Jones v. Tennessee Valley Authority

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

GERALD PAULK, et al.,

Plaintiffs,

v. Case No. 5:22-cv-15-CLM

TENNESSEE VALLEY AUTH.,

Defendant.

JOSEPH MILES,

Plaintiff,

v. Case No. 5:22-cv-105-CLM

TENNESSEE VALLEY AUTH.,

Defendant.

TOMMY JONES, et al.,

Plaintiffs,

v. Case No. 5:22-cv-114-CLM

TENNESSEE VALLEY AUTH.,

Defendant.

MEMORANDUM OPINION

The Tennessee Valley Authority (“TVA”) moves to dismiss the operative

complaints in three cases: (1) Paulk, et al. v. TVA, Case No. 5:22-cv-15-CLM;

(2) Miles v. TVA, Case No. 5:22-cv-105-CLM; and (3) Jones, et al. v. TVA,

Case No. 5:22-cv-114-CLM. The three cases are related, but not consolidated.

Because the motions and the briefs are identical (except for citations to the

ECF dockets), the court resolves the motions together in one opinion.

The parties have also filed the following: (1) Plaintiffs’ Motion to

Consolidate Cases; (2) TVA’s Motion to Stay All Discovery and Related

Proceedings; and (3) Plaintiffs’ Motion for a Case Management Order. Since

challenges to the legal sufficiency of a claim “should . . . be resolved before

discovery begins,” Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1366–69

(11th Cir. 1997), this court will resolve TVA’s motion to dismiss before ruling

on the other pending motions. Throughout this opinion, the court’s citations

refer to the ECF docket in Paulk, et al. v. TVA, Case No. 5:22-cv-15-CLM.

I. BACKGROUND

These actions arise out of a fire that occurred on Dock B of the Jackson

County Park and Marina.

A. The Dock B Fire

At about 12:35am on January 27, 2020, a fire broke out aboard the

Dixie Delight, a 43-foot liveaboard houseboat owned by Tim Parker. The Dixie

Delight was berthed in Dock B, slip 36 at the Jackson County Park and

Marina. The fire engulfed the Dixie Delight, and then spread to neighboring

vessels and to Dock B. Dock B was a wood-framed covered dock with a metal

roof, consisting of two uncovered and 36 covered slips. The Dixie Delight was

docked in the slip closest to the shore, so when the fire spread to the dock, it

locked occupants further from the shore from using the dock to make it to

shore. The fire resulted in deaths, personal injuries, and property losses.

The Dixie Delight was connected to shore power at the time of the fire.

The fire originated in the bulkhead (inner walls within the hull of the ship)

between the electrical panel of the Dixie Delight and its storage closet. Each

of the 36 slips on Dock B had a breaker box and a meter box to deliver and

meter electricity. Jackson County performed maintenance work on the slip 36

breaker box less than two weeks before the fire.

Plaintiffs include (1) owners of vessels which were regularly moored

and berthed in leased slips at Dock B, (2) overnight guests of such boat-owner

lessees, and (3) the legal representatives of such guests. Plaintiffs seek to

recover monetary damages for deaths, personal injuries, and property losses

that resulted from the fire.

TVA is the defendant. TVA is a corporate agency and instrumentality

of the United States, created by the TVA Act of 1933, as amended, 16 U.S.C.

§§ 831-831ee (“TVA Act”). The TVA is statutorily charged with, among other

things, “‘[t]he unified development and regulation of the Tennessee River

system,’ including the Guntersville Reservoir, as agent for the United

States.” TVA v. Walcott, 611 F. Supp. 3d 1328, 1333 (N.D. Ala. Feb. 27, 2020)

(citing 16 U.S.C. § 831y-1).

Jackson County was the designer, builder, owner, operator, maintainer

of Dock B, and lessor of the Dock B boat slips. Accordingly, Jackson County

owed various legal duties to the lessees of Dock B slips and their guests (i.e.,

Plaintiffs). Plaintiffs have filed actions against Jackson County and others in

state court. The TVA is not a party to those state court actions.

Dock B was built on land under an easement granted by the United

States in a 1963 Indenture, and construction was authorized by a 1999

permit issued by TVA under Section 26a of the TVA Act.

Plaintiffs allege that TVA is legally responsible to them because TVA

was the owner of the dock (which TVA disputes) and/or the underlying real

property, and therefore owed a tort duty to Plaintiffs. Alternatively, Plaintiffs

allege that TVA is liable because TVA made inspections of Dock B, and

voluntarily assumed a tort duty to Plaintiffs which it did not otherwise have.

B. Pertinent Property Rights

Guntersville Reservoir is a large impoundment on the Tennessee River

in northeast Alabama. In connection with the impoundment, TVA acquired

through purchase and condemnation certain real property outside the

original river channel, as well as shoreline property. All property acquisitions

were in the name of the United States.

In 1963, TVA deeded real property from the United States to Jackson

County via an Indenture. (See Doc. 27-1; see also Doc. 13-12). Jackson County

became the owner in fee of a 77-acre tract. The park portion of Jackson

County Park and Marina is located almost entirely on that 77-acre tract.

The Indenture also conveyed an easement to Jackson County for

ingress and egress across a defined easement area, and the right to construct

and maintain piers, docks, and similar water-use facilities on the easement

area and in the waters on which the easement area immediately abuts.

The entire conveyance was subject to the conditions that all property

and property rights transferred would be (1) used solely for public

recreational purposes, (2) open to all members of the public without

distinction or discrimination, and (3) “operated and developed in accordance

with generally accepted standards” for public recreational purposes. Upon

breach of any of these conditions, the United States retained the right to

reenter and take possession of any or all property and rights conveyed—as if

the conveyance had never been made. The Indenture also reserved to the

United States a right to enter the fee and easement area to carry out any

functions, activities, or programs provided for by the TVA Act. It also

reserved the right for the United States to enter the fee and easement area,

and all buildings, structures, improvements, and facilities located on any part

of the land to inspect the land, buildings, structures, improvements, and

facilities and the operations of the grantee. TVA does not dispute that its

representatives entered Jackson County’s property several times over the

years for inspecting.

The Indenture specified that the easement right of Jackson County to

construct and maintain piers, docks, and similar water-use facilities was

expressly subject to a condition that any exercise of the right would be “solely

at locations and in accordance with plans approved in advance and in writing

by TVA.” It also specified that the Indenture in no way constituted any

approval to construct any structure or facility within the scope of Section 26a

of the TVA Act, and that no such structure “shall be constructed” without 26a

approval.

The Indenture also specified that TVA was liable for personal injuries,

property damage, or loss of life or property caused by TVA’s sole negligence.

C. TVA’s 26a Approvals of Dock B

Dock B was built in or around 1999. The construction project had to be

approved by the TVA through the “Section 26a permitting process.”

Section 26a of the TVA Act, as amended, provides that:

no dam, appurtenant works, or other obstruction,

affecting navigation, flood control, or public lands or

reservations shall be constructed, and thereafter

operated or maintained across, along, or in [the

Tennessee River] or any of its tributaries until plans

for such construction, operation, or maintenance shall

have been submitted to and approved by the [TVA]

Board; and the construction, commencement of

construction, operation, or maintenance of such

structures without such approval is prohibited.

16 U.S.C. § 831y-1. TVA’s implementing regulations at 18 C.F.R. § 1304.204

provide a process for persons seeking approval for the construction of

structures covered by Section 26a. The regulations specifically apply to boat

docks. See 18 C.F.R. §1304.204.

The regulations provide that any “power lines, poles, electrical panels,

and wiring” must be installed “[i]n a way that would not be hazardous to the

public” and “[i]n compliance with all State and local electrical codes . . .” 18

C.F.R. § 1304.301(a). The regulations also state that “TVA’s issuance of a

[26a] permit does not mean that TVA has determined the facilities are safe

for any purpose or that TVA has any duty to make such a determination.” Id.

at § 1304.301(c). The regulations also provide that if any approved structure

“is not kept in a good state of repair and in good, safe, and substantial

condition” and the structure owner fails to remedy the situation after notice

from TVA, then TVA may cancel the permit. 18 C.F.R. § 1304.406.

In response to applications from Jackson County, TVA first permitted

Dock B in 1999, and then re-permitted it with superseding 26a permits in

2010 and 2017. Sketches of Dock B were attached to the 1999 and 2010 26a

permits. (Doc. 13-15, p. 20; Doc. 13-16, p. 39). Those sketches contain only the

basic structural layout of Dock B, and show nothing related to structural

details, electrical service, portable water, sewage, fire extinguishers, life

rings, or other things that might be located on Dock B.

All 26a permits for Dock B contained these caveats with respect to the

scope of TVA’s approval:

This approval shall not be construed to be a

substitute for the requirements of any federal, state,

or local statute, regulation, ordinance, or code,

including but not limited to, applicable building

codes, now in effect or hereafter enacted.

* * *

[Approval] merely constitutes a finding that the

facility, if constructed at the location specified in the

plans submitted and in accordance with said plans,

would not at this time constitute an obstruction

unduly affecting navigation, flood control, or public

lands or reservations.

(Doc 13-15, p. 16, 18; Doc. 13-16, p. 16, 18; Doc. 13-16, p. 59, 61).

The permits also contained the following provision:

In issuing this Approval of Plans, TVA assumes no

liability and undertakes no obligation or duty (in tort,

contract, strict liability or otherwise) to the applicant

or to any third party for any damages to property

(real or personal) or personal injuries (including

death) arising out of or in any way connected with

applicant’s construction, operation, or maintenance of

the facility which is the subject of this Approval of

Plans.

(Doc. 13-15, p. 16, Doc. 13-16, pp. 16, 59).

II. LEGAL STANDARD

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead

enough facts to state a claim that is “plausible on its face.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (citation omitted). A claim is plausible on its face

when a plaintiff “pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.”

Id. When considering the motion, the court accepts all factual allegations of

the complaint as true and construes them in the light most favorable to the

plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008) (citation

omitted). This tenet, of course, is “inapplicable to legal conclusions.” Iqbal,

556 U.S. at 678. “While legal conclusions can provide the framework of a

complaint, they must be supported by factual allegations.” Id. at 679. Courts

should limit their “consideration to the well-pleaded factual allegations,

documents central to or referenced in the complaint, and matters judicially

noticed.” La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir.

2004). The court is also not required to “‘accept as true allegations that

contradict matters properly subject to judicial notice.’” Carol Ridge Ministries

Media, Inc. v. Amazon.com, Inc., 406 F. Supp. 3d 1258, 1272 (M.D. Ala. 2019)

(quoting Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002)), aff’d, 6 F.4th

1247 (11th Cir. 2021).

III. DISCUSSION

The First Amended Complaint contains five counts: (1) Negligence; (2)

Wantonness; (3) General Maritime Law Negligence Personal Injury Survival

Action; (4) Negligence Resulting in Personal Injury and Wrongful Death

Under General Maritime Law; and (5) Negligence Resulting in Property

Damage Under General Maritime Law. (See Doc. 26).

TVA asks this court to dismiss Plaintiffs’ complaints for four reasons:

(1) TVA did not own Dock B; (2) Plaintiffs are bound by a release in the 1963

Indenture which releases TVA from tort actions resulting from the exercise of

TVA’s inspection and enforcement rights; (3) TVA had no superiority of

knowledge, relative to Jackson County, and (4) Plaintiffs’ generalized

allegations cannot establish Good Samaritan liability. (See Doc. 28, p. 8). The

court addresses each argument in turn.

A. Dock B Ownership

TVA first argues that Plaintiffs cannot hold TVA liable under the

theory that TVA owned Dock B and thus owed some duty to Plaintiffs. (Doc.

28, pp. 18–20). Plaintiffs respond that their allegations hinge not on TVA’s

ownership of the dock but on the fact that “TVA controlled virtually every

aspect of the docks.” (Doc. 32, p. 19).

The court agrees with Plaintiffs that it needn’t resolve whether TVA

owns Dock B or the submerged land underneath it at the motion-to-dismiss

stage. The operative complaint alleges that:

35. At all pertinent times, it is believed Dock B was

owned, managed, and/or controlled by Defendant,

the Tennessee Valley Authority.

(Doc. 26, p. 10) (emphasis added). And other allegations in the complaint

support Plaintiffs’ assertion that TVA’s control over Dock B gave rise to a

legal duty. For example, paragraph 38 of the operative complaint alleges that

TVA had safety agreements with Park operators, such as Jackson County,

and that TVA would achieve these safety goals by inspecting the Park every

year. (Id., p. 11). According to Plaintiffs, TVA performed these annual

inspections to assess whether Jackson County was meeting industry safety

standards. (Id., pp. 11–12). Plaintiffs say that because TVA voluntarily

agreed to inspect Dock B, monitor the dock for hazards, and correct any

potential flaws, TVA assumed a duty to perform these inspections in a

competent manner. (Id., pp. 13–14). Plus, Plaintiffs assert that TVA

undertook the Marina’s duty to provide Plaintiffs a safe premises and warn

them of hazards by causing the Marina to rely on findings from TVA

inspections to reduce safety risks. (Id., pp. 15–16).

Pleading control is enough because the duty to prevent damages from a

property’s unsafe conditions springs from “possession” or “control” over the

property. See Tisdale v. United States, 62 F.3d 1367, 1372 (11th Cir. 1995).

Other courts have determined that “[c]ontrol over the easement and not

ownership of the property determines who is liable for injuries resulting from

a failure to maintain and repair the easement.” Kesslering v. Chesapeake &

O. Ry. Co., 437 F. Supp. 267, 269 (E.D. Mich. 1977) (quotations omitted).

Based on the factual allegations discussed above, the court finds that

Plaintiffs have adequately alleged that TVA exercised enough control over

Dock B to be held liable for Plaintiffs’ injuries.

The court recognizes that some of the factual allegations in Plaintiffs’

complaint conflict with the theory that TVA owed Plaintiffs a duty because it

managed or controlled Dock B. But plaintiffs are allowed to plead in the

alternative in federal court. See Fed. R. Civ. P. 8(d)(2). And though discovery

may show that TVA neither owns nor controls Dock B, Plaintiffs have alleged

enough facts that support a finding of control to survive TVA’s motion to

dismiss. So the court will not dismiss the complaint on the ground that TVA

did not own Dock B.

B. 1963 Indenture

TVA’s next argument is that the actions are precluded by an

exculpatory release. (Doc. 28, pp. 20–24). The 1963 Indenture that conveyed

property rights to Jackson County contained the following clause:

6. As part of the consideration for this indenture,

Grantee releases Grantor, [and] its . . . agents . . . of

and from, and agrees that they shall not incur, any

liability for injury to or death to any person or

persons or for any damage to or loss of property . . .

as a result of the exercise or enforcement of any of

the other rights or interests reserved, excepted or

otherwise retained under this indenture, except

liability for personal injuries, property damage, or

loss of life or property caused by the sole negligence

of the Grantor.

(Doc. 13-12, p. 8).

TVA argues that Plaintiffs are bound by this release, and recovery is

precluded by that provision. TVA says that under the plain language of the

release clause, Jackson County as grantee released TVA from liability for tort

damages resulting from TVA’s exercise of its inspection and enforcement

activities on the fee and easement area except for damages caused by the sole

negligence of TVA. And here, there is no allegation that Plaintiffs’ claimed

damages were caused by the sole negligence of TVA. TVA points out that in

their state court actions, Plaintiffs specifically claim that their damages were

caused by the negligence of Jackson County and other entities. And logic

dictates that if TVA could be construed as negligent for failing to identify and

warn of the various alleged deficiencies in Jackson County’s construction and

operation of Dock B, then Jackson County would be just as negligent, and

those deficiencies would not exist because of the sole negligence of TVA.

The court rejects this argument for two reasons.

1. Indenture Provision is Indemnification Agreement

First, at least as to Plaintiffs’ claims, the court construes Indenture

Section 6 as an indemnification agreement and not a release. TVA agrees

that the part of Section 6 that says Jackson County “agrees that [TVA] shall

not incur, any liability for injury to or death to any person or persons or for

any damages to or loss of property” is an indemnification agreement. (Doc.

51, pp. 5–6). But TVA says that Section 6 also includes a release because it

also says Jackson County “releases [TVA] . . . of and from . . . any liability for

injury to or death to any person or persons or for any damages to or loss of

property.” (Doc. 13-12, p. 8) (emphasis added).

It would be redundant for Jackson County to agree to indemnify TVA if

Section 6 released TVA from liability to any person for injury, death, or

property damage. And as Plaintiffs point out, Section 6 says only that the

Grantee (i.e., Jackson County) releases TVA from liability. So while the

release language in Section 6 binds Jackson County, it, by its plain language,

doesn’t bind the boat-owners and their guests who are plaintiffs here. As a

result, the most commonsense interpretation of Section 6 is that in

consideration for the real property deeded to Jackson County in 1963 Jackson

County agreed to: (a) indemnify TVA from liability for a third-party’s

personal injuries and property damage not caused by TVA’s sole negligence,

and (b) release TVA from liability to Jackson County for those injuries.

Jackson County did not (in 1963) release any claims that citizen Plaintiffs

may have against TVA for actions that happened in 2020.

TVA’s counterargument to this interpretation of Section 6 is that

Plaintiffs’ entry onto Dock B was under the County’s title, so Plaintiffs’ rights

against TVA cannot be greater than Jackson’s County’s rights against TVA.

(Doc. 28, pp. 22–24). In support of this argument, TVA cites two cases from

the Alabama Supreme Court. First, TVA cites Republic Steel Corp. v. Payne,

132 So. 2d 581 (Ala. 1961), in which the court held that a release in a

conveyance bound lessees of the real property owner. That conveyance

released Republic from liability “to the Purchasers or Purchasers’ heirs,

assigns or successors in interest for damages on account of any injuries or

damages to land . . . or to any owners, occupants or other persons in or upon

said land.” Id. at 583. The Purchasers further agreed to “for themselves and

for those who may hold title to any of said real estate under or through them

covenant not to sue for any of said injuries or damages.” Id. Based on this

release language, the court held that the Purchasers and their lessees could

not sue Republic for future damages resulting from fumes and gases from

Republic’s mining operations. Id.

Unlike the release in Republic Steel Corp., which applied to anyone

who held title to any of the real estate under or through the Purchasers,

Section 6 binds only Jackson County “its successors and assigns.” (Doc. 13-12,

p. 9). And TVA’s counsel agreed at the hearing on the motion to dismiss that

Plaintiffs aren’t Jackson County, its successors, and assigns. (Doc. 49, p. 18).

Plus, though the complaint characterizes the boat-owners as Marina tenants,

nothing in the Indenture suggests that its terms would apply to those who

docked their boats at Dock B. So the court finds that Republic Steel Corp.

doesn’t establish that Section 6 released TVA from liability for claims

brought by the boat-owner Plaintiffs.

The second case TVA cites is Uhlig v. Moore, 93 So. 2d 490 (Ala. 1957).

In that case, the guest of a renter at a rooming house sued both the lessee

and owner of the house after falling from an allegedly unsafe flight of stairs.

Id. at 492. The court affirmed the dismissal of the claims against the owner

because the defect in the stairs was patent and not latent. Id. at 493. In

reaching this determination, the court reasoned that “the guests of a tenant

or subtenant are not members of the general public, but enter the premises

under the tenant’s or subtenant’s title, and can have no better right than that

of the tenants.” Id. at 492. And because landlords are liable to tenants for

only latent defects known to the landlord and concealed from the tenant, the

court held that landlords aren’t liable for patent defects that injure a tenant’s

guest. See id. at 492–93.

Uhlig doesn’t persuade the court that Section 6 released TVA from

liability for Plaintiffs’ claims. First, Uhlig doesn’t concern the interpretation

of the scope of a release in a conveyance, so it has little applicability to this

case. Second, the court has found that Section 6 doesn’t release TVA from

liability for the boat-owner Plaintiffs, so it is consistent with Uhlig to say that

Section 6 also doesn’t bind the boat-owners’ guests.

In short, the court finds that, at most, Section 6 indemnifies TVA from

liability for Plaintiffs’ claims. It doesn’t bar Plaintiffs from bringing their

claims against TVA altogether.

2. Release Doesn’t Apply if Damage is Caused by TVA’s Sole Negligence

Even if Section 6 were an exculpatory release that covered Plaintiffs’

claims, it wouldn’t warrant dismissal of the complaint. Both parties agree

that Section 6 doesn’t apply to “personal injuries, property damage, or loss of

life or property caused by the sole negligence of [TVA].” (Doc. 13-12, p. 8).

And having reviewed Plaintiffs’ complaint, the court finds that a reasonable

interpretation of Plaintiffs’ allegations is that TVA’s sole negligence led to the

Dock B fire.

To be sure, Plaintiffs have sued Jackson County over the Dock B fire in

state court. And some of Plaintiffs’ allegations conflict with the theory that

TVA’s negligence was the sole cause of Plaintiffs’ injuries. For example,

paragraph 41 of the operative complaint alleges that “[b]y voluntarily

undertaking the duty to perform these inspections and failing to adequately

report its findings, TVA is liable for its own conduct. Additionally, and/or

alternatively, TVA is vicariously liable for the failings of Jackson

County.” (Doc. 26, p. 14) (emphasis added). But again, plaintiffs are allowed

to plead in the alternative. See Fed. R. Civ. P. 8(d)(2). And at this motion-to-

dismiss stage, the court must give Plaintiffs the benefit of the doubt. See

Lanfear v. Home Depot, Inc., 679 F.3d 1267, 1275 (11th Cir. 2012). So the

court finds that Plaintiffs have plausibly alleged that TVA’s sole negligence

led to their injuries.

___

For both these reasons, the court determines that Section 6 of the 1963

Indenture doesn’t bar Plaintiffs from bringing their claims.

C. Superior Knowledge

Next, TVA argues that as agent for the owner of the premises

underlying Dock B, TVA violated no duty owed to Plaintiffs because, relative

to Jackson County, there was no superiority of knowledge regarding the

alleged deficiencies in the construction and operation of Dock B. TVA is

referring to the “superior knowledge” doctrine.

The Alabama Supreme Court has explained:

Where a premises owner can reasonably expect that

its contractor knows as much or more than the

premises owner does regarding a dangerous

condition—whether this is so because the danger is

open and obvious to anyone, because the owner has

told the contractor all it knows, or because of the

contractor’s expertise and previous experience on the

premises—the superiority-of-knowledge test is not

met and the premises owner has no further duty to

warn the contractor. By extension, in that

circumstance, the premises owner has no additional,

direct duty to warn the contractor’s employees or any

subcontractors.

S. Ala. Brick Co., Inc. v. Carwie, 214 So. 3d 1168, 1178 (Ala. 2016).

TVA argues that the “superior knowledge” principle applies “a fortiori”

here because the government did not own Dock B itself (it owned only the

underlying land). Plaintiffs argue in response that whether TVA had superior

knowledge can be determined only after discovery.

The court finds that this factual inquiry is better resolved after

discovery.

D. Good Samaritan Liability

The complaints assert that TVA (1) voluntarily undertook a duty to

inspect Dock B for the benefit and safety of lessees and guests using the dock,

and (2) breached that duty to enable Plaintiffs to recover. (See Doc. 26, pp.

13–14). This legal principle is often called the “assumed duty” or “Good

Samaritan” doctrine.

TVA’s final argument for dismissal is that Plaintiffs’ factual allegations

cannot establish that TVA can be held liable under the Good Samaritan

Doctrine. (See Doc. 28, pp. 26–35). Plaintiffs argue in response that the

amended complaints easily plead facts stating a plausible claim for relief, and

that regardless, no ruling should be made on this theory until discovery has

been completed. (See Doc. 32, pp. 26–37).

Both Alabama and maritime law apply the Restatement (Second) of

Torts Section 324A in deciding Good Samaritan cases. See Yanmar Am. Corp.

v. Nichols, 166 So. 3d 70, 84 (Ala. 2014) (“liability for the breach of a duty

voluntarily undertaken is governed by Restatement (Second) of Torts §

324A”); Miss Janel, Inc. v. Elevating Boats, Inc., 725 F. Supp. 1553, 1567

(S.D. Ala. 1989) (“The ‘good samaritan’ rule is applicable in maritime cases,

and is set forth in section 324A of the Second Restatement of Torts”).

The Restatement (Second) of Torts § 324(A) provides:

One who undertakes, gratuitously or for

consideration, to render services to another which he

should recognize as necessary for the protection of a

third person or his things, is subject to liability to the

third person for physical harm resulting from his

failure to exercise reasonable care to protect his

undertaking, if

(a) his failure to exercise reasonable care

increases the risk of such harm, or

(b) he has undertaken to perform a duty

owed by the other to the third person, or

(c) the harm is suffered because of reliance of

the other or the third person upon the

undertaking.

Plaintiffs allege that TVA assumed a periodic inspection undertaking

with respect to Dock B. Courts often assume the initial 324A elements

arguendo (i.e., undertaking and failure to exercise reasonable care in the

undertaking), and proceed to analyze whether the alleged facts establish any

one of 234A’s three other alternative requirements. See Howell v. United

States, 932 F.2d 915, 918 (11th Cir. 1991) (“For purposes of discussion we

assume the existence of all elements of ‘good samaritan’ liability except the

last three alternative requirements and focus our attention on these”). TVA

suggests that the court should assume that the initial elements of 324A are

satisfied and proceed directly to an analysis of whether Plaintiffs have

alleged facts sufficient to establish one of 324A’s three other alternative

requirements (increase in risk, undertaking duty owed by another, or

reliance). (See Doc. 28, p. 28). The court will follow TVA’s suggestion.

1. Alternative (a)

Alternative (a) “applies only to the extent that the alleged negligence of

the defendant exposes the injured person to a greater risk of harm than

existed previously.” Yanmar Am. Corp. v. Nichols, 166 So. 3d 70, 84 (Ala.

2014) (internal quotation marks omitted). “Moreover, the test is not whether

the risk was increased over what it would have been if the defendant had not

been negligent. Rather, a duty is imposed only if the risk is increased over

what it would have been if the defendant had not engaged in the undertaking

at all.” Id. (internal quotation marks and citations omitted). TVA argues that

this alternative is not satisfied here because TVA’s alleged insufficient

performance did not increase the level of risk that already existed on Dock B.

2. Alternative (b)

“The Eleventh Circuit has stated that for liability to exist under

[Section 324A(b)] the duty in question must be completely assumed.”

Smallwood v. United States, 988 F. Supp. 1479, 1482 (S.D. Ga. 1997); see also

Howell, 932 F.2d at 919 (finding 324A(b) inapplicable because “[t]he duties of

the FAA supplement rather than supplant the duties of the airline . . .”). TVA

argues that alternative (b) does not apply here because there is no allegation

that TVA’s alleged undertaking to periodically inspect Dock B was an

undertaking that supplanted (rather than merely supplemented) inspection

duties owed by Jackson County.

3. Alternative (c)

Alternative (c) can only apply if harm was suffered because of reliance

by Jackson County or a Plaintiff upon the undertaking. Plaintiffs allege that

after a TVA inspection, Jackson County “would then take steps to correct

safety issues which were identified by the TVA” (doc. 26, p. 47). But TVA

asserts that this alleged reliance is not the type of reliance required by

alternative (c). Instead, according to TVA, invoking alternative (c) based on

Jackson County’s reliance requires an allegation and showing that because of

TVA’s activities, Jackson County neglected or reduced its own safety program

to the detriment of Plaintiffs. See Tillman v. Travelers Indem. Co., 506 F.2d

917, 921 (5th Cir. 1975) (“Although it was clearly shown that [the premises

owner] consulted with Travelers’ safety representative and complied with his

recommendations for safety improvements, there is no indication . . . that

because of Travelers’ surveys [the premises owner] neglected or reduced its

own safety program. Thus, . . . there was no evidence of the type of reliance

required by § 324A”).

Plaintiffs also allege reliance based on the theory that it was “known by

the public, including Plaintiffs,” that TVA “inspected recreational facilities’

on TVA indentured land and that ‘in reliance thereupon Plaintiffs utilized

Dock B.” (Doc. 26, p. 47). But in Howell, the Eleventh Circuit held that before

324A reliance can attach, plaintiffs “must at least show knowledge of the

specific fact of inspection.” 932 F.2d at 919.

___

Plaintiffs argue generally that the court should allow discovery on this

issue. Plaintiffs explain that “‘[t]he existence of a voluntarily assumed duty

through affirmative conduct is a matter for determination in light of all the

facts and circumstances.’” Chandler v. Hosp. Auth. of Huntsville, 548 So. 2d

1384, 1387 (Ala. 1989) (quoting Parker v. Thyssen Mining Constr., Inc., 428

So. 2d 615 (Ala. 1983)).

The court agrees with Plaintiffs that discovery is needed. Plaintiffs

have alleged enough facts to survive a motion to dismiss.

IV. CONCLUSION

For the reasons explained above, the court will DENY TVA’s motions to

dismiss. (Doc. 27 in Paulk; Doc. 24 in Miles; Doc. 28 in Jones).

The court will GRANT the motion to consolidate (1) Paulk, et al. v.

TVA, Case No. 5:22-cv-15-CLM; (2) Miles v. TVA, Case No. 5:22-cv-105-CLM;

and (8) Jones, et al. v. TVA, Case No. 5:22-cv-114-CLM throughout discovery.

(Doe. 34 in Paulk; Doc. 31 in Miles; Doc. 38 in Jones).

The court will DENY the motion to stay all discovery. (Doc. 35 in

Paulk; Doc. 32 in Miles; Doc. 35 in Jones).

The court will ORDER the parties to file a Rule 26(f) Report on or

before August 25, 2023. The court will rule on the pending motions for a case

management order after reviewing the Rule 26(f) Report.

The court will enter separate orders that carry out this opinion.

Done on July 28, 2023.

Conny’ MAZE

UNITED STATES DISTRICT JUDGE

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