminous with negligent behavior that is otherwise immunized under Tennessee’s

recreational use statute. As discussed at length later in this Opinion, we conclude that the Pierces’

allegations pertaining to asserted assumed duties of care do not take this case outside the ambit of the

recreational use statute.

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Tennessee’s recreational use statute was originally enacted in 1963 and is part of a

trend by state legislatures that began in the mid-20th century to limit property owners’

liability when persons used the owners’ property for recreational purposes. Morgan v.

State, No. M2002-02496-COA-R3-CV, 2004 WL 170352, at *4 (Tenn. Ct. App. Jan. 27,

2004). Affected property owners under Tennessee’s current iteration of the statute include

governmental entities. Tenn. Code Ann. § 70-7-101. More precisely, Tennessee’s statute

legislates on the duties owed by “landowners.” A “landowner,” which “includes any

governmental entity,” means “the legal title holder or owner of such land or premises, or

the person entitled to immediate possession of the land or premises, and includes any

lessee, occupant or any other person in control of the land or premises.” Id.8 The concepts

of “land” and “premises” also have defined meanings within the statute. Specifically,

“unless the context otherwise requires,” the statute instructs that:

(1)(A) “Land” or “premises” means and includes all real property, waters,

private ways, trees and any building or structure that might be located on real

property, waters and private ways;

(B) “Land” or “premises” includes real property, waters, private ways, trees

and any building or structure located on the land or premises, owned by any

governmental entity, including, but not limited to, the Tennessee valley

authority; and

(C) “Land” or “premises” does not include the landowner’s principal place

of residence and any improvements erected for recreational purposes that

immediately surround such residence, including, but not limited to,

swimming pools, tennis or badminton courts, barbecue or horse shoe pits,

jacuzzis, hot tubs or saunas;

Id.

In addition to the general removal of a duty of care to keep land safe for recreational

users and to warn of hazardous conditions, a no-duty rule which Tennessee Code

Annotated section 70-7-102 establishes, another provision in the recreational use statute

makes clear that when a landowner gives permission to another to engage in certain

recreational activities, the landowner “does not by giving such permission” “[c]onstitute

the person to whom permission has been granted to legal status of an invitee to whom a

duty of care is owed.” Tenn. Code Ann. § 70-7-103(2).

In Parent, our Supreme Court instructed that a recreational use defense “requires a

two-pronged analysis,” noting that the necessary inquiries are:

8

Notwithstanding the broad nature of the term “landowner” under the statute and its inclusion of

“any lessee, occupant or any other person in control of the land or premises,” Tenn. Code Ann. § 70-7-101,

Tennessee Code Annotated section 70-7-102 provides that 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 . . . recreational activities.” Tenn. Code Ann. § 70-7-102(a).

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(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. If Tenn. Code Ann. § 70-7-102 is

applicable and no exceptions apply, the State is immune. If Tenn. Code Ann.

§ 70-7-102 is applicable but an exception is also applicable, the State may be

subject to liability. The State’s liability, however, is still governed by and

subject to the claims commission statute.

Parent, 991 S.W.2d at 243. Subsequent to the Parent decision, then-Judge Koch authored

an opinion for this Court expressing his view that a “three-step analysis” is required.

Morgan, 2004 WL 170352, at *5. In articulating the relevant considerations, he wrote as

follows:

First, the court must determine whether the party asserting the Tenn. Code

Ann. § 70-7-102 defense is a landowner. Second, the court must determine

whether the activity in which the injured party was engaged at the time of the

injury is a recreational activity. Third, the court must determine whether any

of the exceptions in Tenn. Code Ann. § 70-7-104 are applicable to the case.

Id. No doubt, the first step identified by then-Judge Koch in Morgan is fairly implied as a

necessary consideration from Parent, even though not formally a part of Parent’s outlined

“two-pronged analysis.” Parent, 991 S.W.2d at 243. In other words, Parent’s two-pronged

inquiry appears to presuppose that a statutory “landowner” has asserted a recreational use

defense, and the two-pronged analysis is what is used to determine whether that landowner

is immune.

Although this Court has noted that the language in the recreational use statute

“indicates that it applied the moment a visitor enters the property for a recreational purpose,

even if the visitor has not yet begun the recreational activity,” Mathews v. State, No.

W2005-01042-COA-R3-CV, 2005 WL 3479318, at *4 (Tenn. Ct. App. Dec. 19, 2005),

this is not to say that a party’s participation in, or plans to engage in, recreational activity

absolves a landowner from all potential legal liability. The tests from Morgan and Parent

may not even apply. “The Tennessee Recreational Use Act primarily addresses a

landowner’s duty to keep the land or premises safe or to warn of danger, hazardous

conditions or activities on the land.” Wilkerson v. Altizer, 845 S.W.2d 744, 750 (Tenn. Ct.

App. 1992). Indeed, as the Sixth Circuit recently opined in reference to our statute,

“Parent’s context indicates that its test applies only to causes of action arising from duties

to maintain safe land or warn against hazardous conditions.” Huls v. Davis, 835 F. App’x

845, 851 (6th Cir. Nov. 20, 2020).

Here, of course, the Parent and Morgan considerations are in play given the nature

of what the Pierces have alleged in their pursuit of damages against the State pursuant to

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Tennessee Code Annotated section 9-8-307(a)(1)(C). Do these considerations establish

that the State is immune, or do they establish the Pierces’ right to pursue recovery under

the Claims Commission Act? Those are the ultimate questions before us in this appeal,

and in addressing them, we initially take note of the following two facts: (1) this case came

to us for review following the Claims Commission’s adjudication of the State’s motion to

dismiss and (2) the recreational use statute is, as Parent indicates, an affirmative defense.

Parent, 991 S.W.2d at 242. In order for an affirmative defense such as the recreational use

statute to be successfully asserted on a motion to dismiss,

the applicability of the defense must “clearly and unequivocally appear[ ] on

the face of the complaint.” Givens v. Mullikin ex rel. Estate of

McElwaney, 75 S.W.3d 383, 404 (Tenn. 2002) (quoting Anthony v.

Tidwell, 560 S.W.2d 908, 909 (Tenn. 1977)). In other words, the plaintiff’s

own allegations in the complaint must show that

an affirmative defense exists and that this defense legally defeats the claim

for relief. See Ragsdale v. Hill, 37 Tenn.App. 671, 681, 269 S.W.2d 911, 916

(1954) (holding that a demurrer asserting res judicata was improper when the

petition being challenged did not mention the prior decree); see also 5B

Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §

1357, at 713–14 (3d ed. 2004).

Jackson v. Smith, 387 S.W.3d 486, 492 (Tenn. 2012) (internal footnote omitted).

A review of the complaint in this matter reveals that the State’s recreational use

defense has merit. First, the State is clearly a statutory “landowner,” as the complaint avers

that the State owns the property at issue in this litigation. Second, according to the factual

allegations that appear, the Pierces’ son was engaging in recreational activity. Shortly

before the tragic accident that occurred, Mr. Pierce and his son had been in the falls area

of the Park and, at the time of the tragedy, were traveling back along a hike route. Although

the list appearing in Tennessee Code Annotated section 70-7-102 is “neither exclusive nor

exhaustive” as to what qualifies as recreational activity, as “activities similar to those

explicitly enumerated . . . may also fall within the purview of the recreational use statute,”

Parent, 991 S.W.2d at 243, section 70-7-102 notably includes “water sports” and “hiking”

as examples of recreational activity. Tenn. Code Ann. § 70-7-102.

The primary dispute, as we perceive it, relates to the last point of inquiry outlined

in both Parent and Morgan, namely whether any exceptions to the recreational use statute

exist. Certainly, a plaintiff is not required to plead the exceptions that can potentially exist

to a landowner’s recreational use immunity. Parent is clear on that proposition given its

recognition that the recreational use defense is an affirmative one. See Parent, 991 S.W.2d

at 242. Of course, as noted above, an affirmative defense can be raised on a motion to

dismiss if the defense clearly appears on the face of the complaint, Jackson, 387 S.W.3d at

491-92, and here, the facts pleaded indicate that the defense is viable and that the Pierces’

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continued pursuit of recovery is therefore barred.

Indeed, although the Pierces rely upon both of the provisions that are currently

included under Tennessee Code Annotated section 70-7-104(a), neither of these purported

exceptions applies based on what the Pierces are alleging. The first exception relied upon

by the Pierces is codified at Tennessee Code Annotated section 70-7-104(a)(1) and

provides that the recreational use statute does not limit 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.” Tenn. Code Ann. § 70-7-

104(a)(1). This exception has been the subject of frequent litigation in our courts, see, e.g.,

Bishop v. Beckner, 109 S.W.3d 725, 729 (Tenn. Ct. App. 2002), but as is of substantial

importance to the present case, we observe that the General Assembly greatly curtailed the

limits of this exception through legislation in 2009, enacting the provision codified at

Tennessee Code Annotated section 70-7-104(b). Pursuant to that provision, “[the gross

negligence exception] shall not be construed to impose liability or remove the immunity

conferred by § 70-7-102 for failure to guard or warn of a dangerous condition created by

forces of nature.” Tenn. Code Ann. § 70-7-104(b) (emphasis added). The relevance of

this qualification to the facts of the present case should be apparent. The Pierces’ action is

predicated on alleged negligence of the State in failing to guard against and properly warn

of the floodwaters that manifested on the Park property due to prior rainfall. The complaint

does not admit of anything other than that the dangerous condition, i.e., the floodwaters,

was created by forces of nature.9 Thus, per Tennessee Code Annotated section 70-7-

104(b), the first statutory exception is not available to remove the immunity conferred by

section 70-7-102.

In arguing against the notion that application of the 2009 amendment bars the first

statutory exception, the Pierces point to case law where parties have litigated the issue of

whether an injury was caused by an “Act of God.” See, e.g., Butts v. City of S. Fulton, 565

S.W.2d 879, 882 (Tenn. Ct. App. 1977) (discussing when a “misadventure or casualty is

said to be caused by the ‘Act of God’”). Specifically, they submit that the phrase “force of

nature” is interchangeable with “Act of God,” even offering a portion of a quote from

Tennessee Farmers Mutual Insurance Co. v. Hinson, 651 S.W.2d 235 (Tenn. Ct. App.

1983), in their own explanatory parenthetical of that case, which in part related the Hinson

holding as follows: “holding that the trial court erred in instructing the jury on ‘forces of

nature, that is, an act of God.’” The Pierces’ basic argument is that injuries caused by acts

of God are of a character that they cannot be averted with prudence or foresight and that

the present case does not satisfy this standard. Respectfully, the case law relied upon by

the Pierces is inapposite, as it deals with an issue that is not an object of concern in the

9

Beyond the allegations of the complaint, we note that a portion of the Pierces’ appellate brief

appears to concede the point, where the Pierces argue, when specifically discussing the State’s liability

under the Claims Commission Act, that “[it] may be held liable for dangerous conditions . . . even if [it] did

not create those conditions.” (emphasis in original)

- 11 -

statute. Perhaps most importantly, we observe that the inquiry in Tennessee Code

Annotated section 70-7-104(b) is not directed at whether the ultimate injury or casualty

should be considered to be caused by forces of nature.10 Rather, the inquiry to be conducted

is whether the “dangerous condition” to be guarded against and warned of, here the

floodwaters, was “created by forces of nature.” Tenn. Code Ann. § 70-7-104(b). Applying

this plain language in reference to the facts pleaded in the complaint, we are compelled to

hold that the exception codified at Tennessee Code Annotated section 70-7-104(a)(1) is

unavailable. Whether the General Assembly’s 2009 curtailment of this exception was

sound as a matter of policy is, of course, not for this Court to decide. See Knox Cty. Educ.

Ass’n v. Knox Cty. Bd. of Educ., 60 S.W.3d 65, 74 (Tenn. Ct. App. 2001) (noting that it is

“not for the courts to question the wisdom of a legislative act”). We are obligated to take

the statute as we find it. Tenn. Manufactured Hous. Ass’n v. Metro. Gov’t of Nashville,

789 S.W.2d 254, 257 (Tenn. Ct. App. 1990).

The second purported exception relied upon by the Pierces—and the only other one

potentially available under the current version of the statute—is codified at Tennessee

Code Annotated section 70-7-104(a)(2). Pursuant to this particular provision, the

recreational use statute does not limit the liability that otherwise exists for

[i]njury 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)(2). Although we do not find this provision applicable for

the specific reasons that we will discuss infra, its exact parameters are not entirely clear to

us at first glance. The parties are not in agreement as to its contours, and the State itself

has offered multiple potential readings of the provision throughout the course of this

litigation, with varying degrees of conviction, speculation, and points of emphasis. As to

this last concern, we are of the opinion that the State’s arguments are not always clear as

to the specific larger point they intend to advance, even when they are otherwise stated in

direct terms.

Without getting into extensive details regarding the State’s various articulated

arguments evidenced both by the record and appellate briefing, we merely note that, in

10

As it is, the “Act of God” case law cited to by the Pierces does not relate acts of God to unqualified

“forces of nature.” When more fully presented, the quote from Hinson that the Pierces offered reads as

follows: “unusual and extraordinary manifestations of the forces of nature, that is, an act of God.”

Hinson, 651 S.W.2d at 238 (emphasis added).

- 12 -

places, the State has advocated that this provision is essentially a mere reminder that non-

landowners do not in any way have immunity afforded to landowners. In other places, the

State has stated that the provision “provides an immunity exception,” one contingent on

“injury caused by the act of a permittee.” (emphases added) Inasmuch as the only

immunity directly afforded under the statute is in relation to statutory landowners, see

Tenn. Code Ann. § 70-7-102 (noting that the landowner owes no duty); Mathews, 2005

WL 3479318, at *3 (noting that the recreational use statute provides a defense “for a

landowner”), the phrasing of this latter argument necessarily appears to contemplate that

Tennessee Code Annotated section 70-7-104(a)(2) somehow speaks to potential landowner

liability. Additionally, we observe that the State also engaged briefly in the Claims

Commission with the prospect that Tennessee Code Annotated section 70-7-104(a)(2)

“might clarify that other common law liability [of the landowner] is not affected.”

The lack of definitive coherency among the State’s various arguments (and focal

points) and the lack of an agreement among the parties as to the provision’s meaning is not

necessarily a surprise to us. As alluded to earlier, the provision itself appears rather curious

upon initial examination. The language utilized has even prompted one legal commentator

to observe as follows: [Q]uite frankly, [the provision] is confusing to this public school

graduate.” John Day, Recreation Limits Litigation, 45 Tenn. B.J. 35, 42 (May 2009).

There are interesting reasons that could cause one to argue that the provision might perhaps

be responsive to more than one concern, but there is definitely still a good measure of

confusion. Indeed, one court has even gone so far as to state that a “textual reading”

permits one interpretation, while ultimately going on to countenance an entirely different

one. Cagle v. U.S., 937 F.2d 1073, 1077 (6th Cir. 1991).11

The debate over the provision’s precise meaning has been fueled on appeal in part

by the fact that a semicolon used to appear within the provision after the word “granted,”

a fact we have pointed out in a prior footnote. The Pierces take great issue with this in their

appellate brief, arguing as follows:

The statute contained the semicolon until 2005, when the legislature enacted

a sweeping recodification[.] . . . After the recodification, the semicolon

disappeared. But the 2005 recodification, by the express intent of the

legislature, did not change the meaning or interpretation of any statute.

(T.C.A. § 1-1-108, “the commission shall not alter the sense, meaning or

effect of any act of the general assembly.”) Thus, T.C.A. § 70-7-104(a)(2)

should be read as enacted, as though it contained the semicolon.

11

The statute’s presentation was slightly different at the time Cagle was decided. For instance, the

Cagle court interpreted a codified version of the statute that in part read “was granted; to third persons,”

where the current codification reads in part as “was granted, to third persons.” As noted herein, the removal

of the semicolon that used to appear is a point of contention for the Pierces. As a technical matter, we also

observe that the earlier version of the statute reviewed by Cagle had fewer recreational activities specifically

listed.

- 13 -

As for how the Pierces specifically suggest that Tennessee Code Annotated section

70-7-104(a)(2) should be read, they largely pinpoint the language appearing after the

former semicolon and contend that the provision speaks in part to injuries “to persons to

whom . . . the landowner . . . owed a duty to keep the land or premises safe or to warn of

danger.” The larger aim of this specific reading, as will be discussed later in this Opinion,

is to bolster the Pierces’ contention that they may pursue their assumed duty allegations.

Left unsaid by the Pierces is what the balance of the language appearing before the former

semicolon was intended to address. As far as we can tell, they offer no direct explanation

of this matter. We might speculate that they likely believe it to address the same general

concern that the State specifically argued in favor of during the hearing on its motion to

dismiss, that is, that the language serves as a reminder that a recreational permittee, or other

non-landowner, is liable for the damages he or she causes and is not afforded immunity

available to the landowner. Whether this is the Pierces’ actual position, of course, we

cannot conclusively say.12

12

In addition to principally advocating for the proposition that the provision speaks to potential

landowner liability and that such liability is evidently not predicated on the existence of an injury caused

by a recreational permittee, the Pierces’ arguments concerning Tennessee Code Annotated section 70-7-

104(a)(2) are also devoted to addressing the Claims Commission’s articulated reason for finding the

provision inapplicable. For its part, the Claims Commission held the provision does not apply “because

this case does not involve a duty to third persons caused by acts of persons to whom permission was given.”

To narrowly focus on the causation element of this holding for a moment, the holding literally reads that

“this case does not involve a duty . . . caused by acts of persons to whom permission was given.” No doubt,

we suspect the Claims Commission may have intended to state that this case does not involve an injury

caused by acts of persons to whom permission was given to third persons who were owed a duty. This is

certainly the focus of the State’s advocacy in its appellate brief, wherein the State argues that “[c]laimants

do not allege an injury caused by the act of a permittee.” Yet, whereas the Claims Commission’s holding

was somewhat confusing inasmuch as it textually related that there was no “duty” “caused by” acts of

persons, its holding was direct in another sense inasmuch as it placed emphasis on the fact that “this case

does not involve a duty to third persons.” As we perceive it, this language suggests that the Claims

Commission was of the opinion that a recreational permittee such as the Pierces’ son was not potentially

contemplated by this provision. That is, notwithstanding any other questions that might surround the

meaning of the provision, the Claims Commission considered it to only speak to and implicate plaintiffs

who are “third persons.”

As to the conclusion that this provision must necessarily involve “third persons,” that is someone

outside of the group of persons to whom permission was given, we agree with the Pierces’ argument on

appeal that this particular determination by the Claims Commission was in error. The provision does not

simply relate to “third persons.” As evident from the text, the portion of the provision concerning “third

persons” is immediately followed by the words “or to persons to whom the person granting permission, or

the landowner, lessee, occupant, or any other person in control of the land or premises, owed a duty.” Tenn.

Code Ann. § 70-7-104(a)(2). The decision to include this additional language after “third persons” indicates

that “third persons” are not the only focus here. Indeed, we may presume that the General Assembly “used

every word deliberately and that each word has a specific meaning and purpose.” Lee Med., Inc. v. Beecher,

312 S.W.3d 515, 527 (Tenn. 2010). There should be no doubt on this particular point based on the text in

Tennessee Code Annotated section 70-7-104(a)(2), and we observe that another provision in the statutory

scheme points in the same direction. See Tenn. Code Ann. § 70-7-103(3) (contemplating that a landowner

- 14 -

In light of the above arguments, we are presented with a few basic questions. Is this

provision about the landowner’s liability, or is it a mere “reminder” that non-landowners

have no immunity? If about the landowner’s liability, is the exception only somehow

triggered when another permittee or non-landowner plays a role in causing the injury to

which the landowner’s negligence contributed? As alluded to before, although there are

compelling considerations supporting the notion that this provision contemplates some

type of an exception to a landowner’s immunity,13 there has also already been prior judicial

discourse conversely suggesting that the provision must have been intended as a mere

reminder that non-landowners entering the property remain non-immune for the damage

they cause.14 This latter understanding was essentially the argument that the State advanced

can incur liability for an injury to “such person [to whom permission has been granted] or purposely caused

by any act of such person” as provided in Tennessee Code Annotated section 70-7-104).

13

First, we note that the legislative history accompanying the initial passage of this provision

revealed a concern for how a landowner’s liability could be affected. Specifically, when the “to persons”

language in the statute was added after the words “third persons” by way of an amendment (incidentally

the same amendment pursuant to which the disputed, and now removed, semicolon was added), this was

done in response to a concern that the prior language could have affected liability of landowners to guests

and invitees. As stated by a senator when explaining the amendment, “The language in the first section of

the bill was so broad it might have affected liability of landowners to licensees, guests, invitees; and the

language amending the latter part of the bill merely is to clarify it—and the Senator from Hamilton concurs

with me.” To the extent that this concern for “invitees” may appear to run counter to the notion expressed

in Tennessee Code Annotated section 70-7-103(2) (particularly when considered in light of the fact that the

“to persons” language appears to textually relate to people within the permitted group for the reasons stated

in the previous footnote), a potential distinction could be drawn between mere recreational users and those

who are otherwise invitees and later happen to engage in recreational activities. A recent Sixth Circuit case

has opined that our statute does not foreclose such a distinction. See Huls, 835 F. App’x at 850 (stating that

“while the mere grant of permission to use land for a recreational purpose cannot elevate a permittee to

invitee status, a landowner may take other actions that do confer that status”).

The legislative history notwithstanding, similar signals that this provision may deal with landowner

liability are included in the text of the provision itself, which in part deals with the concern of whether a

“landowner . . . . owed a duty.” Tenn. Code Ann. § 70-7-104(a)(2). Why would a landowner’s duties be

relevant in any sense to a subject of liability involving another party, assuming this provision was solely a

reminder or clarification of non-landowners’ lack of immunity? Additionally, another provision in the

statutory scheme, Tennessee Code Annotated section 70-7-103(3), points to Tennessee Code Annotated

section 70-7-104 generally for examples of contemplated liability to the landowner. See Tenn. Code Ann.

§ 70-7-103(3) (noting that a landowner does not by giving permission “[a]ssume responsibility for or incur

liability for any injury to such person or purposely caused by any act of such person to whom permission

has been granted except as provided in § 70-7-104”). Of course, there is also Tennessee Code Annotated

section 70-7-102, which points generally to Tennessee Code Annotated section 70-7-104 for exceptions to

the no-duty rule. See Tenn. Code Ann. § 70-7-102(a) (absolving landowners of a duty “except as provided

in § 70-7-104”).

14

Interestingly, as alluded to before, the Sixth Circuit noted in Cagle that a “textual reading” of our

statute, albeit the version with the former semicolon, permitted an interpretation contemplating potential

landowner liability. Cagle, 937 F.2d at 1077. The Cagle court, however, ultimately disclaimed this textual

reading as one “almost certainly not intended by the drafters of the statute,” and opined that “[a] more

plausible interpretation of this section is that it was drafted to prevent the statute from being used as a shield

by a third-party tortfeasor who, while on the landowner’s property with the landowner’s permission, injures

- 15 -

at the hearing on its motion to dismiss.

For purposes of this appeal, we do not need to definitively rule on the many

questions raised by the provision, as intriguing as they may be. A definitive answer might

be demanded in a future case,15 but in the present appeal, we can adequately resolve the

case accepting either side’s apparent primary reading of the statute. That is because the

facts of the complaint dictate that the provision is unavailable to the Pierces even if the

provision is construed to constitute a true exception to a landowner’s immunity, as would

be necessary for the Pierces to invoke it against the State here.

Indeed, whether the provision is read through the primary lens of the State or under

the interpretation advanced by the Pierces, the State’s immunity under the recreational use

statute is undisturbed. For instance, assuming arguendo that this provision should be

construed in line with what the State appeared to argue at the hearing on its motion to

dismiss and be treated as a mere reminder that non-landowners do not have immunity,16 it

obviously has no bearing here on the Pierces’ efforts to hold the State, a landowner, liable.

If, on the other hand, the provision is construed to speak at least in part to a landowner’s

potential liability, as argued by the Pierces, relief is, as discussed below, similarly

unavailable.

In our view, assuming arguendo that the provision speaks to landowner liability,

there are only two possibilities of interpretation that are in any sense potentially reasonable.

The first reading essentially tracks the “textual reading” of the previously-cited Cagle

decision, which considered the text of the provision, albeit the version with the semicolon,

to permit an interpretation of possible landowner liability for injuries caused by other

recreational users.17 Obviously this exception is not even theoretically available here under

such a reading, as the actions of other recreational users are not at issue. As discussed

someone else on the landowner’s property.” Id. Understanding the provision as a simple reminder that

people entering the land will not have a landowner’s immunity would not be completely anomalous to this

general area of the law, at least as one Louisiana statute much more clearly illustrates. See La. Rev. Stat.

Ann. § 9:2795(D) (“Nothing in this Section shall be construed to relieve any person using the land of

another for recreational purposes from any obligation which he may have in the absence of this Section to

exercise care in his use of such land and in his activities thereon, or from the legal consequences of failure

to employ such care.”). As explained by one Louisiana court, the Louisiana statute was not intended as an

additional exception to an owner’s immunity but was recognition that a third party may still be held liable

for their own negligence. Moore v. Rice-Land Lumber Co., 150 So.3d 657, 661 (La. Ct. App. 2014).

15

Given that one is not demanded here, we also abstain from offering definitive opinions as to

ancillary questions that might emerge under the competing interpretations of the provision.

16

This apparent argument was something in the vein of Cagle’s “more plausible interpretation.” It

appears the Claims Commission might have been of a similar understanding. Although not clearly included

as a specific basis for rejecting the provision where its reasoning appears (which, again, appeared to focus

on whether there is a plaintiff who is a “third person”), the Claims Commission referred to the provision

earlier in its order as pertaining to “third-party liability.”

17

Of course, as we noted, the Cagle court ultimately rejected this textual reading, believing it to be

one “almost certainly not intended by the drafters of the statute.” Cagle, 937 F.2d at 1077.

- 16 -

previously, the complaint indicates that the death of the Pierces’ son was a consequence of

the floodwaters that emerged.18 The death was not an injury “caused by acts of persons to

whom permission . . . was granted.” Tenn. Code Ann. § 70-7-104(a)(2).

The second potential reading treating the provision as dealing with an exception to

a landowner’s immunity is the one advanced by the Pierces, whose interpretation is not

circumscribed by the same constraints the Cagle court gleaned from the provision’s text.

As alluded to before, the Pierces’ reading excises the “caused by” language and advocates

for a potential imposition of landowner liability when there are injuries “to persons to

whom . . . the landowner . . . owed a duty to keep the land or premises safe or to warn of

danger.”19 Even accepting this textual interpretation as controlling, we are of the opinion

that the facts pled in the complaint show that this language is not triggered. Initially, we

highlight the language in the provision discussing persons “to whom . . . the landowner . .

. owed a duty.” Id. Incidentally, this is the very language emphasized by the Pierces in

their brief on appeal. For the reasons discussed below, we do not consider the Pierces’ son

to legally fall within the contemplated class of “persons” “to whom . . . the landowner . . .

owed a duty to keep the land or premises safe or to warn of danger.” Id.20

As we perceive their brief’s developed argument on this point, the Pierces point to

this language as signaling that their assumed duty argument is able to be maintained despite

the bar otherwise posed by the recreational use statute.21 The same argument was even

preemptively advanced in the complaint itself, where the Pierces contended that the

recreational use statute did not provide immunity because the State “undertook and

assumed the duty to guard and warn against the dangerous conditions at Cummins Falls

and negligently breached this duty.” By way of example, in their stylized “Breach of an

Assumed Duty” count, the Pierces specifically alleged that a duty of care had been assumed

18

Although the nature of the injury here forecloses application of this exception under the “caused

by” component of this reading, whether the Pierces’ son was within the contemplated class of persons to

whom the landowner “owed a duty” under the exception is also at issue. This matter will be squarely

addressed herein with respect to the Pierces’ proposed interpretation, as the same point of inquiry will

necessarily be triggered for our consideration.

19

Again, it is not clear to us what specific meaning the Pierces ascribe to the “caused by” language.

As alluded to before, we might speculate that they believe it to address the same general concern that the

State argued in favor of during the hearing on its motion to dismiss. If so, such a position would construe

the language appearing before the former semicolon as a reminder that a recreational permittee is liable for

the damages he or she causes, whereas the language generally appearing after the former semicolon signals

that a landowner can be liable to those persons they otherwise owed a duty, with such liability not contingent

on harm being caused by other recreational users. Whether this dual-reading is the Pierces’ actual position

regarding the entirety of the provision, of course, we cannot definitively say.

20

Of course, as explained in a previous footnote in this Opinion, we do agree with the Pierces that

the language in the provision does not textually speak solely to “third persons.”

21

To the extent they might contend that the language also speaks to their ability to bring a claim

under Tennessee Code Annotated section 9-8-307(a)(1)(E), we need not entertain that question. We have,

for the reasons discussed herein, already held that the Claims Commission was without jurisdiction for such

a claim based on the facts pled in the complaint.

- 17 -

and then breached by the State’s (1) undertaking to implement a stream gauge warning

system and then negligently failing to implement that system, (2) providing life jackets but

failing to provide those life jackets at the Trail Waypoint, and (3) warning guests of

floodwaters but providing negligent instructions.

We do not agree with the Pierces’ argument on this point,22 because as we

understand the statute, the language they rely upon appears to speak to duties otherwise

owed by the landowner as a general proposition. Indeed, as mentioned elsewhere in this

Opinion, when an amendment was made to the recreational use statute incident to its

original enactment, the “to persons” language in what is currently Tennessee Code

Annotated section 70-7-104(a)(2) was apparently added out of a concern for, among other

things, “invitees.”23 We do not interpret the provision as speaking to duties that, while

otherwise not owed, are gratuitously assumed. Moreover, there is certainly no other

language directly relating that voluntarily assuming the duties not owed under Tennessee

Code Annotated section 70-7-102 means one can face liability for behavior that section

102 otherwise immunizes. This, of course, is what the Pierces seek the Claims Commission

to allow in this case, as is evident above. The statute does not permit this interpretation in

our opinion, even under the Pierces’ textual reading. Again, as we construe the specific

language relied upon by the Pierces, it appears to simply contemplate someone who is not

a mere recreational user, i.e., someone to whom the landowner otherwise owes a duty of

care as a general proposition.

Interestingly, our research reveals that the voluntary assumption argument advanced

by the Pierces here is not an entirely novel one, as similar issues have been raised with

other courts addressing the scope of different states’ recreational use statutes. Although

not cited by the Pierces for this particular point,24 Stephens v. United States is an example

of a decision where the voluntary assumption argument was countenanced by a court. In

that case, the plaintiff suffered serious injuries when he dove into a lake,25 and he sued the

22

We are, however, in agreement with another argument offered by the Pierces concerning their

allegations regarding assumed duties to guard and warn against the dangerous conditions at the Park. In

part, the Claims Commission appeared to reason that such allegations could not be maintained due to

concerns of sovereign immunity. Without taxing the length of this Opinion any further, we simply note that

the Claims Commission’s understanding appears to be foreclosed by our Supreme Court’s ruling in Stewart,

which held that jurisdiction could be predicated on assumed duties corresponding to categories under

Tennessee Code Annotated section 9-8-307(a). See Stewart, 33 S.W.3d at 793 (indicating that, under the

Claims Commission Act, jurisdiction could be predicated on assumed duties). Of course, although

sovereign immunity may not bar the Pierces’ theory of recovery, the application of the recreational use

statute does for the reasons stated herein.

23

The facts of the complaint certainly do not indicate that the Pierces otherwise qualified as

invitees, nor do they appear to claim to be.

24

The Pierces’ principal appellate brief references the Stephens decision when discussing the issue

of the State’s alleged gross negligence.

25

The plaintiff concluded he had struck a tree stump when he attempted to execute a shallow dive;

the court noted that there was “no conclusive evidence as to what was struck.” Stephens v. United States,

- 18 -

United States in federal district court pursuant to the Federal Tort Claims Procedure Act.

Stephens v. United States, 472 F. Supp. 998, 1001 (C.D. Ill. 1979). In defense of the

negligence action asserted against it, the United States argued in part that dismissal was

required due to the operation of Illinois’ recreational use act. Id. at 1002. In response to

the government’s position, the plaintiff argued that even if Illinois’ act may have relieved

the owner from any duty of ordinary care to recreational users, the United States had

assumed a duty of care by promulgating safety rules and by making inspections. Id. at

1010.

In addressing the voluntary assumption argument advanced by the plaintiff, the

court in Stephens noted that “[s]ound public policy would support the encouragement of

safety inspections by the owner or occupier without waiver of defenses under the

Recreational Use Act.” Id. After all, the court observed, “[t]he Recreational Use Act was

intended to abrogate certain common-law duties of those covered by the Act.” Id.

Nevertheless, the court considered itself bound by what it called a “stringent rule” from the

Illinois Supreme Court regarding gratuitous undertakings and accepted the plaintiff’s

position as tenable, although it noted that the strength of the referenced Illinois decision

had been questioned by at least one appellate court and that its effect had been limited by

the legislature. Id. at 1010-11. The court also speculated that the Illinois Supreme Court

might place limits on the so-called “stringent rule,” perhaps finding that “the defendant is

not liable absent proof of reliance on its [assumed] inspection measures by the injured

plaintiffs.” Id. at 1011.

Notwithstanding the holding in Stephens, as tempered and qualified as it was, the

voluntary assumption argument does not appear to have otherwise gained much traction in

the courts that have considered it. Indeed, as evidenced by the discussion below, multiple

courts have rejected attempts by plaintiffs to circumvent the bar imposed by recreational

use statutes by alleging assumed duties of care. In Klepper v. City of Milford, for instance,

the plaintiff argued that “since both the United States and Milford undertook to create a

safe environment at the Milford city park and lake shore, they thereby assumed a common-

law duty to do so with reasonable care.” Klepper v. City of Milford, 825 F.2d 1440, 1448

(10th Cir. 1987). In making this argument, the plaintiff relied on section 323 of the

Restatement (Second) of Torts (as the Pierces do here) and section 324A of the Restatement

(Second) of Torts to bolster his assertion that the duties and liability reflected in those

sections negated the exemption from liability afforded by Kansas’ recreational use statute.

Id. The Tenth Circuit rejected the plaintiff’s position, and in doing so, it engaged with the

Stephens decision we have already referenced herein:

Klepper is correct in stating that the common-law doctrine of liability

embodied in sections 323 and 324A has been recognized by Kansas courts

in other contexts. See Ingram v. Howard-Needles-Tammen &

472 F. Supp. 998, 1006-07 (C.D. Ill. 1979)

- 19 -

Bergendoff, 234 Kan. 289, 672 P.2d 1083 (1983); Circle Land & Cattle

Corp. v. Amoco Oil Co., 232 Kan. 482, 657 P.2d 532 (1983); Schmeck v. City

of Shawnee, 232 Kan. 11, 651 P.2d 585 (1982). Furthermore, the doctrine

has been applied, in effect, against the United States in some contexts. See,

e.g., Rayonier, Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d

354 (1957) (despite unique governmental role of public firefighters, forest

service firefighters are not immune from liability under the FTCA if private

individuals would be liable under like circumstances); Indian Towing Co. v.

United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955) (despite unique

government function of operating Coast Guard lighthouse, government is not

immune from liability for its negligent operation of lighthouse). The issue,

however, is whether that doctrine should be recognized in the context of the

RUS, an issue of first impression in Kansas.

In support of his proposition Klepper relies primarily on a decision

from the Illinois district court, Stephens v. United States, 472 F.Supp. 998

(C.D.Ill.1979). True, Stephens held that “by undertaking to promulgate rules

and make inspections, the United States may be liable for negligence even if

the Recreational Use Act was applicable.” Id. at 1012. The judge

in Stephens, however, felt constrained to so hold because of a prior Illinois

decision in Nelson v. Union Wire Rope Corp., 31 Ill.2d 69, 199 N.E.2d 769

(1964), which held an insurance carrier liable under Florida law for negligent

safety inspections on a job site. Curiously, the Stephens judge did not attempt

to differentiate between situations where liability had been limited by statute

(such as under a RUS) and those where common-law third-party liability was

involved, although the Nelson case did not preclude such an

approach. Instead, the Stephens judge felt “bound by the general rule absent

an indication that the State’s highest court is prepared to abandon or modify

it.” Stephens, 472 F.Supp. at 1011.

Here, the district judge did not feel so constrained by any similar

Kansas rulings. We conclude that he was correct not to apply common-law

liability as set out in sections 323 and 324A of the Restatement, given the

fact that the Kansas cases adopting that principle are not interpreting it in

light of a statute limiting liability such as is the case here. See Ingram, 672

P.2d 1083; Circle Land & Cattle Corp., 657 P.2d 532; Schmeck, 651 P.2d

585.

....

In the present case, the district court noted that sound public policy

would encourage safety inspections and warnings by owners of recreational

areas and that liability under the RUS for negligent undertakings could well

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have the effect of discouraging warnings and inspections altogether.

Alternatively, property owners might pull their lands from public use rather

than face the increased risk attaching to their precautionary conduct.

We agree with the district court that there is no compulsion under

Kansas law to extend sections 323 and 324A of the Restatement to the RUS

context. The RUS itself is a statutory modification of the common law of

torts and provides for no liability for simple negligence.

Id. at 1449–50 (internal footnote omitted). In holding that it would “decline to . . .

undermine” the Kansas recreational use statute, the court also expressed specific concern

that allowing liability for gratuitous conduct would eliminate the higher standard required

under the Kansas statute, i.e., willful or malicious conduct. Id. at 1450. Notably, as it

concerns this latter point, the State has expressed similar concerns in this case, cautioning

against interpretations of our statute that would obviate the need for the “gross negligence

exception” codified at Tennessee Code Annotated section70-7-104(a)(1).

Both the Stephens and Klepper decisions were considered by the Ninth Circuit when

it reviewed Hawaii’s recreational use statute in the case of Palmer v. United States. Palmer

v. United States, 945 F.2d 1134 (9th Cir. 1991). Similar to the plaintiffs in Stephens and

Klepper, the plaintiff in Palmer attempted to escape the bar of his state’s recreational use

statute by pointing to voluntary conduct of the defendant, noting, among other things, that

the defendant had specifically hired lifeguards and thereby allegedly undertaken a duty of

care. Id. at 1137. The Palmer court ultimately rejected the plaintiff’s efforts, including his

reliance on the Stephens decision. In criticizing Stephens, the Ninth Circuit wrote that

“Stephens is not persuasive . . . because the district court in Stephens erroneously believed

itself bound by [the Nelson decision]. . . . Nelson had nothing to do with the applicability

of a recreational use statute.” Id. The court opined that it was not persuaded that the

Hawaii legislature intended for an exception to exist in relation to the recreational use

statute just because a landowner acted gratuitously to make land safer. Id. According to

the court, Klepper was “instructive” in this regard. Id. The court further noted that if the

plaintiff’s voluntary conduct argument were to be embraced, “the result might be to

discourage efforts to make recreational facilities safer.” Id. at 1138.

In Stann v. Waukesha County, the Wisconsin Court of Appeals confronted the same

type of argument considered in the decisions discussed above. Stann involved a tragic case

concerning the death of a three-year-old child. Stann v. Waukesha Cty., 468 N.W.2d 775,

777 (Wisc. Ct. App. 1991). Before her later death at a hospital, the child at issue in Stann

had gone missing while at a county beach, only later to be found submerged in the

children’s area. Id. When the child’s parents brought a wrongful death action against the

county, they alleged negligence in several respects, including that the county’s lifeguards

had failed to take appropriate action upon hearing that the child was missing. Id. In an

affidavit, the child’s mother had estimated that twenty to twenty-five minutes had elapsed

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from the time she first reported that her daughter was missing until the child was found.

Id.

The child’s parents contended that Wisconsin’s recreational use immunity did not

apply to their claim that the lifeguards had failed to take appropriate actions. Id. at 780. In

part, they argued that the county had, “by training and placing lifeguards on duty,

gratuitously assumed a responsibility not immunized under the statute.” Id. The Wisconsin

Court of Appeals rejected the parents’ contention, noting the instruction and logic

contained in a then-recent decision by its Supreme Court:

In [Ervin v. City of Kenosha, 159 Wis.2d 464, 464 N.W.2d 654 (1991)], two

boys drowned at a city park beach after they encountered an unmarked eight-

foot drop-off. The boys’ parents alleged, inter alia, that the city lifeguards

were negligent in performing their duties and that the city was negligent in

its hiring and training of the lifeguards. The parents further argued that the

lifeguards’ actions constituted the shouldering of an additional duty to which

immunity did not attach. Relying on the recreational immunity statute, the

trial court granted summary judgment to the city of Kenosha.

On appeal, the parents in Ervin relied, as do the Stanns here,

on American Mutual Liability Ins. Co. v. St. Paul Fire & Marine Ins. Co., 48

Wis.2d 305, 313, 179 N.W.2d 864, 868 (1970), which provides that liability

may attach to the “gratuitous” undertaking of duty. In Ervin, the supreme

court held that American Mutual is inapplicable in cases where recreational

use immunity is asserted as a defense. See Ervin, 159 Wis.2d at 476–77, 464

N.W.2d at 659.

The supreme court’s reasoning was twofold. First, the court noted that

“[t]he legislature clearly expressed an intent to change conflicting common

law when it enacted 1983 Wis.Act 418.” Id. at 476, 464 N.W.2d at 659.

Second, the American Mutual rule would have the effect of narrowing the

scope of immunity for landowners, and thus run afoul of the legislature’s

express directive that sec. 895.52, Stats., be “liberally construed in favor of

property owners to protect them from liability.” Id. at 476–77, 464 N.W.2d

at 659 (quoting sec. 1, 1983 Wis. Act 418). In so doing, the supreme court

observed that “the legislature has not provided recourse for the victims’

parents under the recreational use statute” because were liability to be

“imposed on landowners for negligence in failing to provide adequate safety

measures, it would encourage landowners to provide no safety

measures....” Id. at 477, 464 N.W.2d at 659–60 (emphasis added). “Such a

result would conflict with the intent of sec. 895.52.” Id. at 477, 464 N.W.2d

at 660.

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Id. at 783.

Other courts have since adhered to this same course of action and denied plaintiffs’

efforts to maintain assumed duty allegations outside the ambit of recreational use statute

immunity. See, e.g., Johnson v. Lloyd’s of London, 653 So.2d 226, 231 (La. Ct. App. 1995)

(citing favorably to Klepper and Palmer, holding that “passive or active” negligence falls

within the scope of Louisiana’s recreational use provisions, and expressing concern that a

holding alternative to the rule from Klepper and Palmer would “encourage owners to take

no steps whatsoever to make recreational facilities safer, and might encourage some

landowners to withdraw their land from recreational use altogether, thereby undermining

the very purpose of the legislation”); Mena v. Lack’s Beach Serv., Inc., Civil Action No.

4:06-cv-2536-TLW, 2008 WL 8850813, at *6 (D.S.C. Apr. 16, 2008) (favorably

referencing Palmer, Klepper, and Stann); see also Reed v. City of Portsmouth, Civil No.

12-cv-164-JD, 2013 WL 1386613, at *3 (D.N.H. Apr. 3, 2013) (granting summary

judgment in favor of a city owner of park despite plaintiffs’ argument that, even if the

recreational use statute otherwise applied, the city could be liable because it assumed a

duty to maintain park through maintenance, regulation, and patrolling).

Of course, the critical question here is whether the same analysis should obtain

under Tennessee’s recreational use statute. Again, we are of the opinion that it should. To

recap, the Pierces appear to rely upon the language in Tennessee Code Annotated section

70-7-104(a)(2) to support their argument that a defendant’s voluntary undertaking could

effectively result in a waiver of recreational use statute immunity. Although there are, as

previously noted, certainly some interesting questions as to the specific scope of this

provision, we note again that there is nothing in it or elsewhere in the recreational use

statute indicating that exceptions exist for gratuitous undertakings by landowners.

Moreover, insofar as section 70-7-104(a)(2) contains the language “owed a duty,” which

the Pierces appear to seize upon, we emphasize once more that we construe this to refer to

legal duties otherwise owed as a general proposition. In other words, we do not interpret

the provision as somehow contemplating liability for the alleged assumption of the very

duties Tennessee Code Annotated section 70-7-102 says are not owed. The absence of any

such textual signal notwithstanding, allowing liability to potentially attach in this context

could, as a practical consequence, discourage landowners from taking any precautionary

measures, a point about which several of the above-discussed cases have expressed

concern.

Of note, we observe that one court has already broached the topic of whether

Tennessee’s recreational use statute contains any exceptions for alleged assumed duties.

In the previously-cited Cagle decision, the plaintiff argued that the statute’s immunity

provisions should not apply due to certain voluntary undertakings by the defendant. Cagle,

937 F.2d at 1076. The Sixth Circuit did not find favor in this contention, including the

plaintiff’s reliance on the Stephens decision, stating that the Tennessee recreational use

statute “seems to anticipate, and reject, the argument that plaintiff makes.” Id. In making

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its point, the court took stock of, among other things, the explicitness of Tennessee Code

Annotated section 70-7-102 as to the duties that are not required of a landowner. Id.

What we have here is a case where the Pierces seek to hold the State liable for

alleged breaches of alleged assumed duties, and the very nature of those duties corresponds

to behavior which Tennessee Code Annotated section 70-7-102 immunizes. Consistent

with the foregoing discussion, we therefore conclude that the Pierces’ argument is without

merit. Tennessee Code Annotated section 70-7-104(a)(2) is unavailable to the Pierces as

an exception, even under their advocated-for reading of the text.

CONCLUSION

For the specific reasons stated herein, the Claims Commission’s dismissal of the

complaint is affirmed.

s/ Arnold B. Goldin

ARNOLD B. GOLDIN, JUDGE

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