William J. Chase, Yr., as Administrator C.T.A of the Estate of Betty Lou Stidham v. The City of Memphis, Tennessee ( 1997 )

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT JACKSON
________________________________________________
WILLIAM J. CHASE, JR., As Administrator
C.T.A. of the Estate of BETTY LOU
FILED
STIDHAM, Deceased,
September 5, 1997
Plaintiff-Appellee,
Cecil Crowson, Jr.
Appellate C ourt Clerk
Vs. C.A. No. 02A01-211-CV-00327
Shelby Circuit No. 36934 T.D.
THE CITY OF MEMPHIS,
Defendant-Appellant.
___________________________________________________________________________
FROM THE CIRCUIT COURT OF SHELBY COUNTY
THE HONORABLE JAMES E. SWEARENGEN, JUDGE
John J. Heflin III, Bourland, Heflin,
Alvarez, Holley & Minor, PLC, of Memphis
For Plaintiff-Appellee
Monice Moore Hagler, City Attorney
Robert M. Fargarson, Assistant City Attorney
Martin W. Zummach
For Defendant-Appellant
AFFIRMED
Opinion filed:
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
DAVID R. FARMER, JUDGE
HOLLY KIRBY LILLARD, JUDGE
This appeal involves a suit for wrongful death based on negligence under the Tennessee
Governmental Tort Liability Act, T.C.A. § 29-20-101 et seq. (1980) and for wrongful death
based on the creation of a special relationship and a nuisance. Defendant, the City of Memphis,
appeals from the trial court’s judgment in favor of plaintiff, William J. Chase, as Administrator
C.T.A. of the Estate of Betty Lou Stidham. The trial court, sitting without a jury, found that
plaintiff’s damages totaled $1,897,713.03, and that the City’s negligence caused 40 percent of
those damages. However, because of the application of the Tennessee Governmental Tort
Liability Act (hereinafter the Act), the court limited plaintiff’s recovery to $130,000.00, and
entered a judgment in that amount.
The issues to be decided are whether the trial court erred in finding that the defendant’s
acts were not immune from liability under the Act; and if not immune, whether the trial court
erred in finding that the defendant’s negligence was a proximate cause of Betty Lou Stidham’s
death; whether the trial court erred in finding that the defendant assumed a special duty to Ms.
Stidham to undertake acts that would have protected her; and finally, whether claims against
municipalities arising out of the creation of a nuisance are encompassed within the Act; and if
so, whether the trial court erred in failing to grant plaintiff a recovery based on nuisance. The
plaintiff also asks this Court to consider whether the doctrine of sovereign immunity should be
discarded by the courts of Tennessee.
I.
Betty Lou Stidham died on June 18, 1990, after being mauled to death by two pit bull
dogs owned by her next door neighbor, Edwin Hill. Prior to this incident, Hill had a variety of
problems with the dogs. In February of 1988, the dogs attempted to attack Hill’s mother, and
on October 30, 1988, they succeeded. Both times, city employees, either police, paramedics, or
both, were called to the scene to assist. After the October 1988 incident, the police sent a report
about the attack to the City of Memphis Animal Shelter. Earl Grouchau, who owned Ms.
Stidham’s home prior to selling it to her, also had problems with Hill’s dogs. Grouchau testified
that Hill’s dogs caused him to fear for his life. He built a six-foot wooden fence on his side of
the property after Hill’s dogs began to burrow underneath the chain link fence. Undaunted, the
dogs continued to burrow underneath the new fence and enter his yard. After the pit bull dogs
chased his son, Grouchau complained to the City of Memphis Police. He complained to the
police about the dogs at least two times between 1987 and 1989 and also filed a complaint with
the Animal Shelter. He informed Robert Lee, the manager of the Animal Shelter, about his
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problems with Hill’s dogs.
On January 3, 1990, Hill’s dogs attacked Ms. Stidham’s small dog, which resulted in Ms.
Stidham filing a “vicious animal complaint” with the Animal Shelter. As a result of the
complaint, Hill’s dogs were impounded for evaluation. While the dogs were in the care of the
city, the female dog attempted to attack an Animal Shelter worker, Pamela Topping. During the
evaluation period, Animal Shelter employees performed tests on the dogs to evaluate their
behavior and found that neither of the dogs exhibited overtly aggressive behavior.
On January 23, 1990, a vicious animal hearing took place at the Animal Shelter. Despite
the fact that the Animal Shelter is supposed to keep records of dog attacks received from the
police, fire department, and hospitals, it had no record of the prior attacks by Hill’s dogs. Robert
Lee, who conducted the hearing, did not allow testimony to be elicited from Hill concerning the
violent nature of the dogs. Lee decided that the dogs were not “vicious” based on the tests
performed during the evaluation period. Lee concluded that the dogs did not show a vicious
nature toward humans or other animals and, therefore, the dogs were released to Hill. Instead,
Lee determined that the dogs were “dangerous” because they were capable of inflicting serious
injury. Lee issued a letter on January 29, 1990, which stated that the dogs were dangerous and
ordered that Hill correct any fencing deficiencies around his property and that Hill enroll himself
and the dogs in a basic obedience training program within 90 days. According to the letter,
Hill’s failure to do either would result in a declaration that the dogs were vicious and immediate
seizure of the dogs. The letter was sent to both Hill and Ms. Stidham.
Hill’s dogs were released to him on January 26, 1990. On two occasions, Animal Shelter
employees, including Lee, visited Hill’s property to inspect the fencing. Lee ordered that the
back gate remain locked. Hill assured Lee that he would enroll the dogs in obedience school and
would inform the Animal Shelter when the training was complete. However, Hill never enrolled
the dogs in obedience school, and the Animal Shelter never followed up their order. Although
Hill did not comply with the administrative order, the Animal Shelter did not seize the dogs or
declare them vicious. The Animal Shelter did not receive any further complaints about Hill’s
dogs until the day of the tragedy of Ms. Stidham’s death.
The trial court held that the defendant’s actions were not discretionary and, therefore,
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were not immune under the Act. The trial court held that the defendant was negligent, and that
the negligence was a proximate cause of Ms. Stidham’s death. The court stated that the failure
to follow-up on the obedience training and the failure to pick up the dogs was an act of
negligence. The court also felt that the vicious dog hearing was conducted improperly.
However, the court stated that the inadequate inspection of the fence was not a proximate cause
of the death. In addition, the court rejected the claim of nuisance because there was no
affirmative act by the defendant. Finally, the trial court believed that the defendant assumed a
special duty to Ms. Stidham to undertake acts to protect her and negligently failed to take
reasonable and appropriate action to do so.
Since this case was tried by the court sitting without a jury, we review the case de novo
upon the record with a presumption of correctness of the findings of fact by the trial court.
Unless the evidence preponderates against the findings, we must affirm, absent error of law.
T.R.A.P. 13(d). In Smith v. Bullington, 499 S.W.2d 649 (Tenn. App. 1973), this Court noted
that the review by this Court of the amount of a non-jury judgment for damages was governed
by then T.C.A. § 27-303, which has been supplanted by T.R.A.P. 13(d).
II.
This negligence action was brought pursuant to section 29-20-205 of the Act which
provides for removal of immunity for injury caused by negligent acts or omissions of
government employees. T.C.A. § 29-20-205 (1980).
In order for plaintiffs to recover, the court must first determine if the city is immune from
suit, and if not, the plaintiffs must prove the necessary elements of negligence. Bowers v. City
of Chattanooga, 826 S.W.2d 427, 429 (Tenn. 1992). With respect to the threshold issue of
immunity, section 29-20-205 provides in pertinent part,
Immunity 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 except if the
injury:
(1) Arises out of the exercise or performance or the failure to
exercise or perform a discretionary function, whether or not the
discretion is abused;
* * *
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(4) Arises out of a failure to make an inspection, or by reason of
making an inadequate or negligent inspection of any property;
(5) Arises out of the institution or prosecution of any judicial or
administrative proceeding, even if malicious or without probable
cause.
T.C.A. § 29-20-205.
The defendant argues that their actions are included in all three cited sub-sections of
T.C.A. § 29-20-205 because the actions are discretionary, a failure to inspect or an inadequate
inspection, and arise out of a quasi-judicial or an administrative proceeding. We have three
actions of the defendant to consider: (1) the acts during the vicious dog hearing; (2) the
inspection of the fencing on the Hill property; and (3) the failure to follow-up the obedience
school training and the resulting failure to impound the dogs.
As a preliminary matter, we believe that the actions of Lee during the vicious dog hearing
are immune from liability because they arise in an administrative hearing. Lee, sitting as judge,
had the opportunity to hear evidence, examine witnesses and hear arguments of informed counsel
and interested parties. The parties had the right to appeal his decision but neglected to exercise
this right. Even if Lee’s actions during the proceeding were negligent, they are immune from
liability.
In addition, we will not consider whether the inspection of the fence on Hill’s property
properly is immune under the Act because the trial court held that the inspection was not a
proximate cause of the death. Even if we hold that the inspection is not immune and, therefore,
could have been negligent, the evidence does not preponderate against the trial court’s finding
of no proximate cause. Therefore, the only act of the defendant to consider is the decision not
to follow-up and enforce the obedience school requirement, which the defendant argues is a
discretionary act for which immunity has not been removed.
In Bowers, the Tennessee Supreme Court provided guidance as to which activities fall
under the discretionary function and adopted the “planning-operational” test. Bowers, 826
S.W.2d at 430. Under the planning-operational test, decisions that rise to the level of planning
or policy-making are considered discretionary acts which do not give rise to tort liability, while
decisions that are merely operational are not considered discretionary acts and, therefore, do not
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give rise to immunity. Id. The Supreme Court outlined the analysis a court must follow to
determine if a decision falls under the discretionary function exception:
Under the planning-operational test, discretionary function
immunity does not automatically attach to all acts involving
choice or judgment. Such an analysis recognizes that, to some
extent, every act involves discretion. Rather, the underlying
policy of governmental immunity is better served by examining
(1) the decision-making process and (2) the propriety of judicial
review of the resulting decision.
A consideration of the decision-making process, as well as the
factors influencing a particular decision, will often reveal whether
that decision is to be viewed as planning or operational. If a
particular course of conduct is determined after consideration or
debate by an individual or group charged with the formulation of
plans or policies, it strongly suggests the result is a planning
decision. These decisions often result from assessing priorities;
allocating resources; developing policies; or establishing plans,
specifications, or schedules.
On the other hand, a decision resulting from a determination
based on preexisting laws, regulations, policies, or standards,
usually indicates that its maker is performing an operational act.
Similarly operational are those ad hoc decisions made by an
individual or group not charged with the development of plans or
policies. These operational acts, which often implement prior
planning decisions, are not "discretionary functions" within the
meaning of the Tennessee Governmental Tort Liability Act. In
other words, "the discretionary function exception [will] not
apply to a claim that government employees failed to comply
with regulations or policies designed to guide their actions in a
particular situation."
Another factor bearing on whether an act should be considered
planning or operational is whether the decision is the type
properly reviewable by the courts. The discretionary function
exception "recognizes that courts are ill-equipped to investigate
and balance the numerous factors that go into an executive or
legislative decision" and therefore allows the government to
operate without undue interference by the courts.
Id. at 431 (citations omitted).
The defendants ask us to rely upon a case decided by the Supreme Court of the State of
Florida, Carter v. City of Stuart, 468 So. 2d 955 (Fla. 1985). In Carter, the Florida Supreme
Court was faced with a similar issue as in the case sub judice. In that case, the City of Stuart was
sued after a dog attacked and seriously injured a child. The plaintiff claimed that the city was
negligent because it failed to enforce its ordinance requiring impoundment of dangerous dogs.
The plaintiff also alleged that the city should have impounded the dog after prior incidents of
biting. Id. at 956. The Florida Supreme Court, applying the planning-operational test adopted
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by Tennessee in Bowers, held that the city was immune because the decision not to enforce the
ordinance and impound the dog was discretionary. Id. at 957. The Court stated the rationale as
follows:
A government must have the flexibility to set enforcement
priorities on its police power ordinances in line with its budgetary
constraints. Without the ability to make such choices a
government must either pay the high cost of total enforcement or
forego the exercise of its police power. Neither option serves the
public interest.
Deciding which laws are proper and should be enacted is a
legislative function. How and in what manner those laws are
enforced is, in most instances, a judgmental decision of the
executive branch. The judicial branch should not trespass into the
decisional process of either.
Id.
In the case sub judice, the City of Memphis Animal Shelter was understaffed and
underfunded. The record indicates that the Shelter made the decision not to follow-up its
administrative order because of budgetary and manpower restraints. The Shelter established a
lower priority of enforcing this particular order. Although the results are unfortunate for the
plaintiff, this is the type of decision that was protected in Carter by the Florida Supreme Court.
We are impressed with the reasoning of the Florida Supreme Court. Our Supreme Court also
recognized the need to balance priorities and allocate resources. Bowers, 826 S.W.2d at 431.
Decisions that include the allocation of limited resources among competing needs do not need
interference from the courts, absent clear guidance from the legislature to the contrary. Helton
v. Knox County, 922 S.W.2d 877, 887 (Tenn. 1996). Accordingly, we find that the city
performed a discretionary function for which it is immune. T.C.A. § 29-20-205(1). However,
this finding cannot end our inquiry.
III.
The trial court also decided that the defendants assumed a special duty to the decedent,
Ms. Stidham, to undertake actions to protect her from Hill’s dogs. The plaintiffs characterize
the Animal Shelter’s letter and administrative order as a promise to Ms. Stidham that went
unfulfilled. The defendant argues that the duty owed by the City of Memphis was to the public,
not to a specific individual. The defendant claims that the danger posed by the dogs was to the
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public at large, and that the ordinances in place governing vicious animals were enacted for the
general welfare. As stated above, the issue to be decided is whether the defendant assumed a
special duty to the plaintiff.
In Ezell v. Cockrell, 902 S.W.2d 394, 400 (Tenn. 1995), the Tennessee Supreme Court
decided that the Act did not abolish the common law public duty doctrine. The Supreme Court
said, “[W]e are not persuaded that the Tennessee Governmental Tort Liability
Act, which actually reiterates and extends the rule of governmental immunity,
abolished, or was intended to abolish, the longstanding common-law public
duty doctrine.” Id.
The public duty doctrine originated at common-law and shields a public employee from
suits for injuries that are caused by the public employee's breach of a duty owed to the public at
large. Id. at 397. A private citizen cannot maintain an action complaining of the wrongful acts
of public officials unless such private citizen avers special interest or a special injury not
common to the public generally. Id. (quoting Bennett v. Stutts, 521 S.W.2d 575, 576 (Tenn.
1976)). If the public employee’s duty is to the public, then the municipality cannot be held
liable. However, if that employee assumes a special relationship with an individual, the
municipality can be found liable for that employee’s negligent acts. Ezell, 902 S.W.2d at 401.
The Supreme Court stated,
States adhering to the public duty doctrine, including Tennessee,
have recognized an exception to the rule of no-liability that
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.
* * *
Having decided that the public duty doctrine is viable, we
consider it both desirable and necessary to retain, and further
refine, the "special-duty" exception. After considering the
various formulations of the doctrine, we conclude that a special
duty of care exists when 1) officials, by their actions,
affirmatively undertake to protect the plaintiff, and the plaintiff
relies upon the undertaking; 2) a statute specifically provides for
a cause of action against an official or municipality for injuries
resulting to a particular class of individuals, of which the plaintiff
is a member, from failure to enforce certain laws; or 3) the
plaintiff alleges a cause of action involving intent, malice, or
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reckless misconduct.
Id. at 401-02.
In the case sub judice, the only applicable special duty would be when officials
affirmatively undertake to protect a plaintiff. There is no special statute; the plaintiff does not
allege intent or malice; and the record does not show reckless misconduct. The plaintiffs
ask us to follow a case from the State of Washington, Champagne v. Spokane Humane Society,
737 P.2d 1279 (Wash. App. 1987). In Champagne, a neighbor’s pit bull dog brutally attacked
the Champagne’s child. The Humane Society had previously received numerous complaints
concerning these pit bull dogs, including at least ten from Ms. Champagne. Id. at 1281. The
Humane Society told Ms. Champagne that they would patrol the area and apprehend any stray
dogs. Unfortunately, the dogs were not apprehended until the day after the attack. Id. at 1282.
The Champagnes argued that the special duty exception to the public duty doctrine was
applicable to their case. Id. In this appeal of a grant of summary judgment to defendant, the
court held that there were sufficient facts alleged to establish each element of the special duty
exception and reversed and remanded the case. Id. at 1284.
The Champagne case is similar to the case at bar. In the case sub judice, the City of
Memphis Animal Shelter sent Ms. Stidham a letter that informed her that the fencing would be
corrected and that the dogs would be trained at obedience school. Ms. Stidham was informed
that if Hill did not comply with the order, the dogs would be impounded. Because she made no
further complaints, the trial court apparently found, inferentially, that she relied upon this
assurance. We believe that the Animal Shelter “affirmatively under[took] to protect the
plaintiff” and the “plaintiff relie[d] upon the undertaking.” See Ezell, 902 S.W.2d at 402.
Obviously the neighborhood and the public at large would have also benefited from the Shelter’s
actions for Ms. Stidham. However, this does not mean that the defendant did not assume a
special duty to her. We hold that the defendant, City of Memphis, through the actions of the
Animal Shelter, assumed a special duty to Ms. Stidham.
However, the plaintiff must still show a breach of that special duty and proximate cause
of the injury. See Haynes v. Hamilton County, 883 S.W.2d 606, 611 (Tenn. 1994). Obviously
this duty was breached because the Animal Shelter did not follow-up on the assurances to Ms.
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Stidham. The defendant argues, however, that their actions were not the proximate causes of Ms.
Stidham’s death, but instead that the criminal conduct and the gross negligence of Hill were the
independent intervening proximate causes of the death. The defendant also argues that Ms.
Stidham assumed a known risk and was the proximate cause of her own injury and death.
The evidence does not preponderate against the trial court’s finding that the failure to
follow-up the obedience training requirement and to impound the dogs was a proximate cause
of Ms. Stidham’s death. The Tennessee Supreme Court has outlined a three-prong test for
proximate cause:
(1) the tortfeasor’s conduct must have been a “substantial factor”
in bringing about the harm being complained of; and (2) there is
no rule or policy that should relieve the wrongdoer from liability
because of the manner in which the negligence has resulted in the
harm; and (3) the harm giving rise to the action could have
reasonably been foreseen or anticipated by a person of ordinary
intelligence and prudence.
Haynes, 883 S.W.2d at 612. If the Shelter had impounded the dogs like the administrative order
required, then the dogs would not have been present to attack Ms. Stidham. Obviously this was
a substantial factor in bringing about the harm. In addition, an attack by the dogs and the
resulting injury were reasonably foreseeable because of the complaints received by the Shelter
concerning Hill’s dogs. We believe that there is no merit to the defendant’s argument that
Ms. Stidham assumed a known risk by walking to the sidewalk to get her mail. The evidence
does not preponderate against the trial court’s finding on this issue. From the record, we find
that defendant owed a special duty to Ms. Stidham, that this duty was breached, and the breach
of this duty was the proximate cause of Ms. Stidham’s death. The trial court was correct in the
judgment for the plaintiff.
IV.
The plaintiff has also presented the issue of whether claims against municipalities arising
out of the creation of a nuisance are encompassed within the Act. We have held on previous
occasions that a claim of nuisance is covered by the Act. In Collier v. Memphis Light, Gas &
Water Division, 657 S.W.2d 771, 776 (Tenn. App. 1983), this Court stated, “The legislature left
little if any room for doubt that actions against governmental entities for damages based on
10
activities historically labeled ‘nuisance’ are now included in and covered by the Act.” In that
case, we distinguished some of the cases that the plaintiff now relies upon to hold otherwise. Id.
We believe that the Tennessee Supreme Court case, Paduch v. City of Johnson City, 896
S.W.2d 767 (Tenn. 1995), speaks on this issue. The Supreme Court stated, “[A]n action for
damages resulting from the creation or maintenance of a temporary nuisance by a governmental
agency may be allowed under the act.” Id. at 772. We hold again today that an action for
nuisance is covered by the Act.
In the case sub judice, even if a claim for nuisance was not covered by the Act, we
believe that the trial court was correct in its decision that there was no act that constituted the
creation of a nuisance by the defendant. The evidence does not preponderate against the trial
court’s findings on the issue of the creation of a nuisance.
Finally, the plaintiff asks this Court to consider whether the doctrine of sovereign
immunity should be discarded by the courts of Tennessee. In Austin v. City of Memphis, 684
S.W.2d 624 (Tenn. App. 1984), this Court, in considering the abolishment of sovereign
immunity, said:
[P]laintiffs urge this court to change [the law of governmental
immunity] by virtue of judicial decree. We decline this
invitation. As pointed out by Judge Todd in Jones v. L & N
Railroad Co., 617 S.W.2d 164 (Tenn. App. 1981):
The rule of sovereign immunity in Tennessee is
both constitutional and statutory. It is not within
the power of the courts to amend it.
Id. at 170.
Austin, 684 S.W.2d at 637; see also City of Lavergne v. Southern Silver, Inc., 872 S.W.2d 687,
689 (Tenn. App. 1993).
V.
Accordingly, the judgment of the trial court is affirmed. Costs of this appeal are assessed
against the appellant.
_________________________________
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
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_________________________________
DAVID R. FARMER, JUDGE
_________________________________
HOLLY KIRBY LILLARD, JUDGE
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