explaining that a complaint may be dismissed based on an affirmative defense if the defense “clearly and unequivocally appears on the face of the complaint”
How later courts described this case
- explaining that a complaint may be dismissed based on an affirmative defense if the defense “clearly and unequivocally appears on the face of the complaint”
- “Decision making and the use of judgment is not synonymous with discretion for purposes of immunity.”
- explaining that “[a]n operational decision requires that the decision-maker act reasonably when implementing preexisting policy”
- “[C]ourts are not required to accept as true assertions that are merely legal arguments or ‘legal conclusions’ couched as facts.”
Written by the judges who cited it.
The opinion
04/25/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
August 3, 2021 Session
ALLISON HAYNES v. PERRY COUNTY, TENNESSEE
Appeal from the Circuit Court for Perry County
No. 2019-CV-5 Michael E. Spitzer, Judge
___________________________________
No. M2020-01448-COA-R3-CV
___________________________________
A gunshot victim filed a tort action against a county, alleging misconduct on the part of a
sheriff’s deputy. The plaintiff asserted that the county was liable under both the
Governmental Tort Liability Act and Tennessee Code Annotated § 8-8-302. The county
moved to dismiss the complaint. The county argued that it was immune from liability
under either the discretionary function exception or the public duty doctrine. The trial court
dismissed the complaint. We conclude that, because the deputy sheriff’s actions as alleged
in the complaint were operational in nature, the county is not immune from liability under
the Governmental Tort Liability Act. The complaint also contains sufficient factual
allegations of reckless misconduct such that the special duty exception to the public duty
doctrine could apply. So we vacate the dismissal.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated
and Case Remanded
W. NEAL MCBRAYER, J., delivered the opinion of the court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and ANDY D. BENNETT, J., joined.
Leanne A. Thorne, Lexington, Tennessee, for the appellant, Allison Haynes.
James I. Pentecost and Haynes T. Russell, Jackson, Tennessee, for the appellee, Perry
County, Tennessee.
OPINION
I.
Earl Gene Haynes had a history of violence. He was convicted of murdering his
first wife. His second wife, Allison Haynes, accused him of domestic abuse. She obtained
an order of protection against him in June 2018. When he was served, Mr. Haynes told the
police officer, “I guess I just need to shoot her between the eyes and be done with it. I’m
going to get violated anyway.” Shortly thereafter, Mrs. Haynes voluntarily dismissed the
order. Around the same time, an unknown perpetrator set fire to her car. The police
suspected her husband.
Mrs. Haynes tried to escape the abusive relationship. She moved in with a friend,
Cindy Keen, in a neighboring county. Still, Mr. Haynes pursued her. He called Ms. Keen
multiple times, threatening to kill both women. Each time, Ms. Keen reported the threats
to Investigator Rosson of the Perry County Sheriff’s Department. Ms. Keen never spoke
to Investigator Rosson directly, but she left him multiple voice mail messages. He never
returned any of her calls.
On August 31, 2018, Mr. Haynes shot his estranged wife multiple times. Although
she suffered life-threatening injuries, Mrs. Haynes survived.
Mrs. Haynes filed suit against Perry County for alleged misconduct of its employee,
Investigator Rosson. She claimed that the deputy sheriff’s failure to investigate the death
threats and arrest Mr. Haynes was the proximate cause of her injuries. She asserted that
Perry County was liable under the Governmental Tort Liability Act, Tennessee Code
Annotated § 29-20-205, and the county’s statutory liability for non-negligent misconduct
of a deputy sheriff, Tennessee Code Annotated § 8-8-302.
Perry County moved to dismiss the complaint. The County argued that it was
immune from liability based either on the discretionary function exception or the public
duty doctrine. The trial court agreed with both arguments and dismissed the complaint.
II.
We review the trial court’s decision on a motion to dismiss de novo without any
presumption of correctness. Phillips v. Montgomery Cty., 442 S.W.3d 233, 237 (Tenn.
2014). A Rule 12.02(6) motion to dismiss “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). The complaint should not
be dismissed “unless it appears that the plaintiff can prove no set of facts in support of the
2
claim that would warrant relief.” Cannon Cty. Bd. of Educ. v. Wade, 178 S.W.3d 725, 727
(Tenn. Ct. App. 2005) (citing Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn. 1999)).
In evaluating a motion to dismiss, we “construe the complaint liberally, presuming
all factual allegations to be true and giving the plaintiff the benefit of all reasonable
inferences.” Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn. 2002).
Viewed in that light, the “complaint must contain sufficient factual allegations to articulate
a claim for relief.” Abshure v. Methodist Healthcare-Memphis Hosps., 325 S.W.3d 98,
104 (Tenn. 2010).
A.
Under the Governmental Tort Liability Act (“GTLA”), an injured party may sue a
county for the negligent acts or omissions of a county employee acting within the scope of
employment. Tenn. Code Ann. § 29-20-205 (Supp. 2021). But counties are immune from
liability if the injury arises from the “exercise or performance or the failure to exercise or
perform a discretionary function, whether or not the discretion is abused.” Id. § 29-20-
205(1).
“[T]o some extent, every act involves discretion.” Bowers ex rel. Bowers v. City of
Chattanooga, 826 S.W.2d 427, 431 (Tenn. 1992). The discretionary function exception
does not encompass every act that could be considered discretionary. Id. at 430; Brown v.
Hamilton Cty., 126 S.W.3d 43, 48 (Tenn. Ct. App. 2003) (“Decision making and the use
of judgment is not synonymous with discretion for purposes of immunity.”). Our supreme
court has adopted a planning-operational test to determine whether a decision is
discretionary within the meaning of the GTLA. Bowers, 826 S.W.2d at 430. This test
focuses on the “type of decision” at issue, not the “identity of the decision maker.” Id. at
430-31.
Planning or policy-making decisions are immune from liability. Id. at 430.
Typically, these decisions are reached after “consideration or debate by an individual or
group charged with the formulation of plans or policies.” Id. at 431. They “often result
from assessing priorities; allocating resources; developing policies; or establishing plans,
specifications, or schedules.” Id.; see Helton v. Knox Cty., 922 S.W.2d 877, 886 (Tenn.
1996) (“The discretionary function exception covers acts involving an element of judgment
or choice if they are based on considerations of public policy.”). Courts are “ill-equipped
to investigate and balance the numerous factors that go into an executive or legislative
decision.” Bowers, 826 S.W.2d at 431.
Operational decisions do not enjoy the same protection. Id. at 430. Ad hoc
decisions “based on preexisting laws, regulations, policies, or standards” are operational.
Id. at 431. But the absence of a guiding policy does not preclude a finding that the decision
was operational. A negligent act or omission is operational when it is made “(1) in the
3
absence of a formulated policy guiding the conduct or omission; or (2) when the conduct
deviates from an established plan or policy.” Chase v. City of Memphis, 971 S.W.2d 380,
384 (Tenn. 1998).
According to the complaint, Ms. Keen left multiple messages for Investigator
Rosson describing Mr. Haynes’s threats and identifying Mrs. Haynes as one of the targets.
Yet, the deputy sheriff never “return[ed] Ms. Keen’s calls or otherwise sp[o]ke with
Ms. Keen to investigate the threats.”
We conclude that the acts alleged in the complaint are operational. Deputy sheriffs
have a statutory duty to investigate criminal activity. Tenn. Code Ann. § 38-3-102(b)
(2014). This duty is heightened when the complaint involves domestic abuse. Id. § 36-3-
619(c) (2021). Mr. Haynes’s threats could constitute crimes. See id. § 39-13-101(a)(2)
(Supp. 2021) (criminal assault), § 39-13-111 (2018) (domestic assault), § 39-17-315
(2018) (stalking), § 39-17-315(c)(1) (aggravated stalking). At the very least, Investigator
Rosson had a duty to respond reasonably to the report of a possible crime.1 See Giggers v.
Memphis Hous. Auth., 363 S.W.3d 500, 507-08 (Tenn. 2012) (explaining that “[a]n
operational decision requires that the decision-maker act reasonably when implementing
preexisting policy”); Seidner v. Metro. Gov’t of Nashville-Davidson Cty., No. 01-A-01-
9012-CV00451, 1991 WL 66440, at *3 (Tenn. Ct. App. May 1, 1991) (stating that law
enforcement officer fulfilled his duty to the plaintiffs “by promptly responding to their call
and making reasonable investigation of their complaint”).
Taking the facts alleged in the complaint as true and giving Mrs. Haynes the benefit
of all reasonable inferences, we conclude that the complaint alleged sufficient operational
acts or omissions to survive the motion to dismiss. As this case develops, the proof may
show otherwise.2 Still, at this juncture, we conclude that the complaint has stated a claim
for relief under the GTLA.
1
Perry County complains that Mrs. Haynes failed to allege these statutes in her complaint. See
Tenn. R. Civ. P. 8.05(1) (“Every pleading stating a claim or defense relying upon the violation of a statute
shall, in a separate count or paragraph, either specifically refer to the statute or state all of the facts necessary
to constitute such breach so that the other party can be duly apprised of the statutory violation charged.”).
The complaint plainly alleged that Investigator Rosson failed to investigate death threats against
Mrs. Haynes. These allegations were sufficient to apprise Perry County of the nature of the claim.
2
Perry County suggests that the deputy sheriff’s decision involved the allocation of county
resources and the assessment of department priorities. See Bowers, 826 S.W.2d at 431 (cautioning that
“there may be occasions where an ‘operational act’ is entitled to immunity, where, for instance, the
operational actor is properly charged with balancing policy considerations”). As the record now stands, we
cannot agree.
4
B.
The motion to dismiss also relied on the public duty doctrine. The public duty
doctrine “provide[s] an additional layer of defense to acts or omissions not immune under
the GTLA.” Matthews v. Pickett Cty., 996 S.W.2d 162, 165 (Tenn. 1999). It “shields a
public employee from suits for injuries that are caused by the public employee’s breach of
a duty owed to the public at large.” Ezell v. Cockrell, 902 S.W.2d 394, 397 (Tenn. 1995).
The duty to keep the peace is a public duty. Hurd v. Woolfork, 959 S.W.2d 578, 581 (Tenn.
Ct. App. 1997).
Mrs. Haynes maintains that this action falls within the “special duty” exception to
the public duty doctrine. Ezell, 902 S.W.2d at 402. If a special relationship exists between
the plaintiff and the public employee, the governmental entity is not immune from suit. Id.
at 401. A special duty of care exists when:
1) officials, by their actions, affirmatively undertake to protect the plaintiff,
and the plaintiff relies upon the undertaking; 2) a statute specifically provides
for a cause of action against an official or municipality for injuries resulting
to a particular class of individuals, of which the plaintiff is a member, from
failure to enforce certain laws; or 3) the plaintiff alleges a cause of action
involving intent, malice, or reckless misconduct.
Id. at 402.
Mrs. Haynes relies on the third scenario—reckless misconduct. Our courts define
recklessness as the conscious disregard of a substantial and unjustifiable risk constituting
a gross deviation from the standard of care. Hodges v. S.C. Toof & Co., 833 S.W.2d 896,
901 (Tenn. 1992). To survive the motion to dismiss, the complaint must do more than
simply allege that Investigator Rosson was reckless. See Webb, 346 S.W.3d at 427
(“[C]ourts are not required to accept as true assertions that are merely legal arguments or
‘legal conclusions’ couched as facts.”). Rather, “the facts set out in the complaint must
show a level of culpability beyond mere negligence.” Kimble v. Dyer Cty., No. W2019-
02042-COA-R3-CV, 2020 WL 7389381, at *6 (Tenn. Ct. App. Dec. 16, 2020), perm. app.
denied, (Tenn. Apr. 7, 2021).
According to the complaint, Mr. Haynes was no stranger to law enforcement. He
had a well-known history of violence. He had been convicted of killing a previous wife.
And Mrs. Haynes had obtained an order of protection based on allegations of domestic
abuse. When he was served with the order of protection, Mr. Haynes told the police officer
that he “just need[ed] to shoot [Mrs. Haynes] between the eyes and be done with it.”
Although Mrs. Haynes voluntarily dismissed the protective order, Mr. Haynes remained a
person of interest to the police. He was being actively investigated for burning
Mrs. Haynes’s car when the death threats were reported. With this background,
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Investigator Rosson’s failure to follow up on multiple reports that Mr. Haynes was
threatening to kill his estranged wife goes beyond mere negligence.
On a motion to dismiss, we must “read the complaint with a generous eye.” Leach
v. Taylor, 124 S.W.3d 87, 92 (Tenn. 2004). Viewed in that light, we find the factual
allegations in the complaint “sufficient to permit a finding that [Investigator Rosson]
consciously disregarded a substantial and unjustifiable risk of such a nature that its
disregard constituted a gross deviation from the standard of ordinary care.” See Karnes v.
Madison Cty., No. W2009-02476-COA-R3-CV, 2010 WL 3716458, at *6 (Tenn. Ct. App.
Sept. 23, 2010). Perry County is not clearly immune from liability under the public duty
doctrine. See Anthony v. Tidwell, 560 S.W.2d 908, 909 (Tenn. 1977) (explaining that a
complaint may be dismissed based on an affirmative defense if the defense “clearly and
unequivocally appears on the face of the complaint”).
As Perry County correctly points out, the GTLA only removes sovereign immunity
for negligence, not recklessness. See Doe v. Pedigo, No. E2002-01311-COA-R3-CV, 2003
WL 21516220, at *2 (Tenn. Ct. App. June 30, 2003) (agreeing that the GTLA only removes
liability for negligent acts or omissions). Even so, the complaint also asserted liability
based on Tennessee Code Annotated § 8-8-302. That statute removes sovereign immunity
for non-negligent acts or omissions of a deputy sheriff if, at the time of the injury, the
deputy sheriff is “acting by virtue of or under color of the office.” Tenn. Code Ann. § 8-
8-302; Jenkins v. Loudon Cty., 736 S.W.2d 603, 609 (Tenn. 1987), abrogated in part by
Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73 (Tenn. 2001). So if Investigator Rosson
recklessly failed to perform the duties of his office, Perry County could possibly be liable
on this basis.3
III.
Construing the complaint liberally in favor of Mrs. Haynes, we conclude that
Investigator Rosson’s actions were operational. So the trial court erred in dismissing the
complaint based on the discretionary function exception. While the duty to keep the peace
is a public duty, the complaint also contains adequate factual allegations of recklessness to
avoid dismissal based on the public duty doctrine. So we vacate the dismissal of the
complaint and remand for further proceedings consistent with this opinion.
s/ W. Neal McBrayer
W. NEAL MCBRAYER, JUDGE
3
Because we conclude that Investigator Rosson’s decision did not fall within the discretionary
function exception, we do not address whether this exception also applies to Mrs. Haynes’s non-GTLA
claim. See Tenn. Code Ann. § 8-8-302 (2016).
6