Greenhill v. Carpenter

• Decision Date: 01 July 1986
• Docket Number: No. 098420T,098420T
• Parties: 35 Ed. Law Rep. 837 Sylvia GREENHILL, Plaintiff/Appellant, v. Dr. Thomas CARPENTER, et al., Defendants/Appellees. D.
• Court: Tennessee Court of Appeals

Page 268

718 S.W.2d 268

35 Ed. Law Rep. 837

Sylvia GREENHILL, Plaintiff/Appellant, v. Dr. Thomas CARPENTER, et al., Defendants/Appellees.

No. 098420T.D.

Court of Appeals of Tennessee,

Western Section, at Jackson.

July 1, 1986.

Application for Permission to Appeal

Denied by Supreme Court

Sept. 29, 1986.

A.C. Wharton, Jr. of Wharton & Wharton & Associates, Memphis, for plaintiff/appellant.

W.J. Michael Cody, Atty. Gen. & Reporter, Michael W. Catalano, Deputy Atty. Gen., William K. Tomlinson, Asst. Atty. Gen., Nashville, for defendants/appellees.

TOMLIN, Presiding Judge (W.S.)

Sylvia Greenhill (hereafter "plaintiff") brought a suit, sounding in both tort and contract, in the Circuit Court of Shelby County against the president, athletic director, the then head football coach of Memphis State University (now deceased), and against its Department of Athletics (hereafter "MSU defendants"). She sued in both her individual capacity and as administratrix of the estate of her son, Charles Greenhill, Jr. Plaintiff's tort claim is based on the alleged negligence on the part of the MSU defendants, resulting in the death of her son in an airplane crash. The contract claim is based on the alleged breach of a contractual agreement to properly insure his life. The MSU defendants filed a motion to dismiss on the grounds of lack of subject matter jurisdiction based on sovereign immunity, pursuant to Rule 12.02(1), T.R.C.P. The motion was granted.

By this appeal, plaintiff raises two issues: Did the trial court err (1) in dismissing plaintiff's action for lack of subject matter jurisdiction based on the doctrine of sovereign immunity, and (2) in ruling that it lacked subject matter jurisdiction over plaintiff's contract claim on the basis that such a claim could only be brought in Davidson County. We find no error and affirm.

In reviewing the granting of a motion to dismiss, the facts alleged in plaintiff's complaint must be accepted as true. Sullivant v. Americana Homes, Inc., 605 S.W.2d 246, 249 (Tenn.App.), permission to appeal denied, (1980). In 1982, representatives of Memphis State University began recruiting young Greenhill to attend MSU and to play football. Plaintiff was concerned with her son's future and was involved in the negotiations. She inquired as to what efforts Memphis State University would make to insure her son's safety in all his activities as a member of its football team. She was assured by Head Coach Dockery, as well as by others, that he would be insured "twenty-four hours a day, on and off the field, as long as he is a student athlete." Partly because of this representation, she gave her consent for her minor son to sign a letter of intent. Greenhill ultimately entered Memphis State University and became a member of the football team.

In December, 1983 he accompanied Coach Dockery and others on a flight to Lawrenceburg, Tennessee in a private plane, piloted by an officer of the Highland Hundred Club, an MSU booster club. Dockery was to be a speaker at a banquet that evening. It is alleged that the coach desired to use this trip to recruit for the MSU athletic program. While attempting to land in Lawrenceburg, the plane crashed in bad weather, killing all on board.

In her complaint, plaintiff charged that the MSU defendants were negligently responsible for Greenhill's death due to their failure to insure safe travel arrangements for him, and too, that the MSU defendants breached their promise to obtain life insurance for him. The complaint also charged fraud, alleging that the MSU defendants fraudulently represented that they would insure his life. The complaint also alleged that most, if not all, of the funding for the Department of Athletics of Memphis State University comes from sources other than the state of Tennessee.

I. THE ISSUE OF SOVEREIGN IMMUNITY.

Article I, Sec. 17 of the Tennessee Constitution provides in part that "suits may be brought against the State in such manner and in such courts as the Legislature may by law direct." This section has been interpreted as a grant of sovereign immunity to the state, and, accordingly, no suit against the State may be sustained absent express authorization from the Legislature. Coffman v. City of Pulaski, 220 Tenn. 642, 422 S.W.2d 429, (1967), reh'g denied, (1968).

Tenn.Code Ann. Sec. 20-13-102(a) provides:

No court in the state shall have any power, jurisdiction, or authority to entertain any suit against the state, or against any officer of the state acting by authority of the state, with a view to reach the state, its treasury, funds, or property, and all such suits shall be dismissed as to the state or such officers, on motion, plea, or demurrer of the law officer of the state, or counsel employed for the state.

In the case of State ex rel. Allen v. Cook, 171 Tenn. 605, 106 S.W.2d 858, 860 (1937), the Court said:

Article 1, Section 17, of the Constitution delegating to the Legislature the power to authorize suits against the state, being in derogation of the state's inherent exemption from suit, must itself be strictly construed; hence legislation authorizing suits against the state must strictly pursue the constitutional requirements, and be so plain, clear, and unmistakable in its provisions as to the manner and form in which such suits may be brought as to leave nothing to surmise or conjecture.

In at least two cases our Supreme Court has expressly held that Memphis State University is a state institution to which the doctrine of sovereign immunity applies. Dunn v. W.F. Jameson & Sons, Inc., 569 S.W.2d 799 (Tenn.1978); Applewhite v. Memphis State University, 495 S.W.2d 190 (Tenn.1973).

Furthermore, when officials of a branch of the state such as Memphis State University are acting in their official capacities, they also are entitled to sovereign immunity. "A suit against a state official in his official capacity is a 'suit against the state.' " Cox v. State, 217 Tenn. 644, 399 S.W.2d 776, 778 (1965) (citations omitted). Since it is undisputed that plaintiff is suing the MSU defendants in their official capacities, they are protected by the doctrine of sovereign immunity as well.

Plaintiff contends that the activities involved which allegedly caused her damages, both in tort and contract, "are not necessarily governmental," and that the funds from which compensation is sought are not exclusively state funds. In support of her first contention she relies heavily upon Applewhite v. Memphis State University, supra. We are of the opinion that her reliance thereon is misplaced. In Applewhite, plaintiff sued Memphis State University, Memphis State University Press, Inc., and the author of a book for libel. MSU and MSU Press, Inc. raised the defense of sovereign immunity, which defense was sustained by the trial court. As to MSU itself, our Supreme Court, noting that MSU was created and maintained pursuant to statute and was subject to control of and management by the Tennessee Board of Education, stated unequivocally that "Memphis State University is an institution to which the doctrine of sovereign immunity applies and no statute authorizes this suit." Id. at 198. Relative to Memphis State University Press, Inc., however, the Court said, "it is a separate question whether a publishing corporation which it owns and controls is immune from liability for the publication of a book alleged to be libelous." Id. at 196.

The Court then concluded that MSU Press was not entitled to be dismissed on a plea of governmental immunity, stating:

Certainly education is a governmental function and this publishing company assists in the educational program. Publishing is not, however, generally perceived as a governmental function and the editing, marketing and similar activities relative to publications such as the book in this case have the distinct characteristics of a proprietary function. When an educational institution separately incorporates its publishing activities and keeps such funds distinct from general university funds, it does not seem improper to consider the university immune and the publishing corporation subject to suit.

Id. at 197.

An analysis of the Court's holding in Applewhite clearly indicates it focused on the status of MSU Press as a separate corporation, a legal entity separate and apart from Memphis State University. In the...