Lucas v. State, No. M2002-02810-COA-R9-CV (Tenn. App. 11/3/2003)

• Decision Date: 03 November 2003
• Docket Number: No. M2002-02810-COA-R9-CV.,M2002-02810-COA-R9-CV.
• Parties: PHILLIP LUCAS, ET AL. v. STATE OF TENNESSEE, MICHAEL E. COLLINS, et al. v. STATE OF TENNESSEE.
• Court: Tennessee Court of Appeals

Page 1

Unpublished Opinion

PHILLIP LUCAS, ET AL. v.STATE OF TENNESSEE,MICHAEL E. COLLINS, et al. v.STATE OF TENNESSEE.

No. M2002-02810-COA-R9-CV.

Court of Appeals of Tennessee, at Nashville.

November 3, 2003 Session.

Filed February 4, 2004.

Appeal from the Tennessee Claims Commission, No. 1,604,201 and 20,100,376, en banc, Commissioners, Randy C. Camp, Vance W. Cheek, Jr., and W.R. Baker.

Judgment of the Tennessee Claims Commission Affirmed and Remanded.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Dawn Jordan, Rebecca Lyford, George Coffin, Nashville, Tennessee, for the appellant, State of Tennessee.

Mart G. Fendley, Clarksville, Tennessee, for the appellee, Phillip Lucas.

Tony R..Dalton, Chad D. Emerson, Knoxville, Tennessee, for the appellee, Michael E. Collins.

William B. Cain, J., delivered the opinion of the court, in which William C. Koch, Jr., P.J., M.S., and Patricia J. Cottrell, J., joined.

OPINION

WILLIAM B. CAIN, JUDGE.

These consolidated cases present two separate factual situations involving alleged liability of the state under the Tennessee Claims Commission Act, Tennessee Code Annotated section 9-8-301, et seq., for dangerous conditions existing on two separate highways.In both casesthe State asserted in defense discretionary function immunity.Because this defense is central to both cases, the Claims Commission consolidated the cases for consideration of the applicability of discretionary function immunity.In an en banc order, the Commission, construing Tennessee Code Annotated section 9-8-307(d) and cases based upon that section, overruled the State's motions for summary judgment.We hold that under the plain and unambiguous provisions of Tennessee Code Annotated section 9-8-307(d)the State is not entitled to assert discretionary function immunity in actions under the Tennessee Claims Commission Act and affirm the judgment of the Claims Commission.

At issue in these two consolidated appeals are separate assertions before the Tennessee Claims Commission of tort liability of the state for maintaining dangerous conditions on the highways.David Lucas, son of Phillip and Betty Lucas, died in an automobile accident on March 2, 1990 on State Highway 96 in Robertson County, Tennessee.The complaint alleged that in constructing and maintaining the highway, at and near the vicinity of the accident, the grade and curvature of the highway was dangerous and that the State had failed to properly bank the curve or warn travelers of the dangerous condition of the road.The single car accident resulted in injuries to David Lucas that were fatal.The State, with supporting affidavits, filed a Motion for Summary Judgment asserting "discretionary function" immunity.

On November 21, 1999, Michael Collins was driving his automobile southbound along State Highway 155 (also known as Briley Parkway) and came upon a portion of the highway alleged to be known as "dead man's curve."Passengers in his vehicle were Deanna L. Collins, Bobby E. Collins and Ruth Collins.It was alleged that one Toni A. Rogers was driving her vehicle northbound on Highway 155, entered "dead man's curve," lost control of her vehicle causing it to become airborne and land on the claimant's vehicle, seriously injuring Michael E. Collins and Deanna L. Collins, and killing Bobby and Ruth Collins.The claim was filed with the Tennessee Claims Commission based upon Tennessee Code Annotated section 9-8-307 for the negligent design and maintenance of the portion of State Highway 155 called "dead man's curve."This claim was met by a Motion for Summary Judgment supported by affidavit on behalf of the State claiming discretionary function immunity.These two cases, along with two other cases not before the Court on this appeal, were consolidated sua sponte by the Claims Commission for the purpose of ruling upon separate summary judgment motions in each.

On March 2, 2002, Claims Commissioner W.R. Baker entered an extensive and carefully reasoned order construing the "immunities" provision of Tennessee Code Annotated section 9-8-307(d), distinguishingCox v. State,844 S.W.2d 173(Tenn.Ct.App.1992), declining to recognize as controlling authority the unreported decision in Waters v. State,1998 WL 880911(Tenn.Ct.App.1998) and overruling the State's motions for summary judgment based upon discretionary function immunity.¹

On April 1, 2002, the State filed in these cases a Motion to Alter or Amend or, in the alternative, for a rehearing en banc.The motion of the State for an en banc hearing before the Claims Commission was granted and, on August 5, 2002, Commissioners Randy C. Camp, Vance W. Cheek, Jr., and W.R. Baker entered an extensive and carefully considered order, once again categorizing Cox v. State,844 S.W.2d 173(Tenn.Ct.App.1992) as being obiter dicta as to the point in issue and declining to recognize Waters v. State,1998 WL 880911(Tenn.Ct.App.1998) as precedential authority under Tennessee Supreme Court Rule 4 (H)(1) and once again overruling the motions for summary judgment.

Applications for permission to appeal were filed pursuant to Tennessee Rule of Appellate Procedure 9 as to discretionary function immunity challenging the ruling of the Claims Commission.The applications were granted by the Claims Commission and this Court.The consolidated case is now before this Court for disposition.

GOVERNMENTAL (SOVEREIGN) IMMUNITY

In the case of Cooper v. Rutherford County,531 S.W.2d 783(Tenn.1975), Justice Henry mounted an impassioned assault upon the citadel of governmental immunity, which met with as much success as did Pickett's Charge up Cemetery Ridge at Gettysburg.The Justice opined in dissent:

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 [banish] 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 entities stoop to conquer their own citizens.

. . . .

I condemn sovereign immunity.I believe that justice demands, reason dictates, morality mandates and elemental consideration of conscience decree a change in confidence in the quality of justice, which according to Daniel Webster, is `man's greatest interest on earth.'Man's eternal quest for justice is of equal dignity with his search for certainty.

I would condemn this legal monstrosity to the oblivion which it so richly deserves.

Cooper v. Rutherford County,531 S.W.2d 783, 785, 792(Tenn.1975)(Henry, J., dissenting).

In the nearly three decades that have elapsed since Cooper v. Rutherford County, no successful challenge has been mounted upon the fundamental premise that the doctrine of governmental immunity in Tennessee is of common law origin.

Coffman v. City of Pulaski,220 Tenn. 642, 422 S.W.2d 429(1967) survived the attack in Cooper v. Rutherford County and remains the law of Tennessee.Therein it is said:

As to the argument that we should abolish this doctrine of immunity because it is without warrant in the common law as adopted in this State by our Constitution, (which adopted the common law of England as in force in North Carolina in 1796), it is sufficient to say that, accepting the plaintiff-in-error's own argument that the common law should be written by judges to meet the needs of the society expected to act thereunder, it lay within the power of the Supreme Court of this state to adopt and promulgate the doctrine of immunity presently under assault and the absence of an English precedent is immaterial to its validity.

Coffman v. City of Pulaski,220 Tenn. 642, 645, 422 S.W.2d 429, 431(Tenn.1967).

Once the common law origin of governmental immunity is established, the long settled rule of strict construction concerning statutes in derogation of the common law places a heavy burden on the back of a plaintiff suing a sovereign in tort.Under this rule:

It is well settled that a statute will not be construed to alter the common law, further than the act expressly declares or than is necessarily implied from the fact that it covers the whole subject-matter.Horne v. Railroad Co.,1 Cold., 77;State v. Miller, 11 Lea, 621;McCrea v. Galey,1 Tenn. 251;Eaton v. Dickinson,3 Sneed, 404;Moyers v. Brown, 10 Humph., 77;Shaw v. Merchants' National Bank of St. Louis,101 U.S., 557, 25 L.Ed., 892."

State v. Cooper,120 Tenn. 549, 553; 113 S.W. 1048, 1049(Tenn.1908);Olson v. Sharpe,235 S.W.2d 11, 12(Tenn.1950);see also, Lillienkamp v. Rippetoe,133 Tenn. 57, 63, 179 S.W. 628(1915).

We begin therefore with the premise that at common law the state was absolutely immune from tort liability as were cities and counties within the state.The immunity of the state and the separate immunities of cities and counties developed along different paths through statutory modi-fications and partial abrogations of immunity.

As to the immunity of the state, the Supreme Court of Tennessee has provided the following guidance:

As background, we think it important and significant to outline the rights of the State of Tennessee as a sovereign.According to Article I, Section 17 of the Constitution of the State of Tennessee, suits may be brought against the State in such a manner and in such courts as the Legislature may by law direct, and in no other manner.

In view of this, the Legislature has expressly provided by statute(T.C.A. § 20-1702) as follows:

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....