Bowers by Bowers v. City of Chattanooga

• Decision Date: 18 February 1992
• Citation: 826 S.W.2d 427,73 Ed.LawRep. 1163
• Parties: 73 Ed. Law Rep. 1163 Danny Leon BOWERS, a minor by Next Friend Danny BOWERS and Carmen Hudgens, and Danny Bowers and Carmen Hudgens, individually, Plaintiffs-Appellants, v. CITY OF CHATTANOOGA, Brett A. Newmyer and John Newmyer, Defendants-Appellees.
• Court: Tennessee Supreme Court

Page 427

826 S.W.2d 427

73 Ed. Law Rep. 1163

Danny Leon BOWERS, a minor by Next Friend Danny BOWERS and Carmen Hudgens, and Danny Bowers and Carmen Hudgens, individually, Plaintiffs-Appellants, v. CITY OF CHATTANOOGA, Brett A. Newmyer and John Newmyer Defendants-Appellees.

Supreme Court of Tennessee at Knoxville.

Feb. 18, 1992.

Stephen T. Greer, Greer & Smith, Dunlap, Charles D. Paty, Paty, Rymer & Ulin, Chattanooga, for plaintiffs-appellants.

Randall L. Nelson, William Shelley Parker, Jr., Phillip A. Noblett, Chattanooga, for defendants-appellees.

OPINION

DROWOTA, Justice.

In this personal injury action, brought under the Tennessee Governmental Tort Liability Act, we granted Plaintiffs' application for permission to appeal in order to determine the sole issue of whether T.C.A. § 29-20-205(1) (1980) protects the defendant City of Chattanooga from a suit alleging negligence on the part of a public school bus driver. The minor plaintiff Danny Leon Bowers, his mother, and his father, brought suit to recover for injuries sustained when he was struck by an automobile shortly after departing from a Chattanooga Public School bus. The trial court, finding that the bus driver's negligence did not arise out of the performance of a discretionary function, returned a judgment for the minor plaintiff, his mother, and his father, in the amounts of $100,000.00, $5,000.00, and $30,000.00, respectively. On appeal, the intermediate court dismissed the action, holding that any negligence attributable to the City arose from discretionary acts protected by section 29-20-205(1) of the Tennessee Governmental Tort Liability Act.

Six-year-old Danny Bowers, who was in the first grade of the Chattanooga Public School System, was injured on September 9, 1986, when he was struck by an automobile as he attempted to cross Dodds Avenue shortly after disembarking from a school bus owned and operated by the Chattanooga Public School System. The automobile that struck Danny Bowers was driven by Brett A. Newmyer and owned by John Newmyer. The Newmyers were originally named as defendants in this case; they and the Plaintiffs have entered into a settlement agreement.

Dodds Avenue is a congested four-lane street in central Chattanooga that runs north to south. Pro Re Bona Day Care Center is located in the northwest quadrant of the intersection of Dodds Avenue and 18th Street; 18th is a stop street which crosses Dodds in an east-west direction. There are no traffic controls for Dodds Avenue traffic at 18th. The entrance to Pro Re Bona is located on the 18th Street side of the building. In 1980 or 1981, the Transportation Division of the Chattanooga Public School System established a school bus stop at the day care center.

Danny Bowers lived with his mother and grandmother on the east side of Dodds Avenue, across the street from the day care center. Throughout his 1985-86 kindergarten school year, and for approximately the first four weeks of the 1986-87 school year, Danny Bowers rode a public school bus, getting on and off at the Pro Re Bona stop.

Every school day prior to the day of the accident, Danny Bowers was accompanied to and from the bus stop by his mother or grandmother. They would walk him across Dodds Avenue in the morning (going from east to west across Dodds Avenue), meet him in the afternoon, and accompany him back (going from west to east).

Some children who utilized the Pro Re Bona bus stop went to the day care center; others simply lived in the neighborhood. Of these neighborhood children, as many as eight to twelve, ranging from five to twelve years in age, were required to cross Dodds Avenue in order to reach their homes.

The bus route, established by the Chattanooga School System Transportation Division, did not designate precisely where the bus was to stop, only that its stop was the "Pro Re Bona Nursery." While this stop was originally established to serve only the nursery, stopping at its 18th Street entrance, the trial court found that through the years the bus stopped at different locations at and around the day care center. During the year of the accident, with only one exception, the afternoon bus had made two stops at this location: first, on Dodds Avenue to let off the children who crossed Dodds going east; second, around the corner at the 18th Street entrance to the day care center. At both locations, the bus stopped traffic (with its stop sign and warning lights) until the students had crossed the particular street.

On the day of the accident, September 9, 1986, a change was made in the bus schedule. Because of overcrowded conditions, the School System's Transportation Department decided that the children who normally disembarked at the Pro Re Bona bus stop would ride a different bus with a different driver. Under this new schedule, the bus carrying Danny arrived at the day care center approximately ten minutes earlier than under the old schedule.

On September 9, the bus did not stop on Dodds Avenue, but only at the 18th Street entrance to the day care center. Danny got off the bus there and began walking east towards Dodds Avenue. Because of the bus's earlier arrival (of which Danny's mother had no prior notice), his mother did not meet him on the west side of Dodds. She had just arrived at the east side of Dodds Avenue when Danny began crossing Dodds with other students. She unsuccessfully tried to tell him to wait, but Danny attempted to cross Dodds and was hit by the car driven by Brett Newmyer.

In order for Plaintiffs to recover (1) the Court must determine that the City of Chattanooga is not immune from suit, and (2) plaintiffs must prove the necessary elements of negligence.

As stated earlier, the trial court found that the accident did not arise out of a "discretionary function" and therefore the City was not immune from suit. Specifically, the trial court found the bus driver negligent in failing to stop on Dodds, and thus provide protection for the children who needed to cross that avenue. This negligent act was determined not to be a discretionary function.

The Court of Appeals reversed, finding the City immune from suit. This finding was based largely upon a different factual conclusion regarding the cause of the accident. The Court of Appeals found it was "the change in schedule" which placed the minor Plaintiff in a position of peril. This altering of bus routes and schedules was found to be a "discretionary function," thus conferring immunity upon the City.

I.

With respect to the threshold issue of immunity, section 29-20-205 of the Tennessee Governmental Tort Liability Act (the "Act") provides in 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. (emphasis added).

While the Act does not define "discretionary function," this Court has repeatedly applied the following common law definition:

Where the duty is absolute, certain, and imperative, and is simply ministerial, the officer is liable in damages to any one specially injured, either by his omitting to perform the task or by performing it negligently or unskillfully. On the other hand, where his powers are discretionary, and to be exerted or withheld according to his own judgment, he is not liable to any private person for a neglect to exercise those powers, nor for the consequences of a willful exercise of them, where no corruption or malice can be imputed to him, and he keeps within the scope of his authority.

Hale v. Johnston, 140 Tenn. 182, 197, 203 S.W. 949, 953, (1918).

We find that time has come to provide more guidance with respect to which activities are within the scope of the "discretionary function" exception and to abandon attempts to construe the exception solely by reference to the literal definitions of "discretionary" and "ministerial." The classification of functions as governmental/proprietary or discretionary/ministerial is imprecise, does not draw a clear and definite distinction, and leads to inconsistent results. Today we approve of the analysis that determines which acts are entitled to immunity by distinguishing those performed at the "planning" level from those performed at the "operational" level. As Chief Justice Shepard of Indiana said in Peavler v. Board of Commissioners, 528 N.E.2d 40, 45 (Ind.1988):

The distinction between planning and operational functions is a standard, rather than a precise rule. The focus must remain on the policy underlying governmental immunity. If the act is one committed to coordinate branches of the government involving policy decisions not reviewable under traditional tort standards of reasonableness, the government is immune from liability even if the act was performed negligently.

In adopting the "planning-operational" test which was urged by Judge Franks's dissent in Davis v. City of Cleveland, 709 S.W.2d 613, 616 (Tenn.App.1986), we overrule Hale and its progeny to the extent that this test conflicts with the definitions set forth in Hale.

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 give rise to immunity. See Carlson v. State, 598 P.2d 969, 972 (Alaska 1979). The distinction between planning and operational depends on the type of decision rather than merely the identity of the decision maker. See id. We caution that this distinction serves only to aid in determining when discretionary function immunity applies; discretionary function immunity attaches to all conduct properly involving the balancing of policy considerations. ...