F§LED
IN THE coURT oF APPEALS or TENNESSEE § AU@ `9 3 ZW'
AT NASHVILLE . i Clerk of the Courts
Septernber 7, 2016 Session -
DONNA MARIA VETRANO, ET AL. v. STATE OF TENNESSEE
Appeal from the Tennessee Claixns Commission, No. T20160(}51,
Robert.N. Hibbett, Commissioner
No. M2015-02474-COA-R3-CV
Former inmate and her husband filed a complaint against the State of Tennessee, alleging
that state employees negligently supervised and retained a prison guard Who sexually
assaulted the inmate. The Tennessee Claims Commission determined it lacked subject
matter jurisdiction to hear the claim and dismissed the complaint We conclude that the
former inmate’s claim falls vvithin a category of claims for which the Claims Commission
has exclusive jurisdiction, specifically the “[n]egligent care, custody and control of
persons.” Tenn. Code Ann. §9-8-307 (Supp. 2016). We also conclude the complaint
does not seek to hold the State liable for the Willful, malicious, or criminal act of a state
employee Accordingly, We reverse
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Tennessee Claims
Commission Reversed and Case Remanded
W. NEAL MCBRAYER, J., delivered the opinion of the court, in Which D. MICHAEL
SWINEY, C.J., and ANDY J. BENNETT, J., joined
Brandt l\/l. l\/lcl\/Iillan, Nashville, Tennessee, for the appellants, Donna l\/larie Vetrano and
Ronald David Coggins.
Herbert H. Slatery, lll, Attorney General and Reporter; Andre'e S. Blumstein, Solicitor
General; and Jennifer L. Brenner, Senior Counsel, for the appellee, State of Tennessee.
OPINION
I.
Donna Maria Vetrano and Ronald David Coggins (collectively “Claimants”) filed
a claim against the State seeking injunctive relief and compensatory damages after
l\/ls. Vetrano Was allegedly sexually assaulted by a prison guard vvhile she Was an inmate
at the Tennessee Prison for Women. Claimants averred that state employees negligently
supervised and retained the prison guard Who assaulted l\/fs. Vetrano.
ln addition to the claim against the State, Claimants filed a separate suit against
the prison guard 111 the Circuit Court for Davidson County, Tennessee. By statute, they
could not pursue the circuit court action unless the Claims Commission determined that
the prison guard acted outside the scope of his employment2 [d. § 9- 8- 307(b)
Consequently, Claimants filed a motion With the Claims Commission seeking such a
determination and a motion to transfer their claim against the State to circuit court
Before the Claims Commission, the State filed a motion to dismiss The State
asserted that the Claims Commission lacked jurisdiction because the State could not be
liable “for the willful, malicious, or criminal acts of state employees.” See id. §9-8-
307(d). The State also asserted that the Commission lacked jurisdiction to hear claims
arising from the negligent supervision and retention of state employees
The Claims Commission granted the State’s motion and dismissed the complaint
for lack of subject matter jurisdiction The Commission agreed that the prison guard’s
actions Were outside the scope of his employment and that Claimants could proceed With
the circuit court action, but denied the motion to transfer as moot.
II.
On appeal, Claimants challenge the dismissal of their claim for negligent
supeivision and retention of the prison guard3 and the denial of the motion to transfer
l l\/Is. Vetrano’s husband, l\/lr. Coggins, asserted a loss of consortium claim.
2 Claims filed against the State operate as a Waivei of any suit against the individual state
employee unless the Claims Commission determines that the act or omission was outside the scope of
employment Tenn Code Ann. §9- -8- 307(b).
3 After the State filed its motion to dismiss Claimants 1equested leave to amend theii complaint
to add a claim foi “negligently causing the depiavation of Ms Vetrano s statutory 1ight to be flee from
l\/lalicious Harassment. ” Although it granted leave to amend, the Claims Commission determined that it
also lacked jurisdiction ove1 the negligent dep11vatlon of statuto1y rights claim. Claimants do not laise
2
We review the subject matter jurisdiction of the Claims Commission de novo, with no
presumption of correctness Mullirzs v. State, 320 S.W.3d 273, 278 (Tenn. 20l0);
Northland Ins. CO. v. State, 33 S.W.3d 727, 729 (Tenn. 2000).
In Tennessee, “[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. l, § 17. In 1984, with the
enactment of the Tennessee Claims Commission Act (sometimes referred to as the
“Act”), the Legislature broadly waived sovereign immunity for specified claims against
the State. Tenn. Code Ann. §9-8-307; see Lucas v. State, 141 S.W.3d l21, 129 (Tenn.
Ct. App. 2004) (“The Tennessee Claims Commission Act, subject to its monetary cap on
recoverable damages, accomplished a sweeping abrogation of sovereign immunity as to
the State of Tennessee relative to acts or omissions of state employees.”). A successful
claimant under the Act is entitled to an award of actual damages and court costs up to a
specified monetary limit, but no punitive damages or other litigation costs. Tenn. Code
Ann. § 9-8-307(d).
Under the Act, the Claims Commission possesses exclusive jurisdiction over
monetary claims against the State based on acts or omissions of state employees that fit
within the twenty-three categories described in the statute Tenn. Code Ann. §9-8-
307(a)(l); Mullz'ns, 320 S.W.3d at 278. The State’s liability under the Act is determined
by reference to “the traditional tort concepts of duty and the reasonably prudent person’s
standard of care.” Tenn. Code Ann. § 9-8-307(0). The State may assert any defenses or
absolute common law immunities that would have been available to the state employee
except for good faith common law immunity. Ia’. § 9-8-307(d); see Lucas, l4l S.W.3d at
142 (holding the Act does not allow the State to assert discretionary function immunity).
State employees enjoy absolute immunity under the Act for acts or omissions
within the scope of their employment, “except for” any willful, malicious, or criminal
acts or for acts done for personal gain. Tenn. Code Ann. § 9-8-307(h). The State is also
not liable “for willful, malicious, or criminal acts by state employees, or for acts on the
part of state employees done for personal gain.” Ia’. § 9-8-307(d).
()ur task, applying the Act to the allegations of Claimants, entails statutory
interpretation See Antonin Scalia & Bryan A. Garner, Reczdz`ng Law.' The Inrerpretatz`on
ofLegal Texz’s 53 (2012). Thus, our goal is to “ascertain and effectuate the legislature’s
intent.” Kz`te v. Kz're, 22 S.W.3d 803, 805 (Tenn. l997). ln this case, the Legislature has
directed 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).
Our supreme court has cautioned, however, that we are not at liberty to create a
new category under the guise of liberal construction Norrhland lns. Co., 33 S.W.3d at
the dismissal of this additional claim as an issue on appeal
3
730; Srewart v. State, 33 S.W.3d 785, 791 (Tenn. 2000). ln determining whether a claim
is within a prescribed category, “we will give a liberal construction in favor of
jurisdiction, but only so long as (l) 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.” Stewarr, 33 S.W.3d at 791 (quoting Bmdy v. Reea’, 212 S.W.2d 378, 381
(Tenn. 1994)).
A. NEGLlGENT CARE, CUsToD\/, AND CoNTRoL oF PERsoNs
, Our first task is to determine whether this claim falls within one of the statutory
categories for which the Claims Commission possesses exclusive jurisdiction Here, we
are concerned with one category in particular: the “[n]egligent care, custody and control
ofpersons.” Tenn. Code Ann. § 9-8-307(a)(1)(E).
According to the complaint, while l_\/ls. Vetrano was an inmate in the Tennessee
Prison for Women, she was sexually assaulted by a prison guard, Of`ficer Scott l\/lepham.
Before the assault, foicer l\/lepham had exhibited other “inappropriate and troubling
behavior,” and another inmate had filed a~formal complaint against Officer Mepham for
assault, which was being investigated by the Department of Corrections. foicer
l\/lepham’s supervisors “had actual and/or constructive knowledge that Officer Mepham
was unfit for the job of corrections officer, and it was reasonably foreseeable that he
posed an actual threat of harm to the inmates with [whom] he came in contact.” The
“inadequate supervision and inappropriate retention of Officer Mepham . . . was a clear
breach of the standard of care [the Statel owed to Ms. Vetrano, and this negligence in her
care, custody, and control was the direct, proximate and legal cause” of her injuries.
Claimants describe their claim as one for the negligent care of a prison inmate, the
type of claim often included within this category. See Sz‘ewarr, 33 S.W.3d at 792
(explaining that our courts have previously interpreted this category to include claims for
injuries to “persons confined in penal institutions[] . . . maintained by the state”). On the
other hand, the State characterizes this claim as one for negligent supervision of a state
employee, which arguably does not fit within an existing category, relying on Byrd v.
State, 150 S.W.3d 414, 420 (Tenn. Ct. App. 2004) (refusing to “stretch the language” in
the Claims Commission Act to include a failure to discipline or terminate a physician
employee).4
4 The State’s reliance on Byra’ v. Stale is misplaced ln Byrd, the alleged injuries were not
suffered by persons within the care, custody, and control of the State. Rather, the Byrd claimants were the
owner and employees of an independent janitorial service who sought to hold the State liable for
negligent control ofa state employee Bym’, 150 S.W.3d at 416, 420.
4
We conclude that this claim falls within the “[n]egligent care, custody and control
of persons” category. See Stewczrt, 33 S.W.3d at 792. l\/ls. Vetrano was a prison inmate,
and “[p]rison officials have a duty to exercise ordinary and reasonable care for the
protection of the persons in their custody.”' Cockrum v. State, 843 S.W.2d 433, 436
(Tenn. Ct. App. 1992). l\/lere proof of injury is insufficient lnmates must establish that
prison officials failed to exercise reasonable care to prevent a foreseeable injury. Ia’. at
438. ln this case, l\/ls. Vetrano alleged that prison officials knew or should have known
that Officer Mepham posed a risk of harm to female prison inmates and failed to exercise
reasonable care to protect the inmates from a foreseeable injury.
B. WiLLFuL, MALicioUs, oR CRIMINAL ACTs oF STATE EMPLoYEEs
Our conclusion that this claim falls within one of the statutory categories does not
end our inquiry, however. The State asserts that it is immune from liability for the
willful, malicious, or criminal acts of state employees and that Claimants’ negligence
theory is simply a back-door attempt to circumvent the State’s immunity. See Tenn.
Code Ann. § 9-8-307(d).
This issue appears to be one of first impression under the Claims Commission Act.
While we have previously dismissed complaints based on intentional wrongdoing by
state employees, none of our previous cases included a viable negligence claim against
the State.5 See Bostz'c v. State, No. E2011-02590-COA-R3-CV, 2013 WL 23191, at *2
(Tenn. Ct. App. Jan. 2, 2013) (former prison inmate claimed prison officials intentionally
failed to help him obtain a place to live upon his release); Haynie v. Srare, No. 1\/12009~
01340-COA-R3-CV, 2010 WL 366689, at *2 (Tenn. Ct. App. Feb. 2, 2010) (claimant
sought compensation for false imprisonment); Cavnar v. State, No. l\/12002-00609-COA-
R3-CV, 2003 WL 535915, at *3 (Tenn. Ct. App. Feb. 26, 2003) (former mental patient
alleged willful and malicious conduct by state hospital staff).
The State contends we should affirm the dismissal of the complaint under
Lz'mbaugh v. Cojj‘”ee Mea’z'cal Cemer, 59 S.W.3d 73 (Tenn. 2001), a case interpreting the
Governmental Tort Liability Act (the “GTLA”). See Tenn. Code Ann. §29-20-205
(2012). ln Lz`mbaugh, the son of a nursing home resident sued the county-owned nursing
home and a nursing assistant for damages after the nursing assistant physically assaulted
the resident Lz'mbaugh, 59 S.W.3d at 76. Our supreme court held that the nursing home
5 ln Cavnar v. State, No. M2002~00609-COA-R3-CV, 2003 WL 535915, at *5 (Tenn. Ct. App.
Feb. 26, 2003), the plaintiff alleged the State inflicted emotional distress upon his family members This
court agreed that the Claims Commission had jurisdiction over a claim for negligent infliction of
emotional distress, but affirmed the dismissal because the plaintiff lacked standing to assert the claim 011
behalf of his family members Likewise, in Haynz`e v. State, No. 1\/12009-01340~COA-R3-CV, 2010 WL
366689, at *3 (Tenn. Ct. App. Feb. 2, 2010), this court held that the negligence claims against ajudge and
a probation officer were barred by the doctrines of judicial and quasi-judicial immunity, respectively
5
acted negligently in failing to take reasonable precautions to protect the resident from the
foreseeable risk of assault. Id. at 81. The court then faced the issue of whether the
nursing home retained immunity in spite of its negligence based on the intentional tort
exception ]cz’.
The court resolved the immunity issue through application of familiar canons of
statutory construction [d. at 83-84. The GTLA waives governmental immunity for
injury proximately caused by negligent acts or omissions of government employees
“except if the injury arises out of” one of a list of exceptions, including the intentional
tort exception Tenn. Code Ann. § 29-20-205. The court concluded, based on the plain
language of the statute, that the nursing home was not immune from liability for its
negligence because the torts of assault and battery “are conspicuously absent from the
intentional tort exception ” Lz`mbaug//z 59 S. W. 3d at 84; See Tenn. Code Ann. § 29~ 20-
205(2)
The majority in Lz`mbaugh rejected the argument advanced by Justice Holder 1n a
concurring opinion that “a governmental entity [should] be held liable for its own
negligent employment practices regardless of the nature of the underlying acts of its
employees.” Lz'mbaugh, 59 S.W.3d at 88 (Holder, J., concurring). Emphasizing that the
GTLA specifically retained immunity for injuries “arising out of” the listed intentional
torts and that the statute must be strictly construed, the majority “decline[d] to impose
blanket liability on a governmental entity for its negligent employment practices when
one of the exceptions immunizing the entity is applicable.” Ia’. at 82 n.7 (majority
opinion).6
Here, we are faced with a significantly different statute We must liberally
construe the sweeping abrogation of sovereign immunity in the Claims Commission Act,
a directive in stark contrast to the strict construction applicable to the GTLA. Tenn. Code
Ann. § 9-8-307(a)(3); Stewarr, 33 S.W.3d at 790-91; Lucas, 141 S.W.3d at 129.
Although the Claims Commission Act specifies that the State’s liability cannot be
premised on the willful, malicious, or criminal acts of state employees, the Act does not
6 'l` he relevant portion of the GTLA provides:
lmmunity from suit of all governmental entities is removed for injury proximately caused
by a negligent act or omission of any employee within the scope of his employment
except ifthe injury arises out of: . . . (2) False imprisonment pursuant to a mittimus from
a court, false arrest, malicious prosecution intentional trespass, abuse of process, libel,
slander, deceit, interference with contract rights, infliction of mental anguish, invasion of
right of privacy, or civil rights[.]
Tenn. Code Ann. § 29~20-205.
specifically retain immunity for claims that “arise out of or result from” such acts7 Tenn.
Code Ann. § 9-8~307(d).
The Legislature knows how to use the phrase “arise out of or result from” when
that is its intention Elsewhere in the Act, the Legislature directs that the State will not be
held liable for claims “arising out of or resulting from” other acts, not at issue in this
case Tenn. Code Ann. § 9-8-307(a)(2). But similar language is conspicuously absent
from subsection (d).
“The entire statutory purpose of the Tennessee Claims Commission Act is to
establish the state’s liability in tort based on the traditional tort concepts of duty and the
reasonably prudent persons’ standard of care.” Lucas, 141 S.W.3d at 130 (citing Tenn.
Code Ann. § 9-8-307(c) (Supp. 2003)). As our courts have recognized in other contexts,
a defendant may be held liable for failure to exercise reasonable care to prevent a
foreseeable intentional act. See, e.g., McClung v. Delta Square Lra’. P’shz'p, 937 S.W.2d
891, 899 (Tenn. 1996) (holding businesses have duty to protect customers from
foreseeable criminal attacks); McClena//zarz v. Cooley, 806 S.W.2d 767, 776 (Tenn. 1991)
(agreeing that negligent car owner could be potentially responsible for injuries to plaintiff
caused by car thieD.
Allowing Claimants to proceed with their negligence claim under the facts alleged
here achieves the statutory goal of providing a remedy for negligent acts that fall within a
specified category without holding the State liable for the willful, malicious, or criminal
acts of state employees See Carver v. Cz`tizen Ulz`ls. Co., 954 S.W.2d 34, 35 (Tenn.
1997) (“Our goal is to adopt a reasonable construction which avoids statutory conflict
and provides for harmonious operation of the laws.”). To prevail on her claim,
Ms. Vetrano must establish that the prison officials’ negligence proximately caused a
foreseeable injury. See Brown v. Christz`an Bros. Unz'v., 428 S.W.3d 38, 56 (Tenn. Ct.
App. 2013) (explaining that a claim for negligent supervision of an employee requires
proof of negligence and “that the employer had knowledge of the employee’s unfitness
for the job”). If she cannot prove all elements of her negligence claim, the State will not
be held liable even if foicer l\/lepham committed the sexual assault
7 This distinction between the two statutes makes our holding in Aulry v. Hooker, 304 S.W.3d
356, 361 (Tenn. Ct. App. 2009), inapplicable as well. ln Auz‘ry, another GTLA case, we rejected the
argument that a school district could be held liable for intentional misconduct of an employee “if the
intentional misconduct could reasonably have been foreseen by the entity, and the governmental entity
fails to protect the plaintiff from that foreseeable risk.” [a’. Because the GTLA specifically retained
immunity for injuries that arose out of civil rights violations, we held that summary judgment in favor of
the school district was appropriate Id. at 364.
III.
For the foregoing reasons, we reverse the Tennessee Claims Commission’s
judgment dismissing the complaint for lack of subject matter jurisdiction This cause is
remanded for a determination of whether the claim against the State should be transferred
to circuit court and for any further proceedings consistent with this opinion that may be
necessary.
W. NEAL l\/ICBRAYER, JUDGE