The opinion
01/08/2024
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
November 28, 2023 Session
LARRY KING ET AL. v. TOWN OF SELMER, TENNESSEE
Appeal from the Circuit Court for McNairy County
No. 17-CV-21, 17-CV-20 J. Weber McCraw, Judge
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No. W2023-00390-COA-R9-CV
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In this Tennessee Rule of Appellate Procedure 9 interlocutory appeal, we address whether
the trial court erred in denying Appellant Town’s motion for summary judgment on
Appellees’ negligence and joint-venture claims. We conclude that the public-duty doctrine
shields the Town from liability, and the special-duty exception does not apply.
Furthermore, Appellees’ “joint venture” claims are simply additional negligence claims
seeking to hold Appellant Town liable for the alleged negligence of other defendants.
Because the Tennessee Legislature has not waived governmental immunity under such
circumstances, Appellant Town’s immunity was never removed as to the “joint venture”
claims. As such, the trial court erred in denying Appellant Town’s motion for summary
judgment as to Appellees’ negligence and “joint venture” claims.
Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court
Reversed and Remanded
KENNY ARMSTRONG, J., delivered the opinion of the court, in which ARNOLD B. GOLDIN
and CARMA DENNIS MCGEE, JJ., joined.
John D. Burleson and Matthew R. Courtner, Jackson, Tennessee, for the appellant, Town
of Selmer, Tennessee.
Matthew T. May and Jeffrey S. Rosenblum, Memphis, Tennessee, for the appellee, Larry
King.
R. Christopher Gilreath, Memphis, Tennessee, for the appellee, Brittany Johnson.
OPINION
I. Factual and Procedural History
The Rockabilly Highway Revival Festival (the “Festival”) occurs annually in the
Town of Selmer, Tennessee (the “Town,” or “Appellant”). The events giving rise to this
case took place during the 2016 Festival. Although the Town helped organize the Festival,
it was not the exclusive manager of the event. Part of the Town’s contribution to the
Festival was to develop a traffic-control plan, which involved closing certain segments of
the streets for pedestrian-only use during the Festival. The traffic-control plan involved
placing barricades of barrels and sawhorses across streets that were closed for pedestrian
use. The Town had used this traffic-control plan from 2008 through 2015 without issue.
On June 11, 2016, during the Festival, 91-year-old Aaron Stamey drove his car
through the barricades at a speed of at least 45 miles per hour. Mr. Stamey drove his car
over 1,000 feet before fatally striking Sherrie Duncan and Michael Johnson who were
standing in the pedestrian-only area.
On June 7, 2017, Larry King, individually and as personal representative of Ms.
Duncan’s estate, filed a complaint against the Town in the Circuit Court of McNairy
County (the “trial court”). Mr. King’s complaint also named several other defendants who
are not parties to this appeal. Mr. King alleged that the Town was negligent in its
development and implementation of the traffic-control plan. Relevant here, Mr. King
alleged that under Tennessee Code Annotated section 29-20-205 of the Governmental Tort
Liability Act (the “GTLA”), discussed infra, the Town’s immunity was removed, and it
was liable for the negligent acts and omissions of its employees. Mr. King further alleged
that none of the exceptions under section 29-20-205 applied. On June 9, 2017, Brittany
Johnson, next of kin to Michael L. Johnson (together with Mr. King, “Appellees”), filed a
complaint against the Town in the trial court. Ms. Johnson’s allegations were similar to
those of Mr. King, discussed above. On July 6, 2021, the trial court consolidated
Appellees’ cases. On August 27, 2021, Ms. Johnson amended her complaint to include a
joint-venture claim, discussed further infra. On November 8, 2021, Mr. King amended his
complaint to include an identical joint-venture claim.
On March 31, 2022, the Town filed a motion for summary judgment. Relevant here,
the Town argued that it was immune from Appellees’ negligence claims under: (1) the
GTLA; and (2) the public-duty doctrine, discussed at length infra. As to Appellees’ joint-
venture claims, the Town alleged that it was also immune to such claims because: (1) the
GTLA provides no exception for joint-venture liability; and (2) even if the GTLA provided
such exception, there was no joint-venture established here. On June 14, 2022, Appellees
filed a joint response.
On August 26, 2022, the trial court heard the motion for summary judgment. By
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order of October 31, 2022, the trial court concluded that there were disputed issues of
material fact that created genuine issues for trial concerning: (1) Appellees’ negligence
claims under Tennessee Code Annotated section 29-20-205; (2) the Town’s defense under
the public-duty doctrine; (3) application of the special-duty exception; and (4) whether
there was a common purpose among the Town and other Festival participants to form a
joint-venture. Accordingly, the trial court denied the Town’s motion for summary
judgment as to Appellees’ negligence and joint-venture claims.1
On November 2, 2022, the Town moved for leave to file an interlocutory appeal
under Tennessee Rule of Appellate Procedure Rule 9. On February 6, 2023, Appellees
filed a response opposing the Town’s motion. By order of March 9, 2023, the trial court
granted the Town’s motion to seek interlocutory appeal. On March 16, 2023, the Town
filed its application to appeal with this Court. By order of May 22, 2023, this Court granted
the Rule 9 appeal and certified the following issues for review:
1. Whether the Town is immune under the public duty doctrine (“PDD”) from
Larry King and Brittany Johnson’s negligence claims against the Town?
2. Whether the Town is immune under the Tennessee Governmental Tort
Liability Act (“GTLA”) from Larry King and Brittany Johnson’s joint
venture claim against the Town?
II. Standard of Review
A trial court’s decision to grant a motion for summary judgment presents a question
of law. Therefore, our review is de novo with no presumption of correctness afforded to
the trial court’s determination. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). This
Court must make a fresh determination that all requirements of Tennessee Rule of Civil
Procedure 56 have been satisfied. Abshure v. Methodist Healthcare-Memphis Hosps.,
325 S.W.3d 98, 103 (Tenn. 2010). When a motion for summary judgment is made, the
moving party has the burden of showing that “there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law.” Tenn. R. Civ. P. 56.04. When
the party moving for summary judgment does not bear the burden of proof at trial, “the
moving party may satisfy its burden of production either (1) by affirmatively negating an
essential element of the nonmoving party’s claim, or (2) by demonstrating that the
nonmoving party’s evidence at the summary judgment stage is insufficient to establish the
nonmoving party’s claim or defense.” Rye v. Women’s Care Center of Memphis,
MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015) (italics omitted). Furthermore,
1
We note that Appellees also brought claims against the Town under Tennessee Code Annotated sections
29-20-202, 203, and 204. However, in their summary judgment response, Appellees conceded that the
Town’s immunity was not removed under these sections of the GTLA. Accordingly, the trial court granted
the Town’s motion for summary judgment as to Appellees’ claims under the foregoing statutes.
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“[w]hen a motion for summary judgment is made [and] . . . supported as
provided in [Tennessee Rule 56],” to survive summary judgment, the
nonmoving party “may not rest upon the mere allegations or denials of [its]
pleading,” but must respond, and by affidavits or one of the other means
provided in Tennessee Rule 56, “set forth specific facts” at the summary
judgment stage “showing that there is a genuine issue for trial.” Tenn. R.
Civ. P. 56.06. The nonmoving party “must do more than simply show that
there is some metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co., [Ltd. v. Zenith Radio Corp.], 475 U.S. [574,] 586, 106 S. Ct.
1348 [(1986)]. The nonmoving party must demonstrate the existence of
specific facts in the record which could lead a rational trier of fact to find in
favor of the nonmoving party.
Rye, 477 S.W.3d at 265.
III. Analysis
A. Sovereign Immunity, the GTLA, and the Public-Duty Doctrine
A brief overview of the law concerning sovereign immunity, the GTLA, and the
public-duty doctrine is helpful before proceeding with our analysis. The doctrine of
sovereign immunity has been part of Tennessee common law for well over one hundred
years. Lawson v. Hawkins Cnty., 661 S.W.3d 54, 59 (Tenn. 2023). Under this doctrine,
“the State and its political subdivisions were generally immune from suit.” Id. However,
“sovereign immunity does not bar suit when the government has ‘specifically consented to
be sued.’” Id. (quoting Hughes v. Metro. Gov’t of Nashville & Davidson Cnty., 340
S.W.3d 352, 360-61 (Tenn. 2011)). Under our Constitution, the Tennessee Legislature is
authorized to waive the protections of sovereign immunity, allowing certain suits against
governmental entities. Lawson, 661 S.W.3d at 59 (citing Tenn. Const. art. I, § 17).
In 1973, the Tennessee Legislature exercised this constitutional authority when it
passed the GTLA. Lawson, 661 S.W.3d at 59. The GTLA reiterates the common law
doctrine of sovereign immunity, see Tenn. Code Ann. § 29-20-201(a), but also removes
immunity under certain circumstances. See Tenn. Code Ann. § 29-20-202(a) (for injuries
resulting from the negligent operation of a motor vehicle or other equipment by an
employee in the scope of employment); Tenn. Code Ann. § 29-20-203(a) (for injuries
caused by a defective, unsafe, or dangerous condition of any street, alley, sidewalk or
highway, owned and controlled by such governmental entity); Tenn. Code Ann. § 29-20-
204(a) (for injuries caused by dangerous or defective condition of any public building,
structure, dam, reservoir or other public improvement owned and controlled by such
governmental entity); Tenn. Code Ann. § 29-20-205 (for injuries proximately caused by a
negligent act or omission of a governmental employee within the scope of employment
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with certain exceptions); Tenn. Code Ann. § 29-20-208 (for the purpose of claims against
and relief from a governmental entity under the Uniformed Services Employment and
Reemployment Rights Act of 1994); Tenn. Code Ann. § 29-20-209 (for causes of action
brought under § 39-17-1314(g)-(i) (local regulation of firearms)); Tenn. Code Ann. § 29-
20-210 (governmental entity may be liable for damages, injury, or death proximately
caused by it intentionally prohibiting or preventing law enforcement or fire and rescue
services from accessing a specifically bounded area within the governmental entity’s
jurisdiction during a public demonstration).
In addition to the GTLA, the public-duty doctrine provides an affirmative defense
that may “shield[] a public employee from suits for injuries that are caused by the public
employee’s breach of a duty to the public at large.” Ezell v. Cockrell, 902 S.W.2d 394,
397 (Tenn. 1995). The public-duty doctrine and its special-duty exception, discussed infra,
survived the GTLA’s enactment. Chase v. City of Memphis, 971 S.W.2d 380, 385 (Tenn.
1998). The Tennessee Supreme Court has explained the interplay of the GTLA and the
public-duty doctrine, to-wit:
Courts first look to the GTLA. If immunity is found under the GTLA, a court
need not inquire as to whether the public duty doctrine also provides
immunity. If, however, the GTLA does not provide immunity, courts may
look to the general rule of immunity under the public duty doctrine. If
immunity is then found under the public duty doctrine, the next inquiry is
whether the special duty exception removes the immunity afforded under the
public duty doctrine.
***
The special duty exception . . . removes the immunity when:
(1) a public official affirmatively undertakes 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) a plaintiff alleges a cause of action involving intent, malice,
or reckless misconduct.
Chase, 971 S.W.2d at 385 (citing Ezell, 902 S.W.2d at 402). “Where the special duty
exception is found to apply, it operates to negate the public-duty doctrine defense.” Wells
v. Hamblen Cnty., No. E2004-01968-COA-R3-CV, 2005 WL 2007197, at *4 (Tenn. Ct.
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App. Aug. 22, 2005) (citing Matthews v. Pickett Cnty., 996 S.W.2d 162, 165 (Tenn.
1999)). With the foregoing law in mind, we turn to Appellees’ claims against the Town.
B. Appellees’ Negligence Claims Against the Town
In their amended complaints, Appellees alleged that the Town’s immunity was
removed under Tennessee Code Annotated section 29-20-205, which provides that a
governmental entity’s immunity is removed “for injury proximately caused by a negligent
act or omission of any employee within the scope of his employment[.]” Tenn. Code Ann.
§ 29-20-205. There are certain exceptions to this statute, but those exceptions are not at
issue in this appeal.2 As discussed above, the Town moved for summary judgment on
2
At the time Appellees filed their complaints, Tennessee Code Annotated section 29-20-205 waived
immunity for negligent acts or omissions of employees within the scope of employment unless the injury
arose out of:
(1) The exercise or performance or the failure to exercise or perform a discretionary
function, whether or not the discretion is abused;
(2) False imprisonment pursuant to a mittimus from a court, false arrest, malicious
prosecution, intentional trespass, abuse of process, libel, slander, deceit, interference with
contract rights, infliction of mental anguish, invasion of right of privacy, or civil rights;
(3) The issuance, denial, suspension or revocation of, or by the failure or refusal to issue,
deny, suspend or revoke, any permit, license, certificate, approval, order or similar
authorization;
(4) A failure to make an inspection, or by reason of making an inadequate or negligent
inspection of any property;
(5) The institution or prosecution of any judicial or administrative proceeding, even if
malicious or without probable cause;
(6) Misrepresentation by an employee whether or not such is negligent or intentional;
(7) Or results from riots, unlawful assemblies, public demonstrations, mob violence and
civil disturbances;
(8) Or in connection with the assessment, levy or collection of taxes; or
(9) Or in connection with any failure occurring before January 1, 2005, which is caused
directly or indirectly by the failure of computer software or any device containing a
computer processor to accurately or properly recognize, calculate, display, sort, or
otherwise process dates or times, if, and only if, the failure or malfunction causing the loss
was unforeseeable or if the failure or malfunction causing the loss was foreseeable but a
reasonable plan or design or both for identifying and preventing the failure or malfunction
was adopted and reasonably implemented complying with generally accepted computer
and information system design standards. Notwithstanding any other law, nothing in this
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Appellees’ negligence claims arguing that: (1) its immunity was not removed under the
GTLA; (2), even if its immunity was removed, the public-duty doctrine applied and
shielded the Town from liability; and (3) there was no special-duty exception applicable in
this case to remove the Town’s public-duty immunity. The trial court disagreed and
concluded that there were disputed issues of material fact concerning: (1) Appellees’
negligence claims under section 29-20-205; (2) the Town’s affirmative defense of the
public-duty doctrine; and (3) whether a special-duty exception applied to remove any
immunity the Town may have under the public-duty doctrine.
1. Whether the Town’s Immunity was Removed Under the GTLA
The Town’s first issue on appeal is whether it is immune from Appellees’
negligence claims under the public-duty doctrine. As discussed above, courts do not
engage in a public-duty analysis unless immunity is first removed under the GTLA. Chase,
971 S.W.2d at 385. Here, the trial court concluded that there were disputed issues of
material fact as to whether the Town was immune under section 29-20-205. Whether the
Town maintained its immunity under the GTLA as to Appellees’ negligence claims is not
at issue in this appeal. “Under Rule 9 of the Tennessee Rules of Appellate Procedure, the
issues in a Rule 9 interlocutory appeal are limited to the questions that are certified by the
trial court in its order granting permission for the appeal and also certified by the appellate
court in its order granting permission for the appeal.” Shaffer v. Memphis Airport Auth.,
No. W2012-00237-COA-R9-CV, 2013 WL 209309, at *3 (Tenn. Ct. App. Jan. 18, 2013)
(citing In re Bridgestone/Firestone, 286 S.W.3d 898, 902 (Tenn. Ct. App. 2008)).
Accordingly, our analysis is limited to the issues that we have certified for review, and we
proceed with our public-duty analysis without analyzing whether the Town’s immunity
was removed under section 29-20-205.3
2. Application of the Public-Duty Doctrine
The first question we must answer in our public-duty analysis is whether there is a
genuine issue of material fact as to whether the Town owed a duty to the public at large
when it contributed to Festival operations. Under Tennessee Rule of Civil Procedure Rule
56.03, the party moving for summary judgment must submit a statement of undisputed
facts “to assist the [c]ourt in ascertaining whether there are any material facts in dispute.”
Tenn. R. Civ. P. 56.03. The statement is a “concise statement of the material facts as to
which the moving party contends there is no genuine issue for trial.” Tenn. R. Civ. P.
56.03. “Each fact shall be set forth in a separate, numbered paragraph[, and e[ach] fact
subdivision (9) shall in any way limit the liability of a third party, direct or indirect, who is
negligent. Further, a person who is injured by the negligence of a third party contractor,
direct or indirect, shall have a cause of action against the contractor.
Tenn. Code Ann. § 29-20-205.
3
We offer no opinion concerning this issue.
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shall be supported by a specific citation to the record.” Tenn. R. Civ. P. 56.03. Relevant
here, in its statement of undisputed facts, the Town alleged:
8. The Town developed the traffic control plan to protect the public that
attended the Festival by closing off the roads to prohibit vehicles from
driving into the street.
9. The Town developed the [traffic-control] plan to protect the public—not
just [Ms.] Duncan or [Mr.] Johnson.
As support for these alleged facts, the Town cited Fire Chief Anthony Carr’s and Police
Chief Neal Burks’ deposition testimonies. Turning to Chief Carr’s deposition, he testified
that the traffic-control plan was in place “to protect the festivalgoers.” Chief Burks testified
that the purpose of blocking off the streets in the traffic-control plan for the Festival was
“[f]or the public safety.” Specifically, Chief Burks testified that blocking the streets was
important to control the traffic to allow for pedestrians to safely walk in the street and to
prevent cars from driving where pedestrians walked.
As the party opposing the motion for summary judgment, Appellees were required
to submit a “response to each fact set forth by the movant either (i) agreeing that the fact
is undisputed, (ii) agreeing that the fact is undisputed for the purposes of ruling on the
motion for summary judgment only, or (iii) demonstrating that the fact is disputed.” Tenn.
R. Civ. P. 56.03. If Appellees disputed any fact, they were required to support their dispute
with specific citations to the record. Tenn. R. Civ. P. 56.03. In their response to the Town’s
statement of undisputed facts, Appellees admitted “that a traffic control plan was developed
to attempt to prohibit vehicles from driving into the street.” However, Appellees disputed
“that the traffic control plan was to protect the public at large.” As support for this
contention, Appellees cited the same portion of Chief Carr’s deposition testimony that the
Town cited, i.e., that the traffic-control plan was in place “to protect the festivalgoers.”
Because the parties cited the same line of testimony, there is no factual dispute that the
Town created and implemented the traffic-control plan to protect the people who attended
the Festival. The dispute arises in the parties’ interpretations of the term “festivalgoers.”
Appellees argue that the “festivalgoers” were a subgroup of people and distinctly
separate from the “public at large.” As such, Appellees argue that the public-duty doctrine
does not apply because the Town owed a duty to the festivalgoers only rather than to the
public at large. Appellees’ argument presents a distinction without a difference as
acknowledged by Appellees themselves in their amended complaints. In his amended
complaint, Mr. King pleaded that “[t]he Festival was advertised to the general public as a
fun, family-friendly event.” (Emphasis added). Ms. Johnson also acknowledged the public
nature of the Festival in her amended complaint, to-wit:
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The [F]estival grew out of the creation of an outdoor mural celebrating the
rockabilly roots of music in the local area. Interest developed to celebrate
the rockabilly history of the local area, and a group of like-minded
individuals set out to create and put on an outdoor festival, open to the public,
to promote Selmer’s history and local interest with rockabilly music . . . .”
(Emphasis added). We note the general rule in Tennessee “that factual statements in
pleadings are judicial admissions being conclusive against the pleader in the proceedings
in which they are filed unless they have been amended or withdrawn.” First Tennessee
Bank, N.A. v. Mungan, 779 S.W.2d 798, 801 (Tenn. Ct. App. 1989). Thus, according to
Appellees, the class of people (1) who were invited to the Festival, (2) who could attend
the Festival, and (3) whom the Town undertook to protect in its planning of the Festival,
was the public at large.
Without citation to any law, in their appellate brief,
Appellees assert that just because the event was open to anyone to attend,
this does not translate into the duty of the Town being that of a duty to the
public at large. It is without dispute that the Town and the other Festival
presenters invited attendees to come to this special event, implicitly
promising them a safe event on a public street. [The Town] attempts to argue
that because the event was open to the public the duty was to the public at
large. Under that logic, there would never be an exception to the doctrine for
police officers inasmuch as they are public servants who generally provide
protection to the municipality at large. That is not the purpose of the doctrine.
Contrary to Appellees’ argument, this is precisely the policy behind the public-duty
doctrine. As discussed in further detail below, this Court has explained that,
[i]n Tennessee, it has long been held that a plaintiff must show the existence
of a duty particular to him or her, as distinct from a duty owed to the public
in general.
It is settled law in this state that private citizens, as such, cannot
maintain an action complaining of the wrongful acts of public
officials unless such private citizens aver special interest or a
special injury not common to the public generally.
Ezell, 902 S.W.2d at 397, quoting Bennett v. Stutts, 521 S.W.2d 575, 576
(Tenn. 1975).
As the Tennessee Supreme Court discussed in Ezell, the wide
recognition afforded the doctrine is supported by a number of public policy
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considerations, particularly in the context of law enforcement. Without the
doctrine, police officials could find themselves in the “untenable position of
insuring the personal safety of every member of the public, or facing a civil
suit for damages.” 902 S.W.2d at 398.
Wells, 2005 WL 2007197, at *3-4. As discussed above, there is no dispute that the Town
created and implemented the traffic-control plan to protect the people who attended the
Festival. Given Appellees’ allegations in their amended complaints, the undisputed
summary judgment evidence, and the well-established law on the public-duty doctrine, we
conclude that the festivalgoers and the public at large were one and the same. Thus, the
undisputed evidence shows that the Town owed a duty to the public at large when it
designed and implemented the traffic-control plan. Accordingly, the public-duty doctrine
applied in this case and would provide the Town with immunity from Appellees’
negligence claims absent a special-duty exception, to which we now turn. See Chase 971
S.W.2d at 385.
3. Whether a Special-Duty Exception Existed
The special-duty exception removes immunity under the public-duty doctrine when,
inter alia, a public official affirmatively undertakes to protect a plaintiff and the plaintiff
relies on that undertaking.4 Chase, 971 S.W.2d at 385 (citing Ezell, 902 S.W.2d at 402).
Our current case law makes clear that the special-duty exception does not apply unless a
public employee affirmatively undertakes to protect the plaintiff, specifically. In Chase v.
City of Memphis, the Tennessee Supreme Court explained the precise undertaking required
to remove immunity under the special-duty exception. In that case, the administrator of
Betty Lou Stidham’s estate brought a tort action against the defendant City of Memphis
after Ms. Stidham was mauled to death by her neighbor, Edwin Hill’s, two pit bull dogs.
Chase, 971 S.W.2d at 382. In January 1990, prior to Ms. Stidham’s death, Mr. Hill’s dogs
attacked Ms. Stidham’s dog, resulting in amputation of the dog’s leg. Id. Thereafter, Ms.
Stidham filed a vicious-animal complaint with the animal shelter, a governmental entity
within the City of Memphis. Id. On January 23, 1990, Robert Lee, an animal shelter
employee, conducted a vicious-animal hearing wherein he concluded that the dogs were
“‘dangerous’ because they were capable of inflicting serious injury.” Id. In January 1990,
Mr. Lee issued a letter to Mr. Hill declaring the pit bulls dangerous. Id. Relevant here,
[t]he letter ordered [Mr.] Hill to correct any fencing deficiencies around his
property and ordered [Mr.] Hill to enroll the dogs in a basic obedience
training program within ninety days. The letter indicated that failure to
comply with the order would result in a declaration that the dogs were vicious
4
As noted above, there are two other special exceptions that could remove a governmental entity’s public-
duty immunity. Appellees do not argue that either of these exceptions should apply here to remove the
Town’s immunity under the public-duty doctrine.
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and in immediate seizure of the dogs. A copy of the letter was forwarded to
[Ms.] Stidham. The pit bulls were released to [Mr.] Hill.
Animal [s]helter employees, including [Mr.] Lee, visited [Mr.] Hill’s
residence on two occasions to inspect the fencing surrounding [Mr.] Hill’s
property. During one visit, [Mr.] Lee ordered [Mr.] Hill to keep the back gate
locked. [Mr.] Lee apparently inquired whether [Mr.] Hill had complied with
the obedience school requirement. [Mr.] Hill had not complied but assured
[Mr.] Lee that he would enroll the dogs and notify the [a]nimal [s]helter when
obedience training was complete. [Mr.] Hill, however, never enrolled the
dogs, and the [a]nimal [s]helter neglected to monitor the situation to assure
further compliance. Ms. Stidham was mauled to death by the dogs in June
of 1990.
Id. at 382-83. Relevant here, the Tennessee Supreme Court concluded that Mr. Lee and
the animal shelter “affirmatively undertook to protect [Ms. Stidham]” as evidenced by the
letter issued to decedent “indicating that any fencing deficiencies would be corrected[,] . .
. that the dogs would be enrolled in obedience training[,] . . . [and that] failure to comply
with the [a]nimal [s]helter’s order would result in the animals’ immediate seizure.” Id. at
385. The Court further opined that “Ms. Stidham did not appeal the order and relied upon
the undertaking of [Mr.] Lee and the [s]helter to remedy the situation.” Id. Accordingly,
the Court held that the special-duty exception applied and that the city’s public-duty
immunity was removed under same.5 Id.
Conversely, in Ezell v. Cockrell, the Tennessee Supreme Court concluded that the
special-duty exception did not apply to remove the city’s public-duty immunity. The
relevant facts of Ezell are summarized as follows:
On March 1, 1991, James Hillis and Donna Blankenship were
drinking at the Boondocks’ Saloon in the City of Elkton in Giles County,
Tennessee. At approximately 8:45 p.m., [Ms.] Blankenship left the bar and
entered her automobile in the parking lot of the Boondocks’ Saloon. She was
5
We note that, in their appellate brief, Appellees argue that “the Supreme Court affirmed that the City had
voluntarily undertaken to protect the plaintiff and her neighbors[.]” (Emphasis in original). Although the
trial court in Chase concluded that the City “assumed a special duty to Ms. Stidham ‘to undertake certain
acts which would have protected her and her neighbors from the danger . . . presented by [Mr.] Hill’s pit
bull dogs,” Chase, 971 S.W.2d at 383, the Supreme Court’s holding was not so broad. Indeed, the Court
held that the City “affirmatively undertook to protect the plaintiff.” Id. at 385 (emphasis added). The
Supreme Court also discussed Ms. Stidham’s reliance on the City’s letter. In the Court’s special-duty
exception analysis, there is absolutely no mention of Ms. Stidham’s neighbors or a duty owed to that group
of people. See id. As discussed, infra footnote 5, in their appellate briefing, Appellees combine the special-
duty exception analysis with the GTLA-immunity analysis. It appears that Appellees may have confused
these issues in their discussion of Chase as well.
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approached by Chief William Adams of the Elkton Police Department, who
asked her to step out of the car. When [Ms.] Blankenship stepped out of the
car, Chief Adams concluded that she was too intoxicated to drive. At that
point, [Mr.] Hillis came out of the bar and volunteered to drive [Ms.]
Blankenship home in her car. According to the plaintiff’s complaint, Chief
Adams allowed [Mr.] Hillis to drive away in the car when he knew, or should
have known, that [Mr.] Hillis was also intoxicated.
Approximately one hour later, [Mr.] Hillis, while driving [Ms.]
Blankenship’s black Chevrolet Cavalier on the wrong side of the road with
the headlights off, collided head-on with a pick-up truck on U.S. Highway
31. As a result of the collision, one passenger in the truck, the plaintiff,
Kimberly Ezell, was seriously injured, and another passenger, her husband,
Tarrence Ezell, was killed. [Mr.] Hillis was also killed in the collision.
Ezell, 902 S.W.2d at 396. Ms. Ezell sued the City of Elkton on various theories of
negligence. Id. One theory was that “Chief Adams breached a duty owed to the plaintiff
when he failed to arrest [Mr.] Hillis and [Ms.] Blankenship for driving under the influence
or for public intoxication, and as a consequence of that breach, the plaintiff was injured
and her husband killed.” Id. at 397. Relevant to the issue before us, the Tennessee
Supreme Court concluded that Ms. Ezell’s allegations did not support a special-duty
exception. Id. at 403. Specifically, the Supreme Court reasoned that “[n]either Chief
Adams nor the City of Elkton had, by their actions, affirmatively undertaken to protect”
Ms. Ezell or her husband. Id. The Court explained that “Chief Adams never had any
contact with the plaintiff; thus, the defendants had taken no action which would have
caused the plaintiff to particularly rely upon them for protection.” Id.
We recall Appellees’ argument that “the festivalgoers” were a subgroup of people
and that the Town undertook to protect this subgroup only, rather than the general public.
This Court has rejected such argument before. In Holt v. City of Fayetteville, No. M2014-
02573-COA-R3-CV, 2016 WL 1045537, at *1 (Tenn. Ct. App. Mar. 15, 2016), a police
officer arrested Misty Shelton and placed her in his police car. Thereafter, Ms. Shelton
stole the police car and, while driving at a high rate of speed, collided with the plaintiffs’
vehicle. Id. Relevant here, the plaintiffs argued that the special-duty exception applied
because “by placing [Ms.] Shelton in custody, [the police officer] ‘narrowed down the
scope of his duty of reasonable care from the public at large down to the class of civilians
who were then utilizing roadways’ in the City.” Id. at *5. This Court disagreed and
concluded that “[f]or the special-duty exception to apply, the duty must be particular to the
Plaintiffs, not to a class of individuals of which Plaintiffs happen to be members.” Id.
(emphasis added). We also noted that the plaintiffs in Holt could not show reliance on the
actions of the police officer whom they alleged was negligent. Id.
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With the foregoing law in mind, we turn to Appellees’ allegations. The allegations
in Appellees’ amended complaints concerning the special-duty exception differ, so we
address them separately. In his amended complaint, Mr. King alleged that “[b]y inviting
and in fact encouraging Ms. Duncan to attend the Festival, a special relationship was
established between [the Town] and Ms. Duncan,” and that the Town “undertook to protect
[Ms. Duncan] and she relied on that undertaking to her detriment[.]” However, as noted
supra, Mr. King also alleged that “[t]he Festival was advertised to the general public.”
Thus, taking Mr. King’s allegations as true and in context, the gravamen of his complaint
is that, by inviting and encouraging each member of the public to attend the Festival, the
Town established a special relationship with each one of “the festivalgoers,” i.e., the
general public. Absent from Mr. King’s pleadings are any allegation that the Town owed
a duty specifically to Ms. Duncan. There is nothing in the complaint from which a
reasonable person could infer that that the Town, or its representatives, (1) invited Ms.
Duncan, individually, to attend the Festival, or (2) undertook to protect Ms. Duncan,
specifically, when she visited the Festival. As such, there can be no inference that Ms.
Duncan relied on any protections that were specific to her.
Even assuming, arguendo, that Mr. King pleaded facts sufficient to allege that a
public official from the Town undertook to protect Ms. Duncan, specifically, in order to
survive summary judgment, Mr. King would still have the burden to set forth specific facts,
based in evidence, showing such an undertaking. Rye, 477 S.W.3d at 265. In this regard,
the instant case differs from the situation in Chase where the Court concluded that the
animal shelter and Mr. Lee undertook to protect the decedent. Specifically, the Chase
Court concluded that the letter Mr. Lee issued to decedent constituted an affirmative
undertaking to protect her because it “indicat[ed] that any fencing deficiencies would be
corrected[,] . . . that the dogs would be enrolled in obedience training[,] . . . [and that]
failure to comply with the [a]nimal [s]helter’s order would result in the animals’ immediate
seizure.” Chase, 971 S.W.2d at 385. Here, there is no such evidence to show that the
Town, or the Town’s representative, undertook to protect Ms. Duncan, specifically, when
she attended the Festival, and/or that Ms. Duncan relied on that undertaking for her safety.
Turning to Ms. Johnson’s amended complaint, it wholly failed to allege that either
a public official from the Town or the Town itself undertook to protect Mr. Johnson,
specifically. Rather, she alleged, inter alia, that the Town: (1) “had a duty to maintain
public . . . safety”; (2) had a “non-delegable operational duty to provide for the public safety
of attendees at the 2016 [Festival]”; and (3) “failed to take reasonable precautions to protect
the safety of attendees.” On review of Ms. Johnson’s amended complaint, she simply
alleged that the Town owed a duty to “the festivalgoers,” i.e., the general public. As such,
Ms. Johnson failed to allege any facts from which one could infer that the Town undertook
to protect Mr. Johnson, specifically, and that Mr. Johnson relied on that undertaking for his
safety when he attended the Festival. As discussed supra, in order to survive summary
judgment, Ms. Johnson had the burden of setting forth specific facts, based in evidence,
showing that the Town or its representative undertook to protect Mr. Johnson and that he
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relied on that undertaking for his safety. Rye, 477 S.W.3d at 265. Ms. Johnson has failed
to provide any such evidence. Consequently, she has not met her burden to survive
summary judgment.
Although Appellees argue that the Town established a special relationship with Ms.
Duncan and Mr. Johnson, their pleadings and the summary judgment evidence demonstrate
otherwise. As noted above, “[t]he special duty exception applies where ‘a ‘special
relationship’ exists between the plaintiff and the public employee, which gives rise to a
‘special duty’ that is more particular than the duty owed by the employee to the public at
large.” Wells, 2005 WL 2007197, at *4 (quoting Ezell, 902 S.W.2d at 401). Similar to the
plaintiff in Ezell, Appellees failed to allege that the Town or the Town’s representative had
“by their actions, affirmatively undertaken to protect” either Ms. Duncan or Mr. Johnson,
specifically, as opposed to the protection undertaken for the public at large. See Ezell, 902
S.W.2d at 403; see also Kimble v. Dyer Cnty. Tennessee, No. W2019-02042-COA-R3-
CV, 2020 WL 7389381, at *6 (Tenn. Ct. App. Dec. 16, 2020) (concluding that there were
no facts alleged in the complaint from which one could infer that a deputy undertook to
protect the plaintiff or that the plaintiff relied on anything the deputy said or did). Indeed,
Appellees failed to set forth any specific facts in either their amended complaints or at the
summary-judgment stage, alleging that, for example, Chief Burks, Chief Carr, or any other
representative from the Town had any direct contact with Ms. Duncan or Mr. Johnson
much less undertook to protect them. Rather, as indicated by Chief Burks and Chief Carr,
in their respective deposition testimonies, the traffic-control plan was developed to protect
the festivalgoers, i.e., the public at large, and for general public safety, and was not
implemented specifically for Ms. Duncan’s or Mr. Johnson’s safety. Accordingly, we
conclude that no special-duty exception existed to remove the immunity provided to the
Town under the public-duty doctrine. Thus, we conclude that the trial court erred when it
denied the Town’s motion for summary judgment as to Appellees’ negligence claims.6
C. Appellees’ Joint-Venture Claims Against the Town
The next issue for our review is whether the Town is immune under the GTLA from
6
For completeness, we note the trial court’s and Appellees’ reliance on Anderson v. City of Chattanooga,
978 S.W.2d 105 (Tenn. Ct. App. 1998) to show that a special-duty exception applied here. Importantly,
and as the Town notes in its reply brief, the public-duty doctrine was not at issue in Anderson. Rather, the
question was whether a governmental entity was immune from liability under the GTLA. Id. at 108. On
our review, it appears that the trial court conflated the analysis for immunity under the GTLA with the
analysis for immunity under the public-duty doctrine and the special-duty exception, and that Appellees
have improperly combined these analyses in their appellate briefing. Summarily, in determining whether
a governmental entity is immune under the GTLA, courts engage in a discretionary/planning versus
operational analysis. See generally Chase, 971 S.W.2d at 384; Anderson, 978 S.W.2d. at 108. Such
analysis would have been pertinent in Appellees’ briefing had the issue before this Court been whether the
Town was immune from Appellees’ negligence claims under the GTLA. However, as noted, supra at
III(B)(1), such issue is not before this Court. Accordingly, Appellees’ discussion of operational acts and
their reliance on the case law pertaining to same is misplaced.
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Appellees’ joint-venture claims.7 Appellees allege that the Town formed a joint venture
with the other Festival defendants when it participated in the planning and operation of the
Festival.8 As we understand it, Appellees’ argument is that their joint venture claims are
separate contract claims that do not fall under the GTLA, and that, because our Legislature
has allowed joint-venture claims against municipalities such as the Town,9 Appellees’
joint-venture claims should be allowed to proceed to trial.
As discussed, supra at III(A), a governmental entity’s sovereign immunity is waived
only when the Legislature authorizes such waiver. See Lawson, 661 S.W.3d at 59.
Accordingly, we must determine whether the Legislature has authorized the removal of a
governmental entity’s immunity under the facts alleged by Appellees. Turning to the
amended complaints, Appellees pleaded identical joint-venture claims, to-wit:
Defendants individually and collectively combined their efforts, property,
money, skill and knowledge, among other assets, to create and carry out the
7
This Court has explained that
“[a] joint venture is an association of persons with intent, by way of
contract, express or implied, to engage in and carry out a single business
adventure for joint profit, for which purpose they combine their efforts,
property, money, skill, and knowledge, but without creating a partnership
in the legal or technical sense of the term, or a corporation, and they agree
that there shall be a community of interest among them as to the purpose
of the understanding, and that each coadventurer shall stand in the relation
of principal, as well as agent, as to each of the other coadventurers, with
an equal right of control of the means employed to carry out the common
purpose of the adventure.”
Each of the several joint venturers has the power to bind the others and to subject them to
liability to third persons in matters which are strictly within the scope of the joint enterprise.
46 Am. Jur. 2d Joint Ventures [§] 57 (1969).
Robertson v. Lyons, 553 S.W.2d 754, 757 (Tenn. Ct. App. 1977) (quoting Spencer Kellogg & Sons, Inc.
v. Lobban, 315 S.W.2d 514, 520 (Tenn. 1958)).
8
We note that the identity of the other Festival defendants involved in the alleged joint venture vary in
Appellees’ amended complaints. Under the “Causes of Action Against All Festival Defendants” section in
Mr. King’s amended complaint, he alleged that the Town engaged in a joint venture with the following
defendants: (1) McNairy County, Tennessee; (2) Arts in McNairy County; (3) McNairy County Chamber
of Commerce; (4) McNairy County Economic Development Commission, Inc.; (5) Rockabilly Highway
Revival Festival; and (6) Rockabilly Highway Revival Festival and Car Show. However, under the “Joint
Venture Liability” portion of his amended complaint, Mr. King alleged that the Town formed a joint venture
with McNairy Chamber of Commerce and Arts in McNairy only. In her amended complaint, Ms. Johnson
alleged that the Town formed a joint venture with McNairy County Chamber of Commerce and Arts in
McNairy only.
9
For reasons discussed, infra, we need not discuss the law surrounding joint-ventures and municipalities.
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2016 Rockabilly Highway Revival Festival for their joint profit and/or
benefit.
***
Defendants engaged in such actions and omissions concerning the planning
and execution of the 2016 Rockabilly Highway Revival Festival to create
unreasonable risk of harm to festival attendees, including Plaintiff’s
decedent Michael L. Johnson, such that Defendants’ conduct was negligent,
grossly negligent, reckless, and/or wanton.
Defendants’ conduct was the direct and/or proximate cause of the severe
injuries, harms, losses and/or wrongful death of Michael L. Johnson.
As a direct and proximate cause of the negligence of Defendants,
Plaintiff[’s] decedent, Michael L. Johnson, suffered catastrophic pain,
anguish, injury, and loss of life, in all its forms, in violation of Tennessee
law.10
(Emphases added). As the foregoing pleadings show, Appellees did not allege that the
Town or any other defendant breached an alleged joint-venture, i.e., Appellees have not
alleged a contract claim. Rather, the above allegations show that Appellees seek to
establish a joint-venture between the Town and the other Festival defendants to hold the
Town liable for the alleged negligence of the other Festival defendants.
Appellees’ requested damages underscore that Appellees have simply alleged
another negligence claim. In his amended complaint, Mr. King pleaded:
X. DAMAGES
117. All of the damages alleged herein were foreseeable consequences of
the negligent and wrongful acts of each of the named Defendants.
118. Plaintiff is entitled to recover for the pecuniary value of his daughter’s
life, and seeks a recovery for his daughter’s pain and suffering; emotional
pain, suffering and distress; loss of enjoyment of life; loss of earnings and
earning capacity; funeral expenses; loss of consortium; and all other
damages directly and proximately caused by Defendants’ negligence
and/or reckless acts.
10
Mr. King’s allegations are identical to the above allegations with the exception that his pleading named
Ms. Duncan.
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119. The Defendants’ acts of negligence and wrongful conduct were the
proximate cause, legal cause and actual cause of the injuries and damages
described herein.
WHEREFORE, PREMISES CONSIDERED, Plaintiff prays:
a. That each Defendant named herein be liable to Plaintiff for
$2,500,000.00. With regard to any municipal Defendant, if
damages are limited by the Tennessee Governmental Tort
Liability Act, Plaintiff seeks the maximum amount permitted
by law for each such municipality, but no less than
$300,000.00.
Similarly, in her amended complaint, Ms. Johnson pleaded:
VII. WRONGFUL DEATH OF MICHAEL L. JOHNSON
***
77. Plaintiff brings suit for the wrongful death of Michael L. Johnson,
asserting damages for the catastrophic pain, anguish, injury, and pecuniary
value of his life, as well as any other losses directly and proximately
resulting from Defendants’ negligent, reckless and wanton actions and
omissions in violation of Tennessee law.
VIII. PUNITIVE DAMAGES
78. Plaintiff repeats and alleges each and every allegation in the paragraphs
above as though fully set forth herein.
79. Defendants, individually and/or severally, acted with willful, wanton,
reckless or intentional conduct, either in acting, or failing to act, as stated
in this Complaint, such that their conduct is subject to punitive damages in
an amount to be proven at trial.
(Emphases added). At oral argument before this Court, counsel for Appellees admitted
that the above damages do not fall under a contract claim but sound in tort.
Although Appellees have endeavored to circumvent the GTLA by arguing that their
joint-venture claims are contract claims, as demonstrated supra, the amended complaints
show that Appellees have simply pleaded additional negligence claims. Thus, we look to
the GTLA to determine whether the Legislature has waived the Town’s sovereign
immunity in this particular circumstance. It is undisputed that the Festival defendants are
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independent legal entities, i.e., (1) McNairy County, Tennessee; (2) Arts in McNairy
County; (3) McNairy County Chamber of Commerce; (4) McNairy County Economic
Development Commission, Inc.; (5) Rockabilly Highway Revival Festival; and (6)
Rockabilly Highway Revival Festival and Car Show. Appellees cannot hold the Town
liable for the alleged negligence of another legal entity. As discussed above, section 29-
20-205 removes governmental immunity “for injury proximately caused by a negligent act
or omission of any employee within the scope of his employment[.]” Tenn. Code Ann. §
29-20-205. While section 29-20-205 makes clear that a governmental entity may be liable
for its employee’s negligent act or omission,11 the statute does not extend such liability to
a separate legal entity’s negligent act or omission. When applying any statute, a court’s
duty is to ascertain and fully effectuate the “legislative intent [of the statute], taking care
not to broaden [it] beyond its intended scope . . . .” Womack v. Corr. Corp. of Am., 448
S.W.3d 362, 366 (Tenn. 2014) (citing Shore v. Maple Lane Farms, LLC, 411 S.W.3d 405,
420 (Tenn. 2013); Carter v. Bell, 279 S.W.3d 560, 564 (Tenn. 2009)). The Tennessee
Supreme Court has explained that “[o]ur analysis naturally begins with the words used in
the statute,” Womack, 448 S.W.3d at 366 (citing Shore, 411 S.W.3d at 420), and we must
interpret those words under their “natural and ordinary meaning in the context in which
they appear and in light of the statute’s general purpose.” Id. (quoting Mills v. Fulmarque,
Inc., 360 S.W.3d 362, 368 (Tenn. 2012)). We also note that, when immunity is removed
under the GTLA, “any claim for damages must be brought in strict compliance with the
terms of [the GTLA].” Tenn. Code Ann. § 29-20-201(c). Giving the words in the statute
their “natural and ordinary meaning,” there is simply no language in section 29-20-205 to
show that the Legislature intended to remove a governmental entity’s immunity so it could
be held liable for a separate legal entity’s negligence. Because the GTLA does not remove
the Town’s immunity under these particular facts, the Town’s sovereign immunity remains,
see Tenn. Code Ann. § 29-20-201(a), and it cannot be held liable for the alleged negligent
acts or omissions of the other Festival defendants. In short, there is no genuine issue of
material fact as to Appellees’ “joint venture” claim, and the Town is entitled to judgment
as a matter of law.” Tenn. R. Civ. P. 56.04. Accordingly, we conclude that the trial court
erred when it denied the Town’s motion for summary judgment as to Appellees’ “joint
venture” claims.
11
The GTLA defines “Employee” as
any official (whether elected or appointed), officer, employee or servant, or any member
of any board, agency, or commission (whether compensated or not), or any officer,
employee or servant thereof, of a governmental entity, including the sheriff and the sheriff's
employees and, further including regular members of voluntary or auxiliary firefighting,
police, or emergency assistance organizations;
Tenn. Code Ann. § 29-20-102(2).
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IV. Conclusion
For the foregoing reasons, we reverse the trial court’s denial of the Town’s motion
for summary judgment as to Appellees’ negligence and joint-venture claims. The case is
remanded for such further proceedings as are necessary and consistent with this opinion.
Costs of the appeal are assessed to the Appellees, Brittany Johnson, and Larry King, for all
of which execution may issue if necessary.
s/ Kenny Armstrong
KENNY ARMSTRONG, JUDGE
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