Cooper v. Rutherford County

• Decision Date: 15 December 1975
• Parties: V. L. COOPER, Appellant, v. RUTHERFORD COUNTY, Appellee.
• Court: Tennessee Supreme Court

Page 783

531 S.W.2d 783

V. L. COOPER, Appellant, v. RUTHERFORD COUNTY, Appellee.

Supreme Court of Tennessee.

Dec. 15, 1975.

Dicken E. Kidwell, Murfreesboro, for appellant.

William T. Sellers, Smith & Sellers, Murfreesboro, for appellee.

OPINION

FONES, Chief Justice.

In this direct appeal the appellant, V. L. Cooper, filed a suit for damages against the appellee, Rutherford County, as a result of the drowning death of his wife. The trial court dismissed the action under T.R.C.P. Rule 12.02(6) on the ground that the doctrine of sovereign immunity precluded recovery against the defendant county. We affirm the action of the trial court.

The following facts are alleged in the complaint: On December 24, 1974, at approximately 11:15 p.m., appellant's wife had left work at the Rutherford County Nursing Home and was proceeding on the County Farm Road, a two lane black top road, toward her home when she 'suddenly and unexpectedly' ran into the flood water of the Stones River, where the road crosses over the river. Her car was then carried downstream and she drowned. Mrs. Cooper's automobile was in front of another automobile driven by a Mrs. Pitts who also drove into the water. Mrs. Pitts escaped from her automobile, but it was carried away by the water. The complaint also alleges that the night was dark and rainy, and there were no lights, markers, or signs in the vicinity where the road crosses the river.

Appellant argues that this action may be maintained on three (3) separate theories: (1) the County is liable in negligence because the doctrine of sovereign immunity should be abrogated; (2) the county may not escape liability by relying on sovereign immunity as it maintained a public nuisance by building and operating a dangerous road and bridge; (3) the dangerous road and bridge resulted in a trap created by the defendant county which precludes defendant's reliance upon the doctrine of sovereign immunity.

I.

In support of his proposition that the doctrine of sovereign immunity should be judicially abrogated, appellant cites many cases in jurisdictions where this has been accomplished.

In 1973 the General Assembly of Tennessee enacted the Governmental Tort Liability Act, T.C.A. § 23--3301 et seq. T.C.A. § 23--3309 expressly removes immunity from suit for injury caused by the dangerous condition of any street, alley, sidewalk or highway, where construction or actual notice of such condition is alleged and proven. As originally enacted a local political body had the option to 'exempt itself under certain conditions.' We assume Rutherford County to be exempt pursuant to T.C.A. § 23--3303 by the failure of appellant to raise the issue in response to the cunty's plea of governmental immunity. In Johnson v. Oman Construction Company, 519 S.W.2d 782 (Tenn.1975) we considered this statute and stated:

'We do not regard this statute as dealing with the subject in a complete or comprehensive manner. We are reluctant to take judicial action in this area, however, without giving the General Assembly an opportunity to establish a comprehensive and uniform tort claims procedure governing suits against cities, counties and other political subdivisions or their agencies in the duly constituted courts of the state.' 519 S.W.2d 786.

Subsequent to the Johnson decision, the General Assembly enacted Chapter 252 of the Public Acts of 1975 which removed the option of the local government to exempt itself from the Government Tort Liability Act. Chapter 252 provides that the governmental units that have exempted themselves from the Act would automatically be subject to the provisions of that Act for all claims or actions arising after January 1, 1976. After that date, this category of tort claims will be stripped of the shield of governmental immunity in all of the counties and municipalities of Tennessee.

The legislature has given the local units what it considers to be appropriate time to adjust their procedures and take adequate steps to protect against the consequences of a change in the law of governmental immunity. It would be inappropriate for us to judicially accelerate the tort liability of counties in the present and prospective state of the law.

II.

The theory of nuisance has been urged in the Courts of Tennessee for many years, in an effort to circumvent the bar of governmental immunity. In many of the reported cases, the conclusion that the condition of the roadway or bridge complained of constituted a trap was alleged in support of the nuisance theory.

In Vance v. Shelby County, 152 Tenn. 141, 273 S.W. 557 (1925), the missing bridge was alleged to be a dangerous pitfall, snare, death trap and nuisance. In Buckholtz v. Hamilton County, 180 Tenn. 263, 174 S.W.2d 455 (1943), an overflow of 'clear' water across the highway that was said to appear innocuous but was alleged to be a death trap in support of the theory that the creation of a nusance on the public road by the county superseded the bar of sovereign immunity.

Both Vance and Buckholtz reject the nuisance theory, as have other reported cases too numerous to mention. In short, counties, as distinguished from municipalities, have consistently avoided liability in such circumstances.

The history of tort liability of municipalities for negligence in the construction and maintenance of streets is contra. Cities were judicially declared responsible in tort for failure to keep roads in good repair as early as 1839 and the duty was statutorily imposed in 1913, along with a notice requirement.

In The Metropolitan Government of Nashville and Davidson County, Tennessee v. Allen, 220 Tenn. 222, 415 S.W.2d 632 (1967), the case history of cities and counties in this field of the law is recounted along with the reasons therefor.

There are numerous cases wherein plaintiffs have sought to extend the tort liability of cities beyond the narrow limits of negligent construction and maintenance of streets, by the use of the nuisance theory. In Powell v. City of Nashville, et al., 167 Tenn. 334, 69 S.W.2d 894 (1934), a city ordinance required a stop sign at the intersection of Second and Monroe, but the city failed to maintain the sign and its absence was said to constitute a nuisance. Obviously that theory was urged because this Court had previously held that the making and enforcing of ordinances regulating the use of the streets was a governmental function. Town of Gainesboro v. Gore, 131 Tenn. 35, 173 S.W. 442 (1915). The Court, in Powell, rejected the nuisance theory in the circumstances alleged, on the basis that the condition complained of involved an act of nonfeasance. Parenthetically, the condition complained of in this case also involves nonfeasance, not misfeasance.

III.

The only case in this state that has discussed the trap theory, as a cause of action separate and distinct from nuisance, is Sullivan v. Herbert, 225 Tenn. 564, 473 S.W.2d 453 (1971). There, as in Powell, failure to maintain a stop sign in place was alleged to have created a dangerous condition amounting to a nuisance. After rejecting nuisance as a basis of action, in accord with Powell, the opinion speculates that:

'. . . if this Court is to hold the failure to maintain a traffic stop sign at an intersection is actionable negligence, . . . it must be upon a case showing that the intersection is, in fact, virtually a trap, and as such, a causative factor in the accident. . . .

Such a requirement would not be harsh in view of the present general rule against liability.' 225 Tenn. 569, 570, 473 S.W.2d 455.

The Court's observation was dictum and motivated by the desire to chip away a portion of the sovereign immunity doctrine. That particular approach has not been adopted by this Court and will not be in this case, in view of the present and prospective state of the Tennessee Governmental Tort Liability Act.

In conclusion, the principles of law in Vance and Buckholtz control the disposition of this case, and similar suits against the counties of this State that have excluded themselves from the Tennessee Governmental Tort Liability Act, until January 1, 1976.

The decree of the trial court is affirmed. The costs are adjudged against appellants.

COOPER and HARBISON, JJ., concur.

HENRY and BROCK, JJ., dissent.

HENRY, Justice (dissenting).

Governmental immunity is a cankered, corroded and corrupted area of our law. It is the flaming sword used by cities and counties in Tennessee to bunish the innocent victims of their wrongs and deny them their traditional day in court. It has become the hallmark of governmental irresponsibility--the defense by which governmental entitles stoop to conquer their own citizens.

It was with tremendous pride that I concurred in Johnson v. Oman Construction Company, Inc., 519 S.W.2d 782 (1975), wherein this Court unanimously denounced the doctrine of sovereign immunity as 'an anachronism' and as 'at variance with modern concepts of justice.' In effect, we said that we would give the legislature an opportunity to act, with the clear implication that if it did not we would. We recognized the Governmental Tort Liability Act (§ 23--3301 et seq. T.C.A.) and commented upon this Act:

We do not regard this statute as dealing with the subject in a Complete and comprehensive manner. We are reluctant to take judicial action in this area, however, Without giving the General Assembly an opportunity to establish A comprehensive and uniform tort claims procedure governing suits against cities, counties and other political subdivisions or their agencies in the duly constituted courts of the state. (Emphasis supplied). 519 S.W.2d at 786.

I wish to make it a matter of record that my concurrence was based upon an honest belief that if the legislatue did not establish a 'comprehensive and uniform' tort claims procedure, this Court would abrogate governmental immunity. We recognized and held, in effect, that the Governmental Tort Liability Act was neither comprehensive nor uniform....