Stewart v. State

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
October 4, 2000 Session

LARRY W. STEWART v. STATE OF TENNESSEE

Appeal by Permission from the Court of Appeals, Middle Section
Tennessee Claims Commission, Middle Division
No. 10917201 Hon. W.R. Baker, Commissioner

No. M1998-00304-SC-R11-CV - Filed December 20, 2000

In this case, we determine whether the Tennessee Claims Commission properly asserted jurisdiction
pursuant to Tennessee Code Annotated sections 9-8-307(a)(1)(E) and -307(a)(1)(F) for the alleged
negligence of a state highway patrol officer in failing to properly control county police authorities
at an arrest scene. The Court of Appeals affirmed the Commission’s exercise of jurisdiction, and
the State requested permission to appeal on the issue of whether the Claims Commission properly
asserted jurisdiction and whether the plaintiff, who stepped into the road before being hit by the
truck, was fifty percent (50%) or more at fault for his accident. We hold that the Claims
Commission lacked jurisdiction in this case under either section 9-8-307(a)(1)(E) or section 9-8-
307(a)(1)(F), and because the Claims Commission possessed no jurisdiction to hear the plaintiff’s
claims, we decline to reach the issue of whether the plaintiff was more than fifty percent (50%) at
fault for his accident. Accordingly, the judgment of the Court of Appeals finding proper jurisdiction
is reversed, and the plaintiff’s claim against the State is dismissed.

Tenn. R. App. P. 11 Application for Permission to Appeal; Judgment of the Court of
Appeals Reversed; Claim Dismissed

WILLIAM M. BARKER, J., delivered the opinion of the court, in which E. RILEY ANDERSON, C.J., and
FRANK F. DROWOTA, III, ADOLPHO A. BIRCH, JR., and JANICE M. HOLDER, JJ., joined.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Laura T.
Kidwell, Assistant Attorney General, Nashville, Tennessee, for the appellant, State of Tennessee.

Randy Hillhouse, Lawrenceburg, Tennessee, for the appellee, Larry W. Stewart.

OPINION
 Shortly before midnight on September 20, 1991, Tennessee Highway Patrol Officer Billy Ray
was on duty in Hohenwald, Tennessee, when he received a radio dispatch from the Lewis County
Sheriff’s Department notifying him that a blue 1974 Chevy Nova was speeding on Highway 99.
Trooper Ray set up a radar station, and within minutes, he saw the car speed by at about 80 miles per
hour. Ray activated his emergency lights and siren, and he stopped the car on an incline heading
west away from Hohenwald. Trooper Ray parked his patrol car behind the Nova.

After arresting the driver of the Nova for speeding and driving on a revoked license, Ray
placed him in the back seat of his cruiser. In the meantime, two deputies and three reserve deputies
from the Lewis County Sheriff’s Department arrived in two patrol cars and parked behind Ray’s
vehicle on the right shoulder of the highway. Although Trooper Ray had not summoned the other
county deputies or otherwise requested their assistance, the deputies stated that they were responding
to the same dispatch that was received by Ray.

After the driver of the Nova was arrested, he requested that Ray release the Nova into the
custody of the passenger in the car. Trooper Ray complied with the driver’s request after confirming
that the passenger had a valid driver’s license and was otherwise competent to drive. As Ray was
in the process of releasing the Nova into the custody of the passenger, the Nova slipped out of gear
and began to roll backwards down the incline toward Ray’s cruiser. A Lewis County deputy leaped
into the car and applied the brake, thereby preventing a collision with Ray’s patrol car.

The passenger then asked the Lewis County deputy, who was still in the car, to steer the Nova
to the opposite shoulder of the highway so that she could drive the car to its owner in Hohenwald.
In the process of turning the Nova around, the Nova stalled in the middle of the highway and would
not restart. Three of the county deputies, including the plaintiff, reserve deputy Larry Stewart, then
pushed the stalled car to the other shoulder. After the deputies tried unsuccessfully to restart the car,
Trooper Ray permitted the former driver of the car to attempt to start the car, but he was also
unsuccessful.

Because the car was now parked on a downward slope, the county deputies, who were unsure
as to whether the car would slip out of gear again, decided to roll the car to the bottom of the hill
where it could rest safely. Apparently, one of the deputies was steering the car, one deputy was
pushing the car from behind, and the plaintiff was pushing the car somewhere near the driver’s side
door. As the car was being pushed to the bottom of the hill, the passenger asked one of the county
deputies to take her into Hohenwald to notify the owner of the car of its condition. Trooper Ray then
prepared to pull his patrol car in behind the Nova to provide any needed assistance once the owner
arrived.

Shortly after the Nova reached the bottom of the incline, the plaintiff started to walk back
across the road when he was struck by a pick-up truck traveling into town. The impact knocked the
plaintiff almost ninety feet away into a guard rail. Although the plaintiff miraculously survived the
impact, he suffered substantial injuries to his head resulting in permanent and irreversible brain
damage. The plaintiff also suffered, among other things, a severe fracture to his spine and significant

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injuries to his kidneys. After the plaintiff was struck, Trooper Ray notified the dispatcher to send
an ambulance, and he pulled his patrol car behind the Nova on the other side of the road. In the
meantime, county deputies notified the city police department and diverted traffic away from the
accident site. Less than six minutes had elapsed from the time of Trooper Ray’s release of the Nova
to the plaintiff’s accident.

On July 21, 1993, the plaintiff filed his formal claim with the Tennessee Claims Commission
alleging that his injuries were proximately caused by Trooper Ray’s negligence in not calling a tow-
truck for the disabled car and in failing to properly control traffic around the arrest scene.1 Eight
months later in March of 1994, the State filed a motion to dismiss the claim for failure to allege any
grounds of liability within the permissible categories of claims listed in Tennessee Code Annotated
section 9-8-307(a)(1). In response, the plaintiff moved to amend his claim to allege that the officer’s
alleged negligence fell within three specific categories of liability: (1) negligent care, custody, or
control of personal property under section -307(a)(1)(F) based on Ray’s “negligent release of custody
of the vehicle” and negligence “in refusing to call a wrecker to remove the car”; (2) negligent
operation or maintenance of any motor vehicle under section -307(a)(1)(A) “since the operation of
the vehicle by the deputies was under the direction and supervision of the Tennessee Highway
Patrol”; and (3) actions resulting in a dangerous condition on state-maintained highways under
section -307(a)(1)(J) based on Ray’s “failure to adequately control and maintain an arrest scene.”
The Commission granted the plaintiff’s motion to amend and denied the State’s motion to dismiss,
finding that a sufficient jurisdictional basis had been alleged.

Over four years later, the plaintiff’s claim was heard before the Commission. After hearing
testimony from several witnesses, the commissioner concluded that the issue of whether Trooper Ray
was in control of the arrest scene had to be determined by the “actual facts of what went on out
there.” He then concluded that no one was in charge “[b]ecause these people all knew each other,
and they all deferred to each other.” The commissioner also concluded that Trooper Ray was not
negligent in failing to call a tow truck because a general order from the Department of Safety
directed Ray to follow the wishes of the driver in disposing of the vehicle. Finally, the commissioner
concluded that the car was not in the custody of Trooper Ray at the time of the plaintiff’s accident

1
The plaintiff originally filed his claim on June 23, 1992, against the State of Tennessee in the Divisio n of
Claims Administration. In this original claim, the plaintiff alleged two separate grounds for relief against the State: (1)
that “Troop er Ray was n egligent in failin g to call a wrecker to tow in the disabled vehicle”; and (2) that Ray was
negligent in “failing to warn o n-coming tra ffic of highway obstructions.” The Division of Claims took no action on the
claim, and the claim was forwarded to the Tennessee Claims Commission on September 21, 1992.
In the complaint filed before the Tennessee Claims Commission, the plaintiff alleged that the State “wa s guilty
of the following sp ecific acts of negligen ce”: (1) “that the State of Te nnessee did not prop erly control the arrest scene”;
(2) “that the State of Tennessee should not have instructed the claimant to attempt to move the vehicle in the fashion he
was directed to”; (3) “that the State Highway Patrol Officer at the scene did not have proper equipment or manpower
available to adequately control and maintain the arrest scene”; and (4) “that the State Highway Patrol Officer was
negligent in no t calling an autho rized wrec ker to remo ve the autom obile in que stion from the r oadway.”
The plaintiff also filed a claim for damages against Lewis County and the Lewis County Sheriff’s Department
in the Lewis Co unty Circuit Co urt. This claim against these two defendants was later settled, and the only issue before
the Claims C ommission was that of the Sta te’s alleged neg ligence.

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because Ray had previously released custody and control of the car pursuant to the driver’s wishes.

Despite concluding that Trooper Ray had no actual control over the scene and that Ray did
not have actual custody of the car at the time of the plaintiff’s accident, the commissioner assessed
ten percent (10%) fault against the State of Tennessee for the “negligence of Mr. Ray because he
could have and ought to have stepped in and taken charge of this situation more strongly than he
did.” The commissioner also stated that “[t]he only thing more that Mr. Ray could have done that
he ought to have done that he failed to have done . . . is to say to a bunch of volunteer deputies in the
middle of the night, you all shut up and go sit down . . . .” Although he found liability on the part
of the State, the commissioner did not specify the provision(s) of section 9-8-307(a)(1) under which
he was imposing liability. Finally, the commissioner found the plaintiff’s damages to be $300,000,
and he assessed the remaining fault as follows: seventy percent (70%) to the driver of the pickup
truck which struck the plaintiff; twelve percent (12%) to the plaintiff; and eight percent (8%) to the
other Lewis County deputies.

On appeal to the Court of Appeals, the State argued that any negligence of a state trooper in
failing to supervise county deputies did not fall within any provision of section 9-8-307(a)(1), and
that as such, the Claims Commission was without jurisdiction to assess fault against the State. The
intermediate court disagreed, holding that the findings of the commissioner fell within the category
of “negligent care, custody, and control of persons” under section -307(a)(1)(E) and within the
category of “negligent care, custody or control of personal property” under section -307(a)(1)(F).
The Court of Appeals also found that the evidence in this case supported the commissioner’s
findings that Trooper Ray was negligent, that such negligence was the proximate cause of the
plaintiff’s injuries, and that the evidence did not preponderate against the commissioner’s
apportionment of fault to the plaintiff.

The State then requested permission to appeal to this Court, which was granted on the
following three issues: (1) whether the State can be held liable under Tennessee Code Annotated
section 9-8-307(a)(1)(E) for the failure of a state trooper to adequately supervise sheriff’s deputies
at the scene of the arrest; (2) whether the State can be held liable under Tennessee Code Annotated
section 9-8-307(a)(1)(F) for personal injuries suffered by a deputy sheriff arising out of a state
trooper’s negligent control of personal property (a disabled car); and (3) whether the evidence
preponderates against the assessment of twelve percent (12%) fault to the plaintiff. For the reasons
given herein, we hold that the Tennessee Claims Commission improperly exercised jurisdiction
under either section 9-8-307(a)(1)(E) or section 9-8-307(a)(1)(F) to award a monetary claim against
the State of Tennessee. Because we hold that the Claims Commission was without jurisdiction in
this case, we decline to reach the question of whether the evidence preponderates against the
commissioner’s finding that the plaintiff was twelve percent (12%) at fault for his own injuries.
Accordingly, we reverse the judgment of the Court of Appeals and dismiss the plaintiff’s claim
against the State of Tennessee.

JURISDICTION OF THE CLAIMS COMMISSION

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 It is a well-settled principle of constitutional and statutory law in this state that “[t]he State
of Tennessee, as a sovereign, is immune from suit except as it consents to be sued.” Brewington v.
Brewington, 215 Tenn. 475, 480, 387 S.W.2d 777, 779 (1965). This doctrine of sovereign immunity
“has been a part of the common law of Tennessee for more than a century and [it] provides that suit
may not be brought against a governmental entity unless that governmental entity has consented to
be sued.” Hawks v. City of Westmoreland, 960 S.W.2d 10, 14 (Tenn. 1997). Despite this general
grant of immunity, however, the courts of this state have frequently recognized that the Tennessee
Constitution has modified this rule of absolute sovereign immunity by providing that “[s]uits may
be brought against the State in such manner and in such courts as the Legislature may by law direct.”
Tenn. Const. art. I, § 17; see also Kirby v. Macon County, 892 S.W.2d 403, 406 (Tenn. 1995).

Pursuant to its constitutional power to provide for suits against the state, the legislature
created the Tennessee Claims Commission in 1984 to hear and adjudicate certain monetary claims
against the State of Tennessee. See Tenn. Code Ann. §§ 9-8-301 to -307 (1999). While the Claims
Commission has exclusive jurisdiction to hear claims arising against the state, cf. Tenn. Code Ann.
§ 20-13-102(a) (1994),2 this jurisdiction is limited only to those claims specified in Tennessee Code
Annotated section 9-8-307(a). If a claim falls outside of the categories specified in section 9-8-
307(a), then the state retains its immunity from suit, and a claimant may not seek relief from the
state. Cf. Hill v. Beeler, 199 Tenn. 325, 329, 286 S.W.2d 868, 869 (1956) (stating that “except as
the Legislature of the State consents there is no jurisdiction in this Board of Claims to entertain suits
against the State”).

The courts of this state have traditionally held that any statute granting jurisdiction to hear
a claim against the state must be strictly construed, as any such statute is in derogation of the
common law rule of sovereign immunity. See, e.g., Norman v. Tennessee State Bd. of Claims, 533
S.W.2d 719, 722 (Tenn. 1975) (“We further recognize that the statutory provisions governing the
Board of Claims have been strictly construed, in view of the fact that they do represent an
encroachment upon the sovereign immunity and upon the assets of the State.”); State ex rel. Allen
v. Cook, 171 Tenn. 605, 609, 106 S.W.2d 858, 860 (1937) (“Statutes passed by the Legislature,
under the authority of article 1, section 17, of the Constitution, permitting suits against the state,
being in derogation of the sovereign’s exemption from suits, must be strictly construed.”).
Nevertheless, in 1985, the General Assembly amended section 9-8-307(a) to express its intention as
to the jurisdictional reach of the Claims Commission: “It is the intent of the general assembly that
the jurisdiction of the claims commission be liberally construed to implement the remedial purposes
of this legislation.” Tenn. Code Ann. § 9-8-307(a)(3).

2
Tennesse e Code Annotated section 20 -13-102 (a) provid es that
[n]o court in the state shall have any power, jurisdiction, or authority to entertain any suit against the
state, or against any o fficer of the state acting by autho rity of the state, with a view to reach the state,
its treasury, funds, o r proper ty, 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.

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 Hence, although we have traditionally given a strict construction to the scope of the
Commission’s jurisdiction, we also recognize that our primary goal in interpreting statutes is “to
ascertain and give effect to the intention and purpose of the legislature.” Gleaves v. Checker Cab
Transit Corp., Inc., 15 S.W.3d 799, 802 (Tenn. 2000) (citing Carson Creek Vacation Resorts, Inc.
v. State Dep’t of Revenue, 865 S.W.2d 1, 2 (Tenn.1993)). If the legislature intends that its statutes
waiving sovereign immunity are to “be liberally construed,” then the courts should generally defer
to this expressed intention in cases where the statutory language legitimately admits of various
interpretations. A policy of liberal construction of statutes, however, only requires this Court to give
“the most favorable view in support of the petitioner’s claim,” Brady v. Reed, 186 Tenn. 556, 563,
212 S.W.2d 378, 381 (1948), and such a policy “does not authorize the amendment, alteration or
extension of its provisions beyond [the statute’s] obvious meaning.” Pollard v. Knox County, 886
S.W.2d 759, 760 (Tenn. 1994). Moreover, “[w]here a right of action is dependent upon the
provisions of a statute . . . we are not privileged to create such a right under the guise of a liberal
interpretation of it.” Hamby v. McDaniel, 559 S.W.2d 774, 777 (Tenn. 1977).

Accordingly, when deciding whether a claim is within the proper statutory scope of the
Commission’s jurisdiction to hear and decide claims against the State of Tennessee, we will give a
liberal construction in favor of jurisdiction, but only so long as (1) the particular grant of jurisdiction
is ambiguous and admits of several constructions, and (2) the “most favorable view in support of the
petitioner’s claim” is not clearly contrary to the statutory language used by the General Assembly.
Cf. Northland Ins. Co. v. State, __ S.W.3d __, __ (Tenn. 2000) (“The statute’s liberal construction
mandate allows courts to more broadly and expansively interpret the concepts and provisions within
its text.”). Furthermore, because issues of statutory construction are questions of law, see Wakefield
v. Crawley, 6 S.W.3d 442, 445 (Tenn. 1999); Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593,
599 (Tenn. 1999), we review the issues involving the jurisdiction of the Claims Commission de novo
without any presumption that the legal determinations of the commissioner were correct. See
Northland Ins. Co., __ S.W.3d at __; Ardis Mobile Home Park v. State, 910 S.W.2d 863, 865 (Tenn.
Ct. App. 1995).

Liability for Negligent Care, Custody, and Control of Persons

The Court of Appeals held that the Claims Commission properly exercised jurisdiction in this
case pursuant to Tennessee Code Annotated section 9-8-307(a)(1)(E), which authorizes claims
against the state for the “[n]egligent care, custody and control of persons.” According to the
intermediate court, the evidence supported the commissioner’s finding that Trooper Ray was
negligent in failing “to take sharper, firmer control” of the county deputies at the arrest scene, and
that as such, the trooper’s negligence clearly supported jurisdiction under section -307(a)(1)(E).
Before this Court, the State argues that a claim of negligent supervision of county deputies by a state
trooper cannot fall within this grant of jurisdiction because there is simply no duty on the part of a
state trooper to assume control over local police authorities at the scene of an arrest. We agree with
the State.

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 No provision of section 9-8-307(a)(1) specifically defines under what circumstances the state
may be held liable for injuries resulting from the “[n]egligent care, custody and control of persons.”
An examination of the cases dealing with this grant of jurisdiction, though, makes clear that liability
may be imposed for injuries to persons confined in penal institutions, residences, or health facilities
maintained by the state. See Learue by Learue v. State, 757 S.W.2d 3, 5 (Tenn. Ct. App. 1987). It
is also well established that liability may be imposed for injuries to third persons caused by those
persons for whom the state has responsibility. See Hembree v. State, 925 S.W.2d 513, 517 (Tenn.
1996); Cox v. State, 844 S.W.2d 173 (Tenn. Ct. App. 1992).

The question in this case, therefore, becomes whether Trooper Ray had a legal duty to
exercise reasonable care in the care, custody, and control of county deputies at an arrest scene. The
State first argues that unlike other subsections in section -307(a)(1), section -307(a)(1)(E) is worded
in the conjunctive with the word “and”; therefore for jurisdiction to exist in this case, the State
contends that Trooper Ray must have been negligent in his care of the deputies, in his custody of the
deputies, and in his control over the deputies. Cf. Tenn. Code Ann. § 9-8-307(a)(1)(F) (listing the
requirements in the disjunctive with the word “or”); -307(a)(1)(G) (listing the requirements in the
disjunctive with the word “or”). The State then argues that because the plaintiff does not allege that
Trooper Ray had responsibility for the care or custody of the local deputies, the Claims Commission
could not have properly exercised jurisdiction.

The State is correct in asserting that statutory phrases separated by the word “and” are usually
to be interpreted in the conjunctive. Cf. Tennessee Manufactured Hous. Ass’n v. Metropolitan Gov’t
of Nashville, 798 S.W.2d 254, 257 (Tenn. Ct. App. 1990) (stating that the word “‘and’ is a
conjunctive article indicating that the portions of the sentence it connects should be construed
together”). Nevertheless, this Court has also recognized that the word “and” can also be construed
in the disjunctive where such a construction is necessary to further the intent of the legislature. City
of Knoxville v. Gervin, 169 Tenn. 532, 541, 89 S.W.2d 348, 352 (1936) (“The word ‘and’ is
frequently construed as meaning ‘or.’ These words are interchangeable in the construction of statutes
when necessary to carry out the legislative intent.”). Although we generally presume that the
General Assembly purposefully chooses the words used in statutory language, Federal Express Corp.
v. Tennessee State Bd. of Equalization, 717 S.W.2d 873, 874 (Tenn. 1986), it is difficult to conceive
that the legislature intended to deny jurisdiction in cases where negligent control of a person by a
state employee resulted in injury, even though the injured person was not actually within the care or
custody of the state employee. Liberally construing this statute, therefore, we conclude that the
Claims Commission could properly assert jurisdiction under section 9-8-307(a)(1)(E) if Trooper Ray
had a legal duty to control local police authorities at an arrest scene—irrespective of whether he had
actual care and custody over the deputies—and if he was negligent in the fulfillment of that duty.

From our review of the relevant legal authorities, however, it seems clear that Trooper Ray
was under no general legal duty to control local law-enforcement officials at an arrest scene. To be
sure, Trooper Ray did have a duty to exercise reasonable care with regard to his own actions at the
arrest scene, but the Claims Commission and the Court of Appeals essentially held that Trooper Ray
was negligent by not controlling the actions of others at the scene. We have been unable to find any

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statute or regulation that imposes upon state highway patrol officers the duty or obligation to control
local police authorities at an arrest scene, and we are unable to find any statute or regulation that
compels county law-enforcement officials to submit to the control of state highway patrol officers
at the scene of an arrest.

In addition, we have found no case from any court in this state suggesting that Trooper Ray
was under a common-law duty to control or supervise county police authorities at the arrest scene,
and we are reluctant to impose such duty in this case without some precedential authority to do so.
As we have recognized before, the imposition of a legal duty “reflects society’s contemporary
policies and social requirements concerning the right of individuals and the general public to be
protected from another’s act or conduct.” McClung v. Delta Square Ltd. Partnership, 937 S.W.2d
891, 894 (Tenn. 1996). Plainly stated, Trooper Ray was in no better position than any of the other
deputies, including the plaintiff, to prevent the plaintiff’s harm. All of the Lewis County deputies
were trained in law-enforcement practices, and the plaintiff himself, who had over a year’s
experience with the Sheriff’s Department before his accident, admitted to receiving forty hours of
such training. Moreover, Ray enjoyed no special relationship with the Lewis County deputies that
would result in the law imposing a duty upon Ray to control the actions of the deputies. Given these
circumstances, we decline to find that “society’s contemporary policies and social requirements”
mandate imposing upon Trooper Ray a common-law duty to control the conduct of local police
authorities at an arrest scene.

To say that Trooper Ray was under no general legal duty to assert control over the county
officers in this case, however, is not to say that Trooper Ray was incapable of assuming such a duty.
Because any “determination of the state’s liability in tort shall be based on traditional tort concepts
of duty,” Tenn. Code Ann. § 9-8-307(c), the Claims Commission may properly exercise jurisdiction
in cases in which a state highway patrol officer has assumed a duty to control local law-enforcement
officials and is negligent in the discharge of that assumed duty. Cf. Marr v. Montgomery Elevator
Co., 922 S.W.2d 526, 529 (Tenn. Ct. App. 1995) (“One who assumes to act, even though
gratuitously, may thereby become subject to the duty of acting carefully.”).3 As is the case generally
with questions of whether a duty has been imposed by law, the question of whether one has assumed
a duty to act is also a question of law. See, e.g., Castro v. Brown’s Chicken & Pasta, Inc., 732
N.E.2d 37, 42 (Ill. App. Ct. 2000) (“Whether a defendant has voluntarily undertaken a legal duty to
a plaintiff seeking to bring a negligence action is a question of law . . . .”).4

3
The commissioner found the State liable for Trooper Ray’s actions “because [Ray] could have and ought to
have stepped in and taken c harge of this situation more strongly than he did.” In this manner, the commissioner conceded
that while Trooper Ray was not under a specific duty to act, Ray was negligent in not assuming a duty to act. While we
know of no rule of law that compels a person to assume a duty to act that is not otherwise imposed or implied by law,
in liberally construing the jurisdiction of the Claims Commission, we nevertheless undertake to determine whether Ray
voluntarily assumed a duty to control other deputies at the arrest scene.

4
See also Coghlan v . Beta T heta Pi Fra ternity, 987 P.2d 300, 312 (Idaho 1999) (“This Court has recognized
that ‘it is possible to create a duty where one previously did not exist. If one voluntarily undertakes to perform an act,
having no prior duty to do so, the duty arises to perform the act in a non-negligent manner.’ Generally, the question
(continued ...)

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 From our examination of the undisputed facts in the record, we find that as a matter of law,
Trooper Ray did not assume any such duty to control the Lewis County police deputies. First,
Trooper Ray did not summon the Lewis County deputies to the arrest scene or otherwise request any
assistance from the Lewis County Sheriff’s Department. In fact, by the time most of the deputies
arrived, the driver of the Nova had already been arrested and placed in the back of Ray’s police
cruiser. In addition, it was undisputed that Trooper Ray did not order, instruct, or request that the
deputies perform any specific duties, nor did he attempt to prevent the deputies from performing
their own tasks during this time. Although the plaintiff argues that all of the witnesses agreed that
Trooper Ray was “in control” of the arrest scene as Ray was the first officer on the scene,5 the actions
of the deputies do not confirm this belief. For example, the deputies neither sought Ray’s instruction
nor his permission to undertake various tasks, such as moving the Nova to the other side of the road,
establishing roadblocks and directing traffic around the accident scene, or requesting further
assistance after the accident from the Hohenwald Police Department.6 Accordingly, because we
conclude as a matter of law that Trooper Ray neither possessed nor assumed a legal duty to control
local police authorities at the arrest scene, we hold that the Court of Appeals erred in finding that the
Claims Commission had jurisdiction over the plaintiff’s claim pursuant to Tennessee Code
Annotated section 9-8-307(a)(1)(E).

Liability for Negligent Care, Custody, or Control of Personal Property

As an alternative basis for jurisdiction, the Court of Appeals also found that the Claims
Commission possessed jurisdiction under section 9-8-307(a)(1)(F), which authorizes claims against
the state for the “[n]egligent care, custody or control of personal property.” Although its decision
is unclear on this point, the intermediate court seems to have found that Trooper Ray was negligent

4
(...continued)
whether a duty exists is a qu estion of law.”) ; Morales v. Fansler, 258 Cal. Rptr. 96, 98 (Cal. Ct. App. 1989) (“[T]he trial
court determined that the only material issu e presented was whether th e above described [defenda nts] voluntarily
assumed [a] legal duty . . . . Appellants are in error when they contend the issue of legal duty is a question of fact.”).
W e note that Indiana courts apparently hold that “[a]lthough the determin ation of wheth er a duty exists is
generally a question o f law, whether a p arty assumed a duty and the extent of that duty are questions for the fact-finder.”
Sizemore v. Templeton Oil Co., 724 N.E.2d 647, 651 (Ind. Ct. App. 2000). Even under this approach, though, the
material facts giving rise to an assumed duty in this case are undisputed , and as such, th e question o f whether a du ty to
control county deputies was assume d by Troop er Ray in this case remains on e of law. See id. (“We may decide whether
[the defendant] assumed a duty toward the [plaintiffs] only if there are no genuine issues of material fact.”).

5
Even Trooper Ray admitted that because he was the first on the scene, he was the person who was in control
of the arrest. Ray later stated, though, that whatever “control” he possessed disappeared as soon as the arrest was
complete and the vehicle was released to a competent driver. Ray testified, and we agree, that after the vehicle was
released, the county deputies the n assumed control ov er the forme r arrest scene by moving th e car to the o pposite
shoulder themselves.

6
In his findings of fact and conclusions of law, the commissioner acknowledged that the officers in this case
“all deferred to each other” and that “there wasn’t any[one ] in charge o ut there.” Th e comm issioner also m ade a spe cific
finding of fact that Trooper Ray was “not in charge that night,” concluding that “[t]he question is not that [Ray] was in
charge. He was not in charge . . . .”

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in failing to call a tow truck to remove the 1974 Nova and in allowing the disabled car to be moved
to the other side of the road by the county deputies. Based on our review of the cases interpreting
section -307(a)(1)(F), we observe that no court in Tennessee has held that this section permits a
claim for personal injury caused by the negligent care, custody, or control of personal property.
Rather, virtually every case that has interpreted section -307(a)(1)(F) has construed that statute to
permit claims against the state only when the negligence of a state employee in the care, custody, or
control of personal property has resulted in the damage or loss of that particular item of personal
property itself.7 This having been said, however, the precise issue of whether section -307(a)(1)(F)
permits claims for damage to persons caused by the negligent care, custody, or control of personal
property was not addressed by any of these opinions, and it remains an issue of first impression in
this state.

The plaintiff urges this Court to apply a liberal construction to this subsection and allow
claims of personal injury resulting from the negligent care, custody, or control of personal property.
Because the language of section 9-8-307(a)(1)(F) is subject to various interpretations, and because
the plaintiff’s interpretation is not clearly contrary to the language of the statute, a liberal
construction of this statute counsels against construing it strictly to apply only to claims for damage
to the property itself. Accordingly, we agree with the plaintiff that section 9-8-307(a)(1)(F) does
permit claims against the state for damages caused by the negligent care, custody or control of
personal property by state employees.

In response, the State argues that such a construction would render inoperative two other
specific grants of jurisdiction: section -307(a)(1)(A), which permits claims arising from the
“negligent operation or maintenance of any motor vehicle,” and section -307(a)(1)(M), which
permits claims arising from the “[n]egligent operation of machinery or equipment.” We disagree.
In the typical case, the proof needed to satisfy the element of negligent maintenance or operation of
automobiles or machinery is much different than the proof needed to establish care, custody, or
control of those same items of personal property. Indeed, as can be seen in this case, the element of
control simply does not equate to that of operation or maintenance, because while Trooper Ray had
control of the Nova prior to his release of the car, he was not involved in its maintenance or

7
Ahkeen v. Parker, No. W1998-00640-COA-R3CV, 2000 WL 52771 (Tenn. Ct. App. Jan. 10, 200 0) (stating
that suit under section -307(a)(1)(F) provides the rem edy for reco very for dep rivation of pe rsonal pro perty); Reid v.
State, No. 02A01-9807-BC-00191, 1999 WL 528837 (Tenn. Ct. App. July 23, 1999) (stating that section -307(a)(1)(F)
“gives the Tennessee Claims Commission jurisdiction over monetary claims against the State arising from the care,
custody and control of personal property where the State is negligent in its care, cus tody and c ontrol”); Dean v.
Campb ell, No. 02 A01-97 04-CV -00077 , 1997 W L 4019 60 (Te nn. Ct. App . July 17, 1997) (noting that section 9-8-
307(a)(1)(F) “has provided ad equate proced ures to assure the return of items either negligently or inten tionally
converted” by state prison officials); Clark v. Tennessee Claims Commission, No. 01A01-9212-CH-00482; 1 9 93 W L
286031 (Tenn. Ct. App. July 30, 1993) (claim for neg ligent loss or conversion of a prisoner’s television converter kit);
Spence v. Thomas, No. 01A01-9105-CH -00161, 1991 W L 153220 (T enn. Ct. App. Aug. 14, 1991) (dismissing action
filed in chancery court for the recovery of personal property from state employees because Claims Commission has
jurisdiction over these claims under section -307(a)(1 )(F)). See also Fossett v. State , No. 02A01-9703-BC-00061, 1997
W L 714877 (Tenn. Ct. App. Nov. 19, 1997) (holding that child support payments assigned to the Tennessee Department
of Human Services were not “personal property” within the meaning of section -307(a)(1)(F)).

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operation. Because section -307(a)(1)(F) contemplates a different type of liability than either section
-307(a)(1)(A) or section -307(a)(1)(M), we conclude that a liberal construction of section 9-8-
307(a)(1)(F) will not render any other provision of the act unnecessary or mere surplusage. As such,
this Court may liberally construe the jurisdiction of the Claims Commission under this provision and
still give effect to the remaining grants of jurisdiction in section 9-8-307(a).

Nevertheless, even applying a liberal construction to section -307(a)(1)(F) to permit claims
arising from the negligent control of personal property, we find that jurisdiction is still not present
under this provision in this case. As soon as Trooper Ray properly released the vehicle, which was
in operating condition at the time of the release, his legal duty as to the care, custody, and control
of that vehicle ended. When the vehicle later stalled in the middle of the road, the person to whom
the car was released requested that the deputies, not Trooper Ray, assist her in moving the car. It is
undisputed that the deputies did not seek permission from Ray in order to move the car, and no one
testified that Ray gave any instructions to do so. When the deputies complied with this request,
therefore, they alone assumed the duty of reasonable care with regard to the stalled car. Because
Trooper Ray did not reassume control or custody of the Nova at any point after his proper and lawful
release of the car, he cannot be said, as a matter of law, to owe a duty to others to exercise reasonable
care, custody, or control of that car.8 Accordingly, we hold that the Claims Commission was also
without jurisdiction to hear and adjudicate the plaintiff’s claim under section 9-8-307(a)(1)(F).9

ALLOCATION OF FAULT

Because we have concluded that the Claims Commission was without jurisdiction over the
plaintiff’s claims against the State, the issue of whether the plaintiff was fifty percent (50%) or more
at fault for his accident has been rendered moot. Therefore, we reach no determination as to the
propriety of the commissioner’s findings in this regard.

CONCLUSION

8
We note that the commissioner was quite clear in his findings of fact and conclusions of law that Trooper Ray
was not negligent in fa iling to call a tow truck. The commissioner found that at the time of the release, the Nova was
in working or der, and a lthough the ca r had slippe d out of gea r, this condition did not prevent the car from being driven.
The commissioner also found that Trooper Ray had no discretion to tow a car in this case because the car created no
safety hazard and because the release was made according to the wishes of the driver. Therefore, as soon as the
commissioner found that Ray neither possessed nor assumed a duty to control the disposition of the car after its proper
release, he should have dismissed the claim for lack of subject matter jurisdiction, at least in so far as section 9-8-
307(a)(1)(F) provided the basis for such jurisdiction. Accordingly, because Trooper Ray acted with due care in releasing
the car, and because Trooper Ray did nothing as a matter of law to reassume custody or control of the vehicle, we find
that the Court o f Appeals e rred in perm itting jurisdiction to rest upon T rooper R ay’s alleged negligence in failing to tow
the Nova.

9
At the hearing of this case in the Claims Commission, the plaintiff argued that section 9-8-307(a)(1)(A)
applied to give the Co mmission ju risdiction to he ar these claim s. The pa rties do not a rgue befor e this Court tha t this
section applies, and we find no allegations in either the original or amended complaint that Troop er Ray ever actually
operated or maintained the 1974 Nova. Therefore, we conclude that the Claims Co mmis sion was also without
jurisdiction to hear this case under section 9-8-307(a)(1)(A).

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 In summary, we hold that the Tennessee Claims Commission in this case was without
jurisdiction to award monetary claims against the State of Tennessee. Because we conclude as a
matter of law that Trooper Ray neither possessed nor assumed a legal duty to control local police
authorities at the arrest scene, we hold that the Court of Appeals erred in finding jurisdiction under
Tennessee Code Annotated section 9-8-307(a)(1)(E), which permits claims against the state for the
“[n]egligent care, custody, and control of persons.” Moreover, while section 9-8-307(a)(1)(F)
applies to claims for damage or loss to personal property, as well as to claims for personal injury
caused by negligent control of personal property, the Court of Appeals erred in finding that the
Claims Commission possessed jurisdiction under this section as well. Finally, as we have concluded
that the Claims Commission was without jurisdiction over the plaintiff’s claims, we decline to reach
the issue of whether the plaintiff was more than fifty percent (50%) at fault for his accident.
Accordingly, the judgment of the Court of Appeals finding that the Claims Commission properly
exercised jurisdiction is reversed, and the plaintiff’s claim against the State of Tennessee is
dismissed.

Costs of this appeal are assessed to the plaintiff/appellee, Larry W. Stewart, for which
execution shall issue if necessary.

_________________________________
WILLIAM M. BARKER, JUSTICE

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