Lori Gregory, in her capacity as personal representative of the Estate of James ballentine v. Metropolitan Government of Nashville and Davidson County

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
June 28, 2012 Session

LORI GREGORY, IN HER CAPACITY AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF JAMES BALLENTINE
v.
METROPOLITAN GOVERNMENT OF
NASHVILLE AND DAVIDSON COUNTY

An Appeal from the Circuit Court for Davidson County
No. 11C805 Barbara N. Haynes, Judge

No. M2011-02061-COA-R3-CV - Filed October 26, 2012

This is a negligence claim under Tennessee’s Governmental Tort Liability Act. The decedent
was involved in a serious vehicular accident. A witness called the defendant municipality’s
911 emergency communications center for help. The 911 responders went to the accident
scene and transported the decedent to a local hospital, where he died. The decedent’s mother
filed this lawsuit against the municipality, alleging that the 911 operator was negligent in
failing to summon emergency personnel from a neighboring county, because those
responders were closer to the scene of the accident and could have provided aid to the
decedent sooner. The municipality filed a motion for judgment on the pleadings, arguing
inter alia that it owed no duty to summon aid outside of its jurisdiction. The trial court
granted the motion, and the plaintiff now appeals. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed

H OLLY M. K IRBY, delivered the opinion of the Court, in which D AVID R. F ARMER, J., and J.
S TEVEN S TAFFORD, J., joined.

John E. Herbison, Clarksville, Tennessee, for the Plaintiff/Appellant Lori Gregory, in her
capacity as personal representative of the Estate of James Ballentine

Saul A. Solomon, Director of Law, and Andrew D. McClanahan, James E. Robinson, and
R. Alex Dickerson, Assistant Metropolitan Attorneys, for the Defendant/Appellee
Metropolitan Government of Nashville and Davidson County
 OPINION

F ACTUAL B ACKGROUND 1

On May 30, 2010, 18-year-old James Ballentine (“decedent”) was involved in a terrible
collision in which his vehicle rolled over. The crash occurred at 5:09 p.m. on Springfield
Highway in Goodlettsville, Tennessee, located in the General Services District of Davidson
County and within sight of the boundary line between Davidson County and Robertson
County. At 5:10 p.m. and 5:11 p.m., unidentified bystanders placed emergency 911 calls to
the Emergency Communications Center of Defendant/Appellee Metropolitan Government
of Nashville and Davidson County (“Metro Government”).2 The 5:11 p.m. caller described
the scene to the 911 dispatcher: “rollover, smoke coming from vehicle, one vehicle on its
side/ believes four people pinned inside, people are trying to get the people out of the
vehicles, worried the vehicles are going to catch on fire.” The decedent was one of the
persons pinned in this vehicle. The 911 operator dispatched emergency vehicles and
personnel from Goodlettsville, which is in Davidson County. When emergency personnel
arrived on the scene, they extricated the decedent from his vehicle. He was then transported
to Vanderbilt University Hospital, where he died some 12 hours after the crash.3

On February 28, 2011, the decedent’s mother, Plaintiff/Appellant Lori Gregory (“Ms.
Gregory”), filed this lawsuit against Metro Government in the Circuit Court of Davidson
County, Tennessee. She filed as the decedent’s representative, alleging claims pursuant to
Tennessee’s Governmental Tort Liability Act (“GTLA”), Tennessee Code Annotated § 29-
20-201, et seq. She alleged in the complaint that the nearest available first responders were
not located in Davidson County, but rather were located in the cities of Ridgetop and
Greenbrier, which are located in Robertson County.4 The refusal by Metro Government to

1
The factual summary is taken from the allegations in the complaint, because this lawsuit was dismissed on
the face of the complaint.
2
Metro Government is a consolidated city and county governmental unit organized pursuant to Tennessee
Code Annotated § 7-1-101 et seq. Metro Government provides ambulance and emergency vehicle services
under the auspices of the Metropolitan Fire Department.
3
The complaint does not indicate how long it took for the Goodlettsville emergency personnel to arrive on
the scene, only that it took “several minutes” after they arrived for an ambulance to transport him to a
hospital. The complaint contains no allegation that the Goodlettsville emergency personnel acted in a
negligent manner.
4
Actually, although the great majority of the City of Ridgetop is located in Robertson County, a small portion
of it lies in Davidson County. Neither party cited this fact, and Ms. Gregory did not argue that the first
(continued...)

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summon help from these closer cities, she asserted, caused unnecessary delay that reduced
the decedent’s chances of survival or at least increased his pain and suffering. Ms. Gregory
claimed that the harm to her son caused by the delay was highly foreseeable, and she cited
similar previous incidents near the county line – some involving fatalities. The complaint
stated:

(6) The nearest municipality which could have provided emergency assistance
to the endangered occupants of these vehicles was the City of Ridgetop, which
had an emergency vehicle and trained personnel at the ready about one and a
half miles away and capable of responding to the location of the crash on
Springfield Highway within less than two minutes.

(7) The City of Greenbrier similarly had an emergency vehicle and trained
personnel at the ready a short distance away and capable of responding to the
location of the crash on Springfield Highway within less than two minutes.

(8) Despite the ready availability of emergency equipment and personnel who
could have responded sooner, personnel of the Defendant Metropolitan
Government inexplicably dispatched emergency vehicles and personnel from
locations more distant than Ridgetop and Greenbrier, resulting in a longer
response time.

(9) While awaiting the arrival of emergency medical personnel, the Plaintiff’s
decedent was trapped inside his overturned automobile, suspended upside
down by his seat belt.

(10) The Plaintiff’s decedent was extricated from his vehicle by emergency
personnel of the City of Goodlettsville. He had to wait on a stretcher, with life
threatening injuries, for several minutes for ambulance personnel of the
Defendant Metropolitan Government to transport him to the emergency room
at Vanderbilt University Hospital. On information and belief, Mr. Ballentine
was conscious and suffering during this waiting time.

4
(...continued)
responders in Ridgetop were actually located within the Metro Government’s jurisdiction. For purposes of
this appeal, we presume that the Ridgetop first responders to whom the complaint refers were located
“outside of Davidson County,” as found by the trial court.

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 (11) Despite best efforts of emergency room personnel to treat his injuries, the
Plaintiff’s decedent died at Vanderbilt Hospital approximately twelve hours
after the collision.

Ms. Gregory sought compensatory damages pursuant to the GTLA based on Metro
Government’s conduct.

In its answer, Metro Government denied liability. Subsequently, Metro Government filed
a motion for judgment on the pleadings pursuant to Rule 12.03 of the Tennessee Rules of
Civil Procedure,5 arguing that the complaint should be dismissed on its face. It asserted that
Metro Government had no duty to request emergency medical aid from either Ridgetop or
Greenbrier, because those municipalities are located in Robertson County. Metro
Government took the position that its authority to request assistance from another
governmental entity is set out in Tennessee’s Mutual Aid and Emergency and Disaster
Assistance Agreement Act of 2004 (“the Mutual Aid Act”), Tennessee Code Annotated § 58-
8-101, et seq., and contended that the Mutual Aid Act did not authorize Metro Government’s
911 operators to solicit aid from Robertson County in this situation. In the alternative, Metro
Government argued that its decision on whether to request emergency aid from another
government is a discretionary function, for which Metro Government is immune from suit
pursuant to Tennessee Code Annotated § 29-20-205(1). In a footnote in its motion for
judgment on the pleadings, Metro Government asserted that the public duty doctrine shielded
it from liability to the extent that the duty on which the plaintiff relied was a duty to the
public at large.

On July 25, 2011, Ms. Gregory filed a response to the motion to dismiss. She argued that the
Mutual Aid Act is not the exclusive vehicle through which local governments are permitted
to cooperate with one another regarding the provision of emergency services, and that the Act
did not preclude Metro Government from seeking assistance from other municipalities in this
case. She maintained that her complaint was not based on the Mutual Aid Act, but rather it
asserted “a common law claim for negligence . . . .” Metro Government’s common-law duty,
Ms. Gregory argued, was to exercise reasonable care and to avoid causing foreseeable injury
to others. “Even in the absence of a pre-existing duty, one who gratuitously undertakes to
act to assist another thereby assumes a duty to exercise reasonable care in so doing.” Once
the 911 operators answered the bystanders’ calls for assistance, she argued, they undertook
the duty to exercise reasonable care in responding to those calls. Ms. Gregory claimed that,
under the facts as alleged in the complaint, a reasonable trier of fact could have found that
the need for a rapid response was necessary, and that the 911 operator’s failure to call the

5
A motion for judgment on the pleadings may be filed “[a]fter the pleadings are closed but within such time
as not to delay the trial.” Tenn. R. Civ. P. 12.03.

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nearest first responders was negligent and/or reckless.6 Furthermore, she argued, it cannot
be determined from the four corners of the complaint whether discretionary-function
immunity shields Metro Government from liability in this case. Finally, she contended that
the public duty doctrine does not shield Metro Government from liability, because this case
falls within the special-duty exception to the doctrine. Ms. Gregory argued that, for these
reasons, the trial court should have denied the motion.

On July 29, 2011, the trial court held a hearing on Metro Government’s motion for judgment
on the pleadings.7 On August 18, 2011, the trial court entered an order granting the motion
and dismissing the complaint on its face. The trial court held that “the Metropolitan
Government had no duty to request emergency medical aid from personnel outside of
Davidson County, such as those from the City of Ridgetop or City of Greenbrier, when it
responded to the May 30, 2010 accident.” In addition, the trial court concluded that “the
decision to request or not request emergency medical aid from another government is a
discretionary function, for which the Metropolitan Government is immune pursuant to Tenn.
Code Ann. § 29-20-205(1).” Thus, the trial court granted the motion for judgment on the
pleadings and dismissed the case.8 From this order, Ms. Gregory now appeals.

ISSUES ON A PPEAL AND S TANDARD OF R EVIEW

On appeal, Ms. Gregory argues that the trial court erred in granting Metro Government’s
motion for judgment on the pleadings.

The trial court’s grant of a motion for judgment on the pleadings is “in effect a [dismissal]
for failure to state a claim upon which relief can be granted” pursuant to Rule 12.02(6) of the
Tennessee Rules of Civil Procedure. Timmins v. Lindsey, 310 S.W.3d 834, 838 (Tenn. Ct.
App. 2009). Both a Rule 12.03 motion for judgment on the pleadings and a Rule 12.02(6)
motion to dismiss for failure to state a claim test the legal sufficiency of the complaint itself.
Id.; compare Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426
(Tenn. 2011) (Rule 12.02(6)), with McLenahan v. Cooley, 806 S.W.2d 767, 769 (Tenn.
1991) (Rule 12.03). This Court has recently explained:

6
Ms. Gregory did not allege in her complaint that Metro Government’s conduct was reckless.
7
A transcript of that hearing is not included in the appellate record.
8
The trial court did not rely on the public duty doctrine in reaching its conclusion.

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 A motion filed pursuant to Tenn. R. Civ. P. 12.02(6) and a motion filed
pursuant to Tenn. R. Civ. P. 12.03 both test the legal sufficiency of the
complaint itself. Such motions do not test the strength of the plaintiff’s proof.

A complaint should not be dismissed pursuant to Rule 12.02(6) or Rule 12.03
unless it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim that would entitle him to relief.

The moving party admits the truth of all the relevant and material factual
allegations in the complaint for purposes of such a motion, but asserts that no
cause of action arises from those facts. A court reviewing a complaint being
tested by a Tenn. R. Civ. P. 12.02(6) or 12.03 motion must construe the
complaint liberally in favor of the plaintiff by taking all factual allegations in
the complaint as true, and by giving the plaintiff the benefit of all the
inferences that can be reasonably drawn from the pleaded facts.

On appeal from an order granting a Rule 12.02(6) motion or a Rule 12.03
motion, this court must, like the trial court, presume that the factual allegations
in the complaint are true, and we must review the trial court’s legal
conclusions regarding the adequacy of the complaint de novo, with no
presumption of correctness.

Gillham v. City of Mt. Pleasant, No. M2010-02506-COA-R3-CV, 2012 WL 1079333, at *5
(Tenn. Ct. App. Mar. 29, 2012) (citations omitted).

Thus, in conducting our review of the trial court’s decision, we are confined to the well-
pleaded facts in the complaint, and we give Ms. Gregory the benefit of all inferences that can
reasonably be drawn from those facts. Timmins, 310 S.W.3d at 838-39. Our review of the
trial court’s grant of judgment on the pleadings is de novo, with no presumption of
correctness in the trial court’s decision. Id.

A NALYSIS

Ms. Gregory’s primary argument is that the trial court erred in determining that Metro
Government had no duty to request emergency medical aid from personnel outside of
Davidson County when it responded to the 911 calls related to the decedent’s accident. We
consider this argument first.

Ms. Gregory first notes the well-settled principle that all persons have a broad duty to
exercise reasonable care to avoid causing foreseeable injury to others. Even in the absence

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of a pre-existing legal duty, she contends, the Metro Government 911 operator undertook to
summon help in response to the 911 calls, and the operator thereby assumed the duty to
exercise reasonable care in deciding which first responders to call for aid. In response, Metro
Government argues that the trial court correctly concluded that it had no duty to summon aid
from emergency personnel outside its jurisdiction. It claims that the Mutual Aid Act does
not authorize Metro Government to request such aid from other jurisdictions for this type of
accident. Even if it did, Metro Government argues, public policy considerations militate
against imposing a duty on Metro Government to do so under these circumstances.

In general, the GTLA provides that governmental entities, such as Metro Government, are
immune from suit unless Tennessee’s legislature has, by statute, removed that immunity. See
Tenn. Code Ann. §29-20-201 (2012); Autry v. Hooker, 304 S.W.3d 356, 362 (Tenn. Ct. App.
2009); see also Fretwell v. Chaffin, 652 S.W.2d 755, 756 (Tenn. 1983); Brown v. Hamilton
County, 126 S.W.3d 43, 46 (Tenn. Ct. App. 2003). The GTLA removes the immunity for
governmental entities as to lawsuits for injuries caused by the negligent act or omission of
an employee, with certain enumerated exceptions. Tenn. Code Ann. § 29-20-205 (2012);
Autry, 304 S.W.3d at 362. One such exception is when “the injury arises out of . . . the
exercise or performance or the failure to exercise or perform a discretionary function,
whether or not the discretion is abused.” Id. at § 29-20-205(1).

The instant lawsuit is based on a claim of common-law negligence against Metro
Government. The elements of a negligence claim are (1) a duty of care, (2) breach of the
duty of care, (3) injury or loss, (4) cause in fact, and (5) proximate or legal cause. McCall
v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995); Rathnow v. Knox County, 209 S.W.3d 629,
633 (Tenn. Ct. App. 2006). The focus of our analysis is on the “duty of care” element.
“Properly defined, duty is the legal obligation owed by defendant to plaintiff to conform to
a reasonable person standard of care for the protection against unreasonable risks of harm.”
McCall, 913 S.W.2d at 153. “Determining the existence and extent of one person’s duty to
another is a question of law to be decided by the courts.”9 GuestHouse Int’l v. Shoney’s N.
Am. Corp., 330 S.W.3d 166, 195 (Tenn. Ct. App. 2010).

Under general negligence principles, a person who undertakes to render services for another
may be liable for personal injury caused to the other by the failure to exercise reasonable
care. This precept is described in the Restatement (Second) of Torts:

9
In some situations, the nature of a defendant’s duty depends on the resolution of certain factual issues. See
Downs ex rel. Downs v. Bush, 263 S.W.3d 812, 821 (Tenn. 2008). In this case, the facts as stated in the
complaint are taken as true. Therefore, the issue of whether a duty exists on the facts as stated in the
complaint is a question of law.

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 One who undertakes . . . to render services to another which he should
recognize as necessary for the protection of a third person . . ., is subject to
liability to the third person for physical harm resulting from his failure to
exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of
such harm, or

(b) he has undertaken to perform a duty owed by the other to the
third person, or

(c) the harm is suffered because of reliance of the other or the
third person upon the undertaking.

Restatement (Second) of Torts § 324A (1965).10

With these principles in mind, we consider whether the Metro Government’s duty to use
reasonable care in assisting the decedent included the duty to summon aid from first
responders in Robertson County, who were closer to the accident site than the first
responders in Davidson County.11 The parties have cited no Tennessee case directly
addressing this issue, and we have found none. Therefore, it appears that this is an issue of
first impression in Tennessee. When presented with an issue of first impression, we look to
cases from other jurisdictions for guidance. State v. Munn, 56 S.W.3d 486, 495 (Tenn.
2001).

In support of her argument that Metro Government had a duty to the decedent in this case,
Ms. Gregory cites a case out of New York, DeLong v. County of Erie, 89 A.D.2d 376, 377

10
Section 324A of the Restatement has been cited and relied upon in cases addressing the liability of a person
for a breach of the assumed duty of reasonable care. See Lynch v. Loudon County, No. E2010-02231-COA-
R3-CV, 2011 WL 4952778, at *6 (Tenn. Ct. App. Oct. 14, 2011), perm. app. denied (Feb. 15, 2012); Dyer
v. Hill Servs. Plumbing & HVAC, No. W2009-00687-COA-R3-CV, 2010 WL 27877, at *7-8 & n.4 (Tenn.
Ct. App. Jan. 7, 2010); Barron v. Emerson Russell Maint. Co., No. W2008-01409-COA-R3-CV, 2009 WL
2340990, at *7-8 & n.5 (Tenn. Ct. App. July 30, 2009) (citing Biscan v. Brown, 160 S.W.3d 462, 483 (Tenn.
1994); Speaker v. Cates Co., 879 S.W.2d 811, 813 (Tenn.1994); Collins v. Arnold, No.
M2004-02513-COA-R3-CV, 2007 WL 4146025, at * 14 (Tenn. Ct. App. Nov. 20, 2007)).
11
Ms. Gregory does not allege in her complaint that the decedent received inadequate care from Metro
Government’s emergency personnel at the scene of the accident or that their arrival to the accident site was
unreasonably delayed. She alleges only that Metro Government was negligent in “dispatch[ing] emergency
vehicles and personnel from locations more distant than Ridgetop and Greenbrier, resulting in a longer
response time.”

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(N.Y. App. Div. 1982). In DeLong, the city and county were sued for negligence in
responding to an emergency 911 call about an intruder at a home. After receiving the call,
the 911 operator sent the emergency personnel to the wrong address. During the delay
caused by the 911 operator’s error, the decedent was stabbed to death by the intruder. The
decedent’s representative filed a wrongful death lawsuit, and the case was tried before a jury.
The jury determined that the municipalities were liable for the decedent’s death based on the
negligent response to the 911 call. DeLong, 89 A.D.2d at 377. The appellate court upheld
the verdict, concluding that the municipalities owed a duty to the decedent because they
undertook to assist her during the emergency. The court reasoned that while the
establishment of the 911 emergency call system did not create the duty, “[i]t is the holding
out of the 911 number as one to be called by someone in need of assistance . . . . This
voluntary assumption of a duty to act carried with it the obligation to act with reasonable
care.” Id. at 384 (citations omitted).

Ms. Gregory also cites a Tennessee case, Lindsey v. Miami Development Corp., 689 S.W.2d
856 (Tenn. 1985). In that case, the decedent jumped off a balcony at the defendant’s
residence. After the decedent jumped, the defendant told those gathered around to “wait a
while before you call an ambulance.” Lindsey, 689 S.W.2d at 858. The decedent died
because of the delay in medical care after the accident, and the decedent’s representative filed
a wrongful death lawsuit against the defendant residence owner. The trial court granted
summary judgment in favor of the defendant, holding that he owed no duty to render aid to
the decedent. The Supreme Court of Tennessee reversed, concluding that the defendant
owed a duty to the decedent because the defendant stood in a special relationship with the
decedent, as host and social guest. Beyond that holding, the Court also stated: “[E]ven if no
relationship had existed between [the decedent] and the Defendant, the Defendant assumed
control of the situation which placed him under the obligation to exercise reasonable care to
render aid to [the decedent].” Id. at 860.

Relying on both DeLong and Lindsey, Ms. Gregory argues that, by undertaking to assist the
decedent, Metro Government’s 911 operator assumed the duty to act with reasonable care
in responding to the calls. She claims that the operator’s failure to summon the assistance
of the closest first responders was the “functional equivalent of directing others to ‘wait a
while before you call an ambulance,’” as in the case of Lindsey. Under these circumstances,
Ms. Gregory argues, Metro Government had a duty of reasonable care to the decedent, and
a reasonable trier of fact could find that the duty was breached by the failure to summon the
closest first responders, even if outside the jurisdiction.

In response to Ms. Gregory’s argument, Metro Government claims, as it did in the trial court,
that its duty to work with other local governments in rendering emergency aid is governed
by the Mutual Aid Act. The Mutual Aid Act addresses the manner in which governmental

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entities may enter into agreements to provide mutual assistance in the event of an
“occurrence.” An “occurrence” is defined as “the imminent threat of an event or an actual
event and its aftermath, whether natural or man-made, that could lead to substantial bodily
injury or property damage and that could lead to the declaration of a state of emergency.” 12
Tenn. Code Ann. § 58-8-102(9) (Supp. 2012). The Act provides that, in the event of an
“occurrence,” the governmental entity may request aid outside its jurisdiction:

(a) When a governmental entity is affected by an occurrence that its resources
will not be adequate to handle, the governmental entity may request aid
through the appropriate emergency management employee or official, or a
county or municipality may declare a local state of emergency as provided in
§ 58-8-104 and request assistance by communicating the request to a potential
responding party or multiple potential responding parties. Requests for aid or
for assistance must be made by the appropriate official or employee to the
emergency communications dispatch center of potential responding parties or
other officials authorized by the potentially responding party to respond to
requests under this chapter.

Id. § 58-8-105(a) (Supp. 2012). The Act states specifically that it does not create a duty on
participating governments to respond to any requests for aid, and that the responding
governments retain the discretion over whether and to what extent to give the aid requested.
See id. § 58-8-107(a) (Supp. 2012) (“This chapter does not create a duty on participating
governmental entities to respond to a request for aid or assistance nor to stay at the scene of
an occurrence or emergency for any length of time.”). The express purpose of the legislation
is “to authorize mutual aid and to enhance public safety and homeland security by facilitating
assistance among governmental entities in any state of emergency or declared disaster while
conforming to federal guidelines relative to reimbursement costs for assistance rendered.”
Id. at 58-8-103(c) (Supp. 2012). Metro Government notes that Section 58-8-105 of the
Mutual Aid Act provides the default rules governing the request for and receipt of aid among
local governments. It gives authority to request aid only in the event of a flood, earthquake,
tornado, or other type of “occurrence.”13 Because the Act includes no provision for

12
In a somewhat circular fashion, an “emergency” is defined in the Act as an occurrence or threat of an
occurrence that actually results in a declaration of a state of emergency. Id. at § 58-8-102(5).
13
At oral argument, Metro Government pointed out that, on May 10, 2011, after the appellate briefs were
filed in this case, the General Assembly adopted amendments to the Mutual Aid Act to include specific
authority to request and provide aid in less serious situations. Section 58-8-105 was amended to add
paragraph (e), which specifically authorizes counties to request such aid “from the emergency
communications dispatch center” of a contiguous county for an occurrence that does not involve life-
(continued...)

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requesting aid from other governments in less serious situations, Metro Government
contends, then it did not authorize Metro Government to request aid or assistance from
another local government under the circumstances in this case. Even if it were authorized
to request aid outside its jurisdiction in this case, Metro Government argues, any decision
regarding whether to do so would be discretionary, not mandatory.

In reply to this argument, Ms. Gregory maintains that the language in the Mutual Aid Act is
not determinative of Metro Government’s duty in this situation. She claims that, even
assuming that Metro Government and Robertson County had no written agreement to provide
each other mutual aid,14 this did not preclude the Metro Government 911 operator from
summoning help from Robertson County in this case. She emphasizes that the complaint did
not allege the breach of any statutory duty; rather, it asserted “a common law claim for
negligence.” Therefore, she argues, regardless of the language in the Mutual Aid Act, this
Court must recognize that the Metro Government 911 operator had a common-law duty to
summon aid from the nearest responders under the facts in this case.

We agree that the Mutual Aid Act is not determinative of the issue presented here. The Act
does not preclude a 911 operator in one county from summoning aid from the emergency
communications dispatch center in another county, regardless of whether there is a written
mutual aid agreement between the two local governments. Metro Government’s argument

13
(...continued)
threatening injuries:

(e) . . . [A] governmental entity is authorized to request mutual aid for emergency medical
services provided under Title 68, Chapter 140, from the emergency communications
dispatch center of a county that is contiguous to the requesting county or governmental
entity for occurrences that involve serious injuries or possible loss of life in instances that
might not reasonably lead to a declared emergency.

As a corollary, Section 58-8-107 was amended to allow a governmental entity to respond to a request for aid
made under this new subsection, and also to specifically authorize counties to “permit routine and automatic
approval of and response to such requests.” See 2012 Tenn. Laws Pub. Ch. 906 (S.B. 68), 2012 Session of
the 107th Gen. Assembly. These provisions, of course, were not in effect during the pertinent time period
in this appeal. We express no opinion on whether in what ways this amendment would change our analysis
or the outcome of this appeal.
14
Tennessee statutes authorize local governments to enter into mutual aid agreements. See, e.g., Tenn. Code
Ann. § 6-54-307 (police department services); § 6-54-601 (fire department services). The recent amendments
to the Mutual Aid Act also reference such agreements. The complaint in this case, however, made no
reference to any such agreement between Metro Government and Robertson County. As we are addressing
Metro Government’s motion for judgment on the pleadings, we consider only the facts alleged in the
complaint.

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relies on a negative inference from the language in the Mutual Aid Act specifically
authorizing a governmental entity to request aid in the event of an “occurrence.” It argues,
in effect, that by authorizing a request for assistance in the event of an “occurrence,” the Act
precludes a governmental entity from requesting aid in a less emergent situation. We decline
to draw such a negative inference from the language in the Mutual Aid Act. The purpose of
the legislation is to “enhance public safety” and to “facilitate assistance among governmental
entities,” so interpreting the Act to preclude a governmental entity from requesting aid from
another such entity would be antithetical to that purpose. Id. at § 58-8-103(c).

By the same token, the Act does not require Metro Government to request aid from a
neighboring county in any given situation. Rather, the legislation outlines how local
governments may enter into agreements in advance of an emergency in a way that will be
mutually beneficial, and it is based on the premise that aid between local governments should
be the result of negotiation and cooperation. The permissive language in the Act indicates
that the government from which aid is requested has sole discretion over whether to provide
aid to the requesting government and the extent of any such aid that may be provided. Id.
at § 58-8-107. Considering the Mutual Aid Act as a whole, we find that the Act neither
required Metro Government to request aid from outside its jurisdiction nor precluded Metro
Government from doing so. Thus, the Mutual Aid Act is not dispositive of the issues
presented in this appeal.

Because the question of Metro Government’s duty is not resolved by reference to the Mutual
Aid Act, we go on to consider whether Metro Government had a common-law duty to
summon aid from neighboring Robertson County under the facts in this case. “In any action
grounded in negligence, the existence or nonexistence of a duty . . . ‘is entirely a question of
law, to be determined by reference to the body of statutes, rules, principles, and precedents
which make up the law.’” Dill v. Gamble Asphalt Materials, 594 S.W.2d 719, 721 (Tenn.
Ct. App. 1979) (citing W. Prosser, Law of Torts, § 37 (4th ed. 1971)). The Tennessee
Supreme Court has outlined the process for determining whether a common law duty exists:

In most cases today, prior court decisions and statutes have already
established the doctrines and rules governing a defendant’s conduct.
Generally, the presence or absence of a duty is a given rather than a matter of
reasoned debate, discussion, or contention. The common law, however, must
and does grow to accommodate new societal realities and values—or simply
better reasoning—as it moves toward refinement and modification with the
aim of improving while maintaining a sufficient stability so as to seek, and one
hopes, to find, prudent reformation as opposed to anarchic revolution.
When the existence of a particular duty is not a given or when the rules of the
established precedents are not readily applicable, courts will turn to public

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 policy for guidance. Doing so necessarily favors imposing a duty of
reasonable care where a “defendant’s conduct poses an unreasonable and
foreseeable risk of harm to persons or property.” McCall v. Wilder, 913
S.W.2d at 153. When conducting this analysis, the courts have considered,
among other factors: (1) the foreseeable probability of the harm or injury
occurring; (2) the possible magnitude of the potential harm or injury; (3) the
importance or social value of the activity engaged in by the defendant; (4) the
usefulness of the conduct to the defendant; (5) the feasibility of alternative
conduct that is safer; (6) the relative costs and burdens associated with that
safer conduct; (7) the relative usefulness of the safer conduct; and (8) the
relative safety of alternative conduct. Burroughs v. Magee, 118 S.W.3d at
329; McCall v. Wilder, 913 S.W.2d at 153.

Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 365 (Tenn. 2008) (footnote
omitted).

The California case of Dragoo v. Niland Fire District of Imperial County, cited by Metro
Government, discusses the public policy concerns at issue in analyzing the question of duty
under circumstances such as those presented in this case.15 Dragoo v. Niland Fire Dist. of
Imperial County, No. D057565, 2011 WL 3299930 (Cal. 4 th Dist. Ct. App. Aug. 2, 2011).
In Dragoo, the Niland Fire District received a 911 call indicating that a victim was being
attacked by a swarm of Africanized bees.16 Although the Niland Fire District had a mutual
aid agreement with the Calipatria Fire District, the Niland Fire District did not initially seek
the assistance of the Calipatria Fire District in response to the emergency. Instead, several
Niland Fire District personnel responded to the call. They did not, however, bring
appropriate equipment, and they too were attacked and disabled by the swarm of bees.
Finally, the Niland Fire District contacted the Calipatria Fire District, which responded to aid
both the initial victim and the injured Niland emergency personnel. The victim later died
from the bee attack. Id. at *1.

The victim’s representative filed a lawsuit against the Niland Fire District, asserting
negligence. The Niland Fire District sought dismissal of the complaint, alleging that it owed
no duty to even respond to the 911 call, and therefore it had no duty to render aid to the
victim or to call another fire department to provide such aid. Id. In response, the plaintiff

15
The Dragoo case is designated as “Nonpublished/Noncitable” under California law. We are mindful of
this designation, but consider as persuasive the Dragoo Court’s discussion of the somewhat unique policy
considerations presented in the instant case.
16
Africanized bees, sometimes referred to as “killer bees,” are known to be unusually aggressive.

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argued that the Niland Fire District, by undertaking to assist the victim, created a special
relationship with the victim, thereby creating a duty to the victim. The trial court granted the
motion to dismiss, and the plaintiff appealed. Id.

The appellate court in Dragoo addressed the issue of whether a local government has the
duty to use all available resources in responding to a 911 call. Id. at *3. The California court
recognized that, under California jurisprudence, every person has a duty to exercise ordinary
care, and the issue was whether consideration of numerous applicable factors “justifies an
exemption from the general duty of care for the class of actors to which the defendant
belonged.” Dragoo, 2001 WL 3299930, at *2. In addressing the issue, the Dragoo court
considered a number of public policy considerations, including:

. . . the foreseeability of harm to the plaintiff, the degree of certainty that the
plaintiff suffered injury, the closeness of the connection between the
defendant’s conduct and the injury suffered, the mortal blame attached to the
defendant’s conduct, the extent of the burden to the defendant and
consequences to the community of imposing a duty to exercise care with
resulting liability for the breach, and the availability, cost, and prevalence of
insurance for the risk involved.

Id. at *2 (quoting Cabral v. Ralphs Grocery Co., 51 Cal. 4 th 764, 771 (2011) (citations
omitted)). The court clarified that the issue was a broad one; it did not consider whether the
factors supported an exception to the general duty of reasonable care under the facts of the
particular case, but instead whether they “justif[ied] carving out an entire category of cases
from that general duty rule . . . .” Id. (quoting Cabral, 51 Cal. 4 th at 772). This distinction
was made to “preserve the crucial distinction between a determination that the defendant
owed the plaintiff no duty of ordinary care, which is for the court to make, and a
determination that the defendant did not breach the duty of ordinary care, which in a jury trial
is for the jury to make.” Id. (quoting Cabral, 51 Cal. 4th at 772 (emphasis in original)).

The Dragoo court found that the relevant factors weighed in favor of holding that the Niland
Fire District’s duty of care did not include the decision of whether to respond to the 911 call
with every available resource:

We do not believe that, whenever a 911 call is received, the decision to employ
less than every available resource is sufficiently likely to result in the
exacerbation of the plight of the person in peril so that liability may
appropriately be imposed if emergency responders do not commit all available
resources to every call. Deciding to send every available responder may
provide some incrementally better response in some cases, but as a general

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 rule the decision to send fewer responders is not sufficiently likely to result in
worsening the plight of the victim so that liability may appropriately be
imposed.

Id. at *3 (emphasis in original). The appellate court also held that other public policy
considerations weighed in favor of immunizing first responders from liability for responding
to 911 calls with fewer than all of the available resources:

The policy of preventing future harm, the extent of the burden to the
defendant, and consequences to the community if rescuers must devote all
available resources to respond to a 911 call (to insure they will not face
liability for responding to that call) also militate in favor of creating a duty
“exception” which immunizes rescuers from liability when they respond to 911
calls with fewer than all available resources. First, it would discourage
emergency personnel from responding to 911 calls at all unless they could
accurately predict, in advance of responding to the call, that a limited team
could respond and achieve the best possible result for the victim. Absent such
a guarantee, emergency responders could only be assured of immunity from
liability by (1) ignoring the call (because there is no duty to respond) or (2)
committing all available resources to responding to the call (to avoid the
retrospective arguments that some other response with more personnel would
have been more effective). (Cf. Williams, supra, 34 Cal.3d at p. 30 (conc. and
dis. opn. of Mosk, J.) [“No matter which of the several alternatives [the
emergency responders] selected, someone could persuasively argue that
another [alternative was better]. This scenario lends itself to typical
Monday-morning quarterbacking.”].)

Id. at *5 (emphasis in original; footnote omitted). Thus, the appellate court held that
imposing a duty on a governmental entity to enlist all available resources in any given
situation would result in either a choice not to respond to 911 calls at all, unless they could
predict that a limited team could achieve the best result, or a choice to commit all available
resources to every call, in order to avoid potential liability. Such a ruling, the court observed,
would invite “Monday-morning quarterbacking” that would ultimately create negative
consequences to the community. See id. (quoting Williams v. State of California, 664 P.2d
137, 144 (Cal. 1983) (Mosk, J., concurring and dissenting)).

We agree with the analysis of the public policy considerations discussed in Dragoo.
Allowing courts to second-guess a governmental entity’s decisions on whether to commit any
and all available public resources in a given situation would ultimately cripple the
governmental entity’s ability to effectively marshal limited resources and personnel. Under

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the facts in this case, we hold that Metro Government did not have a duty to request the
assistance of emergency responders from Robertson County. On this basis, we affirm the
trial court’s decision to grant Metro Government’s motion for judgment on the pleadings.

This holding pretermits all other issues raised on appeal, including the issues involving
discretionary-function immunity and the public duty doctrine.

C ONCLUSION

The decision of the trial court is affirmed. Costs on appeal are to be taxed to Appellant Lori
Gregory and her surety, for which execution may issue, if necessary.

_________________________________
HOLLY M. KIRBY, JUDGE

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