Day on Torts
The Tennessee Court of Appeals has ruled plaintiffs can pursue claims based on recklessness and gross negligence under the GTLA.
In Lawson v. Hawkins County, TN, No. E2020-01529-COA-R3-CV (Tenn. Ct. App. July 14, 2021), plaintiffs filed suit based on the death of decedent in a fatal one-car accident. According to the complaint, decedent was killed when he was “rounding a switchback curve on the mountain when, at 1:45 a.m., he drove into a chasm where Highway 70 had been.” Plaintiffs asserted that another motorist had called 911 at 12:58 a.m. to report that trees were down in a mudslide and that “if someone’s going up the mountain…they’re going to go off the road.” The 911 dispatcher sent the call to Officer Godsey, who arrived at the scene at 1:13 a.m., 30 minutes before the accident. He found a significant mudslide, including a power pole sliding down the mountain. At that time, Officer Godsey and a 911 operator “casually discussed the situation…[and] no action was taken then to shut down the highway or undertake any other preventative measures.” Multiple other calls were made between 911, various government agencies, and the electric company, although the director of the Emergency Management Agency did not arrive on the scene until 3:07 a.m. At 1:46 a.m., Officer Godsey called 911 to report that a vehicle had “hit a rock embankment and flipped over multiple times down the mountain,” and only after this “did any official consider closing the highway.” Notably, a motorist traveling behind decedent was injured when he also drove into the chasm.
In their complaint, plaintiffs asserted that decedent’s death was caused by “Defendants’ gross negligence, recklessness, and failure to take immediate and direct action in response to the substantial risk of catastrophic injury and/or death due to the collapse of Highway 70 on Clinch Mountain.” Defendants all filed motions for judgment on the pleadings, which the trial court granted, ruling that “reckless conduct just cannot move forward under the GTLA,” and that the claims for ordinary negligence were barred by the public duty doctrine. On appeal, dismissal was reversed.
There were three issues to be considered on appeal. First, the Court looked at whether “the trial court erred in ruling that the GTLA precludes recovery against governmental entities for injuries proximately caused by the grossly negligent or reckless conduct of their employees within the scope of their employment under Tenn. Code Ann. § 29-20-205[.]” To begin its analysis, the Court explained that § 29-20-205 states that “[i]mmunity from suit of all governmental entities is removed for injury proximately caused by a negligent act or omission of any employee within the scope of his employment.” If this section is fulfilled and immunity is removed, courts considering a GTLA suit “proceed to another step in their analysis,” considering the public duty doctrine. (internal citation omitted). Under the public duty doctrine, public employees and governmental entities are shielded “from suits for injuries that are caused by the employee’s breach of a duty owed to the public at large rather than to the individual plaintiff,” unless one of three special duty exceptions applies. One of those three exceptions arises when “the plaintiff alleges a cause of action involving intent, malice, or reckless misconduct.” (internal citation).
Pursuant to the language of the statute, the trial court had held that plaintiffs’ claims could not proceed because they were based on allegations of reckless conduct. The Court of Appeals, however, disagreed. After reviewing cases relied upon by both plaintiffs and defendants, the Court stated that this issue “requires us to delineate the distinct concepts of negligence, gross negligence, and recklessness,” which the Court quickly noted were “related.” The Court reasoned:
[C]onceptually distinct though it is, simple negligence is a subspecies of these heightened forms of negligence, and in turn, these concepts contrast with intentional torts. The GTLA does not exclude claims based on heightened forms of negligence. Indeed, the statute pertaining to immunity for emergency communications districts…establishes gross negligence as the standard for removal of governmental immunity as to members of emergency communication district boards… In addition, the third special duty exception to the public duty doctrine explicitly includes ‘reckless’ conduct. Defendants contend that particular special duty exception is applicable only to individual defendants. However, we find no legal basis for that interpretation… In that light, it would make little sense for a special duty exception to the public duty doctrine to explicitly include reckless conduct if claims of reckless conduct against governmental entities could never proceed in the first place.
(internal citations omitted).
Considering the GTLA as a whole, the Court ruled that plaintiffs’ claims could proceed, explaining:
Plaintiffs’ allegations are of systemic failure on the part of the governmental entities rather than solely conduct from individual governmental employees. That is so whether Plaintiffs’ claims are couched as negligence, gross negligence, or recklessness. They are all tethered to the alleged failures of the Defendant entities… It is difficult to imagine that our General Assembly intended to remove governmental immunity for simple negligence, but preserve governmental immunity for recklessness or gross negligence. This would perversely incentivize government, should it commit a negligent act, to commit worse forms of negligence so as to remain immune. Under the GTLA, and consistent with our holding in Brown, Plaintiffs could proceed with their claims (including their claims encompassing simple negligence if they have sufficiently pled claims of recklessness or gross negligence—heightened forms of negligence) against Defendants[.]
Next, the Court analyzed whether the trial court correctly found that “the facts pled were sufficient to state a claim based upon recklessness.” In this case, plaintiffs alleged that “Officer Godsey blatantly refused to follow any protocol in assessing the situation;” that the 911 agency “failed or blatantly refused to obtain more information or make any additional calls to other emergency personnel;” that Defendants were on notice of the active mudslide on the highway “and waited almost an hour to make any effort whatsoever to close down the highway;” and, among other allegations, that the entities involved failed to properly train their employees. Based on these allegations, the Court of Appeals agreed that Plaintiffs sufficiently pled facts supporting their claims based upon both recklessness and gross negligence here.
Finally, the Court reviewed the trial court’s ruling that the public duty doctrine barred this claim, with the Court of Appeals reversing this holding. Although the Court had “no difficulty concluding that Defendants’ duties with respect to how to respond to the highway washout were duties owed to the public at large and not just to Decedent individually,” the Court also noted that one of the special duty exceptions to the public duty doctrine applied here. The third special duty exception arises when “a plaintiff alleges a cause of action involving intent, malice, or reckless misconduct.” Because plaintiffs had sufficiently pled recklessness, “the third special duty exception to the public duty doctrine would apply to remove Defendants’ immunity from liability,” provided that plaintiffs proved their claims.
Because claims based on recklessness and gross negligence may proceed under the GTLA, and because a special duty exception to the public duty doctrine applied, dismissal of this case was reversed.
The Court of Appeals used sound reasoning to come to the correct conclusion in this case. Excluding heightened forms of negligence from falling within the GTLA would not make sense under the statute or from a public policy perspective.
NOTE: This opinion was released 1.5 months after oral arguments in this case.