Jenkins v. Loudon County

• Citation: 736 S.W.2d 603
• Court: Supreme Court of Tennessee
• Decision Date: 14 September 1987
• Parties: Nancy JENKINS, Plaintiff-Appellant, v. LOUDON COUNTY, Defendant-Appellee.

Page 603

736 S.W.2d 603

Nancy JENKINS, Plaintiff-Appellant, v. LOUDON COUNTY, Defendant-Appellee.

Supreme Court of Tennessee,

at Knoxville.

Sept. 14, 1987.

Peter Alliman, Madisonville, for plaintiff-appellant.

Harvey L. Sproul, Lenoir City, for defendant-appellee.

OPINION

DROWOTA, Justice.

An issue of first impression is presented by this case. Application for Permission to Appeal was granted to determine whether the Tennessee Governmental Tort Liability Act, T.C.A. §§ 29-20-101, et seq. (GTLA), supercedes T.C.A. §§ 8-8-301 through 8-8-303, which provide a waiver of immunity to suit against a county to recover damages caused by wrongful conduct of a sheriff's deputy. Plaintiff, Nancy Jenkins, brought this action to recover on a judgment awarded in Federal Court for violation of her civil rights by a deputy sheriff employed by Defendant, Loudon County. The trial court dismissed Plaintiff's suit upon Defendant's Motion to Dismiss and the Court of Appeals affirmed because it found that the GTLA impliedly repealed T.C.A. §§ 8-8-301 through 8-8-303.

I

On September 17, 1982, Plaintiff was awarded a judgment in United States District Court against Voyd Carruth, a deputy sheriff in Loudon County, for violation of her civil rights under 42 U.S.C. § 1983. Loudon County was not a party to the action in the Federal District Court. ¹ The judgment for $10,000, plus interest and costs, was affirmed by the United States Sixth Circuit Court of Appeals on May 1, 1984. On November 13, 1984, the Federal District Court also awarded Plaintiff $9,256 in attorney's fees pursuant to 42 U.S.C. § 1988. Her total award exceeds $20,000. The incident out of which the civil rights action arose occurred on February 10, 1981. On June 4, 1984, Plaintiff commenced this suit, alleging that she had recovered damages in Federal Court and seeking recovery from Loudon County under T.C.A. §§ 7-51-202 and 8-8-302. The Defendant filed a Motion to Dismiss on November 13, 1984, relying on the GTLA. An affidavit in support of Defendant's Motion was also filed, reciting the fact that Loudon County never took any action to exempt itself from the application of the GTLA. Plaintiff filed a Motion for Summary Judgment on June 24, 1985, but on July 10, 1985, the trial court granted Defendant's Motion to Dismiss. An Order of Dismissal was entered on August 1, 1985, and Plaintiff filed her Notice of Appeal on August 10, 1985.

Treating the case as a summary judgment under Rules 12.03 and 56, T.R.C.P., the Court of Appeals affirmed the action of the trial court. Finding that because the GTLA was passed after the provisions of T.C.A. §§ 8-8-301, et seq., were enacted and that an irreconcilable conflict existed between the two acts, the Eastern Section concluded that a repeal by implication resulted from the enactment of the GTLA. The Court below also reasoned that because the GTLA specifically excludes civil rights claims from the operation of the GTLA under T.C.A. § 29-20-205, immunity from such suits has not been waived. We now reverse the trial court and the Court of Appeals on this issue.

II.

A.

The Constitution of this State permits the Legislature to direct the manner in which "[s]uits may be brought against the State...." Article I, § 17, Tennessee Constitution. Numerous statutes have been passed pursuant to this provision of the State Constitution. By 1884, the law in Tennessee was "settled ... that municipal corporations of the character of our counties are not liable to a private action, at the suit of a party injured by a neglect of its officers to perform a corporate duty, unless such action is given by statute." White's Creek Turnpike Co. v. Davidson County, 82 Tenn. 73, 73-74 (1884). ² Absent any statutory waiver of the county's immunity, the liability of a county sheriff for the misconduct of a deputy was determined by the common law. Ivy v. Osborne, 152 Tenn. 470, 473, 279 S.W. 384, 384 (1925). Cf. Coffman v. City of Pulaski, 220 Tenn. 642, 422 S.W.2d 429 (1966) (stating general rule of immunity). At common law, the sheriff was personally liable "to persons aggrieved by official wrongs of his deputy." Metropolitan Government of Nashville and Davidson County v. Poe, 215 Tenn. 53, 73, 383 S.W.2d 265, 274 (1964) (citations omitted). See also Shelby County Civil Service Merit Board v. Lively, 692 S.W.2d 15, 17 (Tenn.1985). To provide security for the sheriff's personal liability, the sheriff obtained a bond pursuant to the requirements of what is now T.C.A. § 8-8-103. Originally, this bond was "a private bond, payable to the sheriff, and for his protection against liability for the official misconduct of the deputy." Ivy v. Osborne, supra, 152 Tenn. at 473, 279 S.W. at 385.

As the office of the sheriff has evolved, statutory provisions have modified this common law liability, and in 1972, Chapter 800, 1972 Public Acts, now codified as T.C.A. §§ 8-8-301, et seq., was enacted, providing that "[n]o sheriff, whether elected or appointed, nor any surety on his bonds, shall be liable for any wrongs, injuries, losses, damages or expenses incurred as a result of any act or failure to act on the part of any deputy appointed by said sheriff, whether said deputy is acting by virtue of office, under color of office or otherwise." In Grundy County v. Dyer, 546 S.W.2d 577 (Tenn.1977), this Court found "that [T.C.A. § 8-8-301] operates to relieve the sheriff and his surety from liability for the acts of his deputy whether the deputy is 'acting by virtue of office, under color of office or otherwise.' " 546 S.W.2d at 580. The Court then observed that the liability of the sheriff had been shifted to the county to a limited extent:

"It is equally clear that [T.C.A. § 8-8-302] authorizes suit against the County based on the acts of a deputy sheriff if, but only if, the deputy is at the time 'acting by virtue of, or under color of his office.'

"The ensuing section [T.C.A. § 8-8-303] waives the immunity of the county as to such suits but only to the extent of the amount of the sheriff's surety bond."

Id. (emphasis in original). See also Rogers v. Anderson, 580 S.W.2d 782, 783 (Tenn.1979).

While Chapter 800, 1972 Public Acts, was enacted by the 87th General Assembly, the following year, Chapter 345, 1973 Public Acts, was enacted by the 88th General Assembly. Chapter 345 is presently codified at T.C.A. §§ 29-20-101, et seq. The GTLA was not effective until January 1, 1974, and, as originally enacted, contained a provision permitting "[a]ny government entity [to] exempt itself from ... this chapter by action of its legislative body if such action is taken by January 1, 1975...." This Court commented on the passage of the GTLA in Johnson v. Oman Construction Co., Inc., 519 S.W.2d 782 (Tenn.1975), and concluded that "[w]e do not regard this statute as dealing with the subject in a complete or comprehensive manner." 519 S.W.2d at 786. The GTLA applies only to those government entities as defined in T.C.A. § 29-20-102, which does not include the State itself or its agencies and includes only the political subdivisions of the State and their agencies. See Tennessee Department of Mental Health and Mental Retardation v. Hughes, 531 S.W.2d 299, 300 (Tenn.1975). ³ Moreover, the jurisdiction of a court of equity to abate a nuisance created and maintained by a municipality is not affected by the GTLA. See, e.g., Pate v. City of Martin, 586 S.W.2d 834, 836 (Tenn.App.1979). Cf. Dean v. Bays Mountain Park Assoc., 551 S.W.2d 702, 704-705 (Tenn.App.1977). But cf. Smith v. City of Covington, 734 S.W.2d 327 (Tenn.App.1985), aff'd (Tenn.1987) (Per Curiam ) (Suit for damages). In addition, in Johnson v. Oman Construction Co., Inc., supra, the Court also remarked that it "does not regard with favor the doctrine of sovereign immunity as applied to municipal or county governments." 519 S.W.2d at 786.

Subsequent to Johnson, the 89th General Assembly enacted Chapter 252, 1975 Public Acts, to amend the GTLA by eliminating the local exemption option. T.C.A. § 29-20-103(b) makes the GTLA applicable "to all governmental entities as defined herein, provided that as to those governmental entities exempting themselves, as provided for in the preceding subsection, this chapter will not apply to claims or actions arising after January 1, 1976." Following this amendment, this Court decided Cooper v. Rutherford County, 531 S.W.2d 783 (Tenn.1975). The Court noted the 1975 amendment and observed that the law in this area was still being modified and developed by legislation and thus refrained from carrying through with the implications of Johnson for government subdivisional immunity because it appeared that adequate statutory remedies were being provided by the Legislature to victims of the torts of governmental entities and employees; however, as Justice Henry observed in his dissent in Cooper, referring to Johnson, legislative abrogation of the option of local governmental entity exemption from the operation of the GTLA "made the law uniform but did not make it comprehensive." 531 S.W.2d at 786. The 1975 amendment has the effect of rescinding any exercised exemption option and places all governmental entities, as defined by the GTLA, within the operation of that statute. ⁴

In 1976, the 89th General Assembly also amended what is now codified as T.C.A. § 8-8-303. Chapter 775, 1976 Public Acts, extends the sheriff's immunity contained in § 8-8-301 to include "any wrong, injury, loss, damage, or expense resulting from any act or failure to act on the part of any special deputy appointed by the sheriff, but not employed by the sheriff or the county" and requires such a person so damaged "to pursue his or her remedy therefor against such special deputy and/or the employer or employers of such special deputy, whether the special deputy is acting within the scope of his employment or not;" however, "[s]aid immunity from suit shall not apply in the case of special volunteer or reserve sheriff's...