A.B. Normal, LLC v. State of Tennessee

12/03/2021

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

September 8, 2021 Session

A.B. NORMAL, LLC V. STATE OF TENNESSEE

Appeal from the Tennessee Claims Commission

No. T20192248-1 James A. Haltom, Commissioner

No. M2020-01390-COA-R3-CV

A property owner whose property was destroyed by a lightning-induced fire filed suit

against the State on the theory of negligence. The Claims Commission dismissed the case

after concluding that any negligence on the part of the State was not the proximate cause

of the property owner’s injury. Finding no error, we affirm the decision of the Claims

Commission.

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

Affirmed

ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,

JR., P.J., M.S., and KRISTI M. DAVIS, J., joined.

Cody Russell Galaher, Franklin, Tennessee, for the appellant, A.B. Normal, LLC.

Herbert H. Slatery, III, Attorney General and Reporter, Andrée Blumstein, Solicitor

General, and William Michael Evans, Assistant Attorney General, for the appellee, State

of Tennessee.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

A.B. Normal, LLC, (“A.B. Normal”) owns real property located off of State

Highway 85 in Gainesboro, Tennessee. Karen Isenhower and Charles Cummings1 lived in

a house on the property. In September 2018, Ms. Isenhower and Mr. Cummings contacted

the Tennessee Department of Transportation (“TDOT”) about problems they observed with

an easement bridge that provided the sole means of accessing the property. Specifically,

1

According to the record, Ms. Isenhower is a representative of A.B. Normal, and Charles Cummings is

her son.

Ms. Isenhower and Mr. Cummings informed TDOT that the property became entirely

inaccessible any time there was a hard rain because the bridge would flood and become

impassible.

Lisa Scantland, a TDOT employee, inspected the bridge in September 2018. She

returned to the property in December 2018 along with one of her co-workers, Joshua Neal,

to inspect the bridge for the flooding issues that frequently left the property inaccessible.

Thereafter, Bo Hoskins, a TDOT engineer, conducted a teleconference with Mr. Neal, Ms.

Isenhower, and Mr. Cummings. During this teleconference, Mr. Cummings expressed his

safety concerns that the bridge’s tendency to flood would prevent authorities from reaching

the property during an emergency. Mr. Hoskins concluded, however, that there were no

exigent circumstances or concerns for TDOT to address at that time.

Approximately two months later, on February 6, 2019, lightning struck the property

during a heavy thunderstorm, causing a fire in the house. Mr. Cummings called 911 and,

when firefighters arrived, the fire had destroyed only the bathroom. One fire truck

managed to cross the bridge but became immobilized. After making minimal progress

combating the fire, the firefighters were ordered to evacuate and let the house burn due to

safety concerns regarding floodwater encroaching the bridge. Thereafter, additional

emergency responders arrived on the scene but were unable to cross the bridge because it

was submerged in more than thirty inches of water. The fire completely destroyed the

house and eventually burned at least eight acres of farmland used for growing hay.

A.B. Normal filed a claim for damages against the State in the Division of Claims

and Risk Management on April 12, 2019. When the claim was transferred to the Tennessee

Claims Commission several months later, A.B. Normal filed a formal complaint alleging

that it was entitled to $350,000 in damages due to the State’s negligence. According to

A.B. Normal, the State was responsible for maintaining the bridge but failed to do so,

resulting in the bridge flooding and the property being inaccessible by emergency services

the night of the fire.2 The State responded by filing a motion to dismiss the complaint

pursuant to Tenn. R. Civ. P. 12.02(6) for failure to state a claim upon which relief could be

granted, arguing that A.B. Normal could not prove proximate cause because lightning,

rather than the flooded bridge, caused the fire that destroyed the property.

After hearing the matter, the Claims Commission granted the State’s motion and

dismissed the case based on its conclusion that “lightning started a fire, which was the

proximate, or legal cause of the plaintiff’s injury. The lightning was the substantial factor

in the harm done to [A.B. Normal], as opposed to anything the State did or did not do.”

2

In the complaint, A.B. Normal also asserted a claim for an injunction ordering the State to “promptly

repair or adequately replace” the bridge. The Claims Commission dismissed this claim because it lacked

jurisdiction over such a claim pursuant to Tenn. Code Ann. § 9-8-307(a)(1), which limits the Claims

Commission to granting monetary relief. See Burchfield v. State, 774 S.W.2d 178, 184 (Tenn. Ct. App.

1988).

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A.B. Normal appealed and presents a solitary issue for our review: whether the trial court

erred in granting the motion to dismiss.

STANDARD OF REVIEW

A motion to dismiss a complaint pursuant to Tenn. R. Civ. P. 12.02(6) “challenges

only the legal sufficiency of the complaint, not the strength of the plaintiff’s proof or

evidence.” Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426

(Tenn. 2011). A defendant filing “a motion to dismiss ‘admits the truth of all of the relevant

and material allegations contained in the complaint, but . . . asserts that the allegations fail

to establish a cause of action.’” Id. (quoting Brown v. Tenn. Title Loans, Inc., 328 S.W.3d

850, 854 (Tenn. 2010)). A court resolves a Rule 12.02(6) motion “by examining the

pleadings alone.” Ellithorpe v. Weismark, 479 S.W.3d 818, 824 (Tenn. 2015).

When determining whether a complaint should be dismissed for failure to state a

claim, the court “‘must construe the complaint liberally, presuming all factual allegations

to be true and giving the plaintiff the benefit of all reasonable inferences.’” Tigg v. Pirelli

Tire Corp., 232 S.W.3d 28, 31 (Tenn. 2007) (quoting Trau-Med of Am., Inc. v. Allstate Ins.

Co., 71 S.W.3d 691, 696 (Tenn. 2002)). A motion to dismiss should be granted if it appears

that the plaintiff cannot prove any set of facts in support of the claim entitling him or her

to relief. Webb, 346 S.W.3d at 426. A trial court’s decision to grant or deny a motion to

dismiss involves a question of law which we review de novo with no presumption of

correctness. Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307 (Tenn. 2012).

ANALYSIS

It has long been established that “‘[t]he State of Tennessee, as a sovereign, is

immune from suit except as it consents to be sued.’” Stewart v. State, 33 S.W.3d 785, 790

(Tenn. 2000) (quoting Brewington v. Brewington, 387 S.W.2d 777, 779 (Tenn. 1965)). The

State has consented to be sued for negligently designed and maintained state highways and

bridges, as well as for dangerous conditions on state maintained highways that present a

foreseeable risk and of which the State had sufficient prior notice. Tenn. Code Ann. § 9-

8-307(a)(1)(I), (J). To prevail on a negligence claim, a plaintiff must prove five essential

elements: “1) a duty of care owed by the defendant to the plaintiff; 2) conduct falling

below the applicable standard of care amounting to a breach of that duty; 3) an injury or

loss; 4) causation in fact; and 5) proximate, or legal, cause.” King v. Anderson Cnty., 419

S.W.3d 232, 246 (Tenn. 2013).

At issue in this case is the proximate cause element. Proximate cause is a type of

causation that focuses on “‘whether the policy of the law will extend responsibility for that

negligent conduct to the consequences that have occurred.’” Id. (quoting Kilpatrick v.

Bryant, 868 S.W.2d 594, 598 (Tenn. 1993)). It puts “a limit on the causal chain, such that,

even though the plaintiff’s injury would not have happened but for the defendants’ breach,

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defendants will not be held liable for injuries that were not substantially caused by their

conduct or were not reasonably foreseeable results of their conduct.” Hale v. Ostrow, 166

S.W.3d 713, 719 (Tenn. 2005). In other words, a negligent act is the proximate cause of

an injury if the injury “‘is the natural and probable consequence’” of the negligent act. Doe

v. Linder Constr. Co., Inc., 845 S.W.2d 173, 181 (Tenn. 1992) (quoting Ward v. Univ. of

the South, 354 S.W.2d 246, 250 (Tenn. 1962)). Tennessee courts use a three-pronged test

to determine proximate cause:

“1) the tortfeasor’s conduct must have been a ‘substantial factor’ in bringing

about the harm being complained of; and 2) there is no rule or policy that

should relieve the wrongdoer from liability because the manner in which the

negligence has resulted in the harm; and 3) the harm giving rise to the action

could have reasonably been foreseen or anticipated by a person of ordinary

intelligence and prudence.”

King, 419 S.W.3d at 247 (quoting Hale, 166 S.W.3d at 719).

Here, the determination of whether the State’s supposed negligent design and

maintenance of the bridge was the proximate cause of A.B. Normal’s injury hinges on the

first requirement—whether the flooded bridge was a substantial factor in bringing about

the destruction of A.B. Normal’s property. The Claims Commission concluded that

lightning, not the flooded bridge, was the proximate cause of the injury because it was the

substantial factor in causing the fire that destroyed A.B. Normal’s property. On appeal,

A.B. Normal acknowledges that lightning striking the home started the fire that destroyed

the property, but it argues that emergency services could have easily extinguished the fire

before it entirely consumed the home and several acres of farmland if the State had repaired

the bridge to mitigate or prevent flooding during a heavy rain. Thus, A.B. Normal asserts,

the flooded bridge was a substantial factor in bringing about the destruction of the property.

We are unaware of any Tennessee cases directly on point, but we have found two

concerning similar issues that provide guidance: Davis v. Country Club, Inc., 381 S.W.2d

308 (Tenn. Ct. App. 1963) and Hames v. State, 808 S.W.2d 41 (Tenn. 1991). In Davis, a

storm arose while a golfer was on a golf course, causing the golfer to seek cover in a

weather shelter that was not lightning proof. Davis, 381 S.W.2d at 309, 311. The golfer

sustained injuries when lightning struck the shelter, and she sued the golf course on the

theory that it was negligent in failing to equip the shelter with lightning protection

materials. Id. at 311. A jury returned a verdict finding the golf course negligent and

awarded the golfer damages, but the trial court set aside the jury’s verdict and entered a

directed verdict finding the golf course was not negligent and dismissing the case. Id. at

309. On appeal, this Court affirmed the trial court holding that there was no conduct falling

below an applicable standard of care and no proximate causation. Id. at 311. The court

explained that lightning strikes are acts of God and, “‘when an act of God or an accident

combines or concurs with the negligence of the defendant to produce the injury,’” the rule

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is that “‘the defendant is liable if the injury would not have resulted but for his own

negligent act or omission.’” Id. at 310 (quoting Ferebee v. Norfolk S. R. Co., 79 S.E. 685,

686 (N.C. 1913), aff’d, 238 U.S. 269 (1915)). Because the “[b]are possibility” of lightning

striking the shelter was too remote to give rise to a requirement of due care, the Davis court

concluded that legal liability could not be imposed on the golf course. Id. at 311.

Many years later, the Hames Court considered a similar issue. In that case, the State

owned a golf course with no lightning proof shelters on it despite the United States Golf

Association’s recommendations regarding the prevention or minimization of the dangers

of lightning. Hames, 808 S.W.2d at 42. When a thunderstorm moved over the golf course,

a golfer died from being struck by a bolt of lightning. Id. The golfer’s widow sued the

State under the theory that, although lightning is an act of God, the State was negligent in

failing to maintain a warning system or constructing lightning proof shelters. Id. at 43.

The Claims Commission dismissed the case, but the Court of Appeals reversed and held

that “[t]he failure to post signs warning of the hazards of lightning on the golf course

coupled with the failure to provide lightning proof shelters, along with the lack of a policy

to clear the course during thunderstorms, constitute the proximate cause of [the golfer’s]

death.” Id. at 44. Our Supreme Court reversed and reinstated the Claims Commission’s

dismissal after determining that an act of God caused the golfer’s death rather than anything

the State may or may not have done. Id. at 45. The Court explained:

As to proximate causation, it appears that the proximate cause of the death

was the bolt of lightning, as opposed to anything that the State may or may

not have done. While the argument can be made that the absence of lightning

proof shelters and warning devices was to some extent responsible for the

death, the rule is that where two distinct causes, unrelated in operation, one

of them being the “direct cause” and the other furnishing the condition by

which the injury was made possible, the former alone is to be regarded as the

proximate cause of the result. Even assuming that the failure to provide

shelters or utilize warning devices was negligence, such failure merely

furnished the condition by which the lightning could strike the decedent.

Id. (citing Ward, 354 S.W.2d at 251).

Thus, the holdings in Davis and Hames establish that, if an act of God is the direct

cause of a plaintiff’s injury while the defendant’s act or failure to act merely furnished the

condition by which the plaintiff’s injury was possible, the act of God was the sole

proximate cause of the injury. This principle is in line with holdings in cases from other

jurisdictions that have considered facts similar to those in the present case. For instance,

in Hazel v. City of Owensboro, 99 S.W. 315, 315 (Ky. 1907), the plaintiff’s home caught

fire “from some cause unknown to her.” She discovered the fire shortly after it had started

and alerted the local fire department. Id. at 315. Because the only street over which the

fire department could access her property was in such poor condition that it was

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impassable, the fire department was considerably delayed in arriving to combat the fire.

Id. Consequently, the fire destroyed the plaintiff’s home because the fire “was beyond

control” when the fire department finally arrived. Id. The plaintiff sued the city alleging

that her loss “was the result of the negligence of the city in failing to keep its streets in

reasonably safe condition for public travel.” Id. The trial court entered a judgment in favor

of the city, and the plaintiff appealed. Id.

On appeal, the Hazel Court affirmed the trial court after concluding that any

negligence of the city was not the proximate cause of the plaintiff’s injury. Id. at 315-16.

As the court explained,

Her loss directly resulted from the fire. The negligent condition of the street

had nothing to do with the origin of the fire. So that the question is, could or

would the fire have been extinguished if the street had been in good condition

for public travel, or, to put it another way, was the destruction of her house

caused by the negligent condition of the street? This is altogether

problematical. Certain it is that the city was in no wise responsible for the

fire, and in this particular it committed no breach of duty. Nor can it be said

that it could reasonably be anticipated by the city that any loss by fire would

result from the condition of the street. This being true, it is difficult to

perceive upon what ground the city can be asked to respond in damages

because its street was out of repair. The connection between the condition

of the street and the fire is too remote; in fact there is none.

Id. at 316; see also McAfee v. State, 149 N.Y.S.2d 547 (N.Y. Ct. Cl. 1956) (affirming

dismissal where condition of the road required fire department to take a circuitous route

because “the State is not liable for damages caused by fire, due to the impediment or delay

of fire apparatus by reconstruction or repair of the highway under legislative authority”).

Similarly, in Sheley v. Swing, 65 Ohio App. 109, 110 (Ohio Ct. App. 1939), the

plaintiff alleged that a fire destroyed her home because the county road abutting her

property was impassable for the fire extinguishing equipment used by the fire department

due to the city’s digging of ditches across the road. The plaintiff sued the county

commissioners, alleging that the fire department arrived in time to extinguish the fire but

was prevented from doing so due to the county’s negligence in maintaining the road. Id.

at 110-11. The trial court dismissed the case and, on appeal, the Ohio Court of Appeals

affirmed after determining that the condition of the road was not the proximate cause of

the plaintiff’s injury. As the court stated,

The negligence creating liability is “in not keeping any such road or bridge

in proper repair.” For what? Plainly, for travel. Its condition in relation to

travel would determine whether the duty had been performed. Clearly, the

meaning of this would seem to be that to create a liability, the road would

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have to be out of repair and that that condition had been caused by the

defendants’ failure to exercise reasonable care. It is only the conduct in

relation to the repair that is of significance in this connection. . . . Until a

person proceeds to use the road, he does not bring himself in relation to the

county in such a way as to cause the duty to become active for his protection.

The negligence inhered in the condition of the road. It was not ambulatory.

Juxtaposition could only be created by the public coming to it, and that could

only be accomplished by using the highway, or by being so close to the

highway that injury was received as a direct result of the defect.

Now the plaintiff was not traveling upon this highway. The members

of the . . . fire department were, but no injury was suffered by them. They

are not parties to this action. Nothing happened on the highway. No force

emanated from it that harmed the plaintiff’s property. Until the plaintiff

should bring her property within the perimeter of the zone of danger created

by the defect, no duty was owing to her, and until a duty arose, no damage

suffered could be the proximate result of the defect.

Id. at 111-12 (citing 22 Ruling Case Law, 116 Section 5).

Applying the foregoing principles to the facts in the case at bar, we conclude that

any negligence of the State in maintaining the bridge was not the proximate cause of A.B.

Normal’s injury. Nothing emanated from the bridge to destroy A.B. Normal’s property.

Indeed, the loss directly resulted from a fire ignited by lightning striking the property rather

than from anything the State did or did not do. As Billy Joel once sang, “We didn’t start

the fire. No, we didn’t light it, but we tried to fight it.” BILLY JOEL, We Didn’t Start the

Fire, on STORM FRONT (Columbia Records 1989). Any negligence of the State in

designing or maintaining the bridge merely furnished the condition by which the fire could

destroy the property. The connection between the cause of the fire and the actions or

inactions of the State is too remote. Thus, under these circumstances, the condition of the

bridge was not a substantial factor in bringing about the injury—the lightning-induced fire

was. The lightning-induced fire is, therefore, the sole proximate cause of A.B. Normal’s

injury. Based on the foregoing, we conclude that the Claims Commission properly

dismissed the case pursuant to Tenn. R. Civ. P. 12.02(6).

CONCLUSION

The judgment of the Claims Commission is affirmed. Costs of this appeal are

assessed against the appellant, A.B. Normal, LLC, for which execution may issue if

necessary.

_/s/ Andy D. Bennett_______________

ANDY D. BENNETT, JUDGE

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