06/02/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
April 12, 2022 Session
JEFFREY POLHAMUS v. STATE OF TENNESSEE
Appeal from the Circuit Court for Sullivan County
No. C42206 E. G. Moody, Chancellor
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No. E2021-01253-COA-R9-CV
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This case arises from a single-vehicle motorcycle accident at the intersection of State Route
1 and State Route 36 within the city limits of Kingsport, Tennessee. The cyclist contends
the accident was caused by the failure of the State of Tennessee and the City of Kingsport
to properly maintain the state highways; specifically, he alleges that their failure to repair
a pothole caused the accident. The plaintiff filed a claim against the State with the
Tennessee Division of Claims Administration, and shortly thereafter he commenced this
action against the City in the Sullivan County Circuit Court. The claim against the State
was later transferred and consolidated with the action against the City. Both the State and
the City claimed immunity and moved for summary judgment. The State asserted that it
had immunity because the City contractually agreed to maintain the highways where the
accident occurred. The City asserted that it had immunity because the State owned the
highways where the accident occurred. The trial court granted summary judgment in favor
of the City upon the finding the City had immunity because it did not “own” the state
highways; however, it denied the State’s motion because “[t]o hold that both the State and
the City [were] immune from suit would be against public policy.” We granted this
interlocutory appeal to address whether the State owed a duty to the plaintiff even though
it contracted with the City to maintain the highways where the plaintiff’s accident occurred.
Having closely reviewed the State’s contract with the City of Kingsport, we find nothing
in the contract or in Tennessee Code Annotated §§ 54-5-201 and -203 that authorizes the
State to delegate its responsibilities under § 9-8-307(a)(1)(I) “to exercise reasonable care
under all the attendant circumstances in . . . maintaining the State system of highways” and
(J) for “[d]angerous conditions on state maintained highways.” On the contrary, and as
§ 54-5-201 expressly provides, “the state’s obligation for maintenance of its system of
highways shall be governed by those limitations now set out by law, it being the intent of
this section neither to enlarge nor to diminish present obligations for this maintenance.”
Because the State bears the ultimate responsibility for inspecting and maintaining state
highways, we find the contract did not absolve the State of potential liability for failing to
do so. Therefore, we affirm the trial court’s decision.
Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Affirmed
FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which JOHN W.
MCCLARTY and THOMAS R. FRIERSON II, JJ., joined.
Amanda S. Jordan, Nashville, Tennessee, for the appellant, State of Tennessee.
Jack M. Vaughn, Kingsport, Tennessee, for the appellee, Jeffrey Polhamus.
OPINION
FACTS AND PROCEDURAL BACKGROUND
On May 26, 2016, Jeffrey Polhamus (“Plaintiff”) lost control of his motorcycle and
sustained significant injuries after hitting a pothole at the intersection of West Stone
Drive/State Route 1 and Lynn Garden Drive/State Route 36 in Kingsport, Tennessee. Both
West Stone Drive and Lynn Garden Drive were owned by the State; however, the City of
Kingsport had entered into an agreement with the Tennessee Department of Transportation
(“TDOT”) under Tennessee Code Annotated §§ 54-5-201 and -203, in which the City
agreed to, inter alia, maintain both state highways.
Plaintiff subsequently filed a claim for damages against the State of Tennessee with
the Division of Claims Administration as well as a civil action against the City of Kingsport
in the Sullivan County Circuit Court, alleging that the pothole was a dangerous and
defective condition and that the State and City were negligent for permitting the condition
to exist without repair. Plaintiff’s claim against the State in the Division of Claims
Administration was later transferred and consolidated with the civil action against the City
of Kingsport in the Sullivan County Circuit Court.
After the actions were consolidated in the circuit court, both the State and the City
moved for summary judgment. The State acknowledged that it owned the highways where
Plaintiff’s accident occurred and that Tennessee Code Annotated § 9-8-307 removed its
sovereign immunity for negligent maintenance of and dangerous conditions on state
highways. Nevertheless, the State asserted that it could not be held liable for Plaintiff’s
injuries because claims under § 9-8-307 must be based on the acts or omissions of “state
employees,” and TDOT delegated responsibility for maintaining State Routes 1 and 36 to
the City of Kingsport pursuant Tennessee Code Annotated §§ 54-5-201 and -203.
For its part, the City asserted that it could not be held liable under Tennessee Code
Annotated § 29-20-203(a), which removes a governmental entity’s immunity from suit for
injuries on roads when the roads are “owned and controlled” by the entity, because the City
did not “own” the roads where Plaintiff’s accident occurred.
The trial court agreed that the City retained immunity under § 29-20-203(a) because
the City did not own the roads where Plaintiff’s accident occurred. Conversely, the trial
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court denied the State’s motion for summary judgment because “[t]o hold that both the
State and the City [were] immune from suit would be against public policy.”
We granted the State’s application for interlocutory appeal under Tennessee Rule
of Appellate Procedure 9 and certified one issue for review:
Whether the State owes a duty to Plaintiff even though it contracted with the
City of Kingsport for the maintenance of West Stone Drive and Lynn Garden
Drive.
STANDARD OF REVIEW
This court reviews a trial court’s decision on a motion for summary judgment de
novo without a presumption of correctness. Rye v. Women’s Care Ctr. of Memphis,
MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015). Accordingly, this court must make a fresh
determination of whether the requirements of Tennessee Rule of Civil Procedure 56 have
been satisfied. Id. In so doing, we consider the evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences in that party’s favor. Godfrey v. Ruiz,
90 S.W.3d 692, 695 (Tenn. 2002).
Summary judgment should be granted when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” Tenn. R. Civ. P. 56.04. When the party moving for summary judgment
does not bear the burden of proof at trial, it “may satisfy its burden of production either (1)
by affirmatively negating an essential element of the nonmoving party’s claim or (2) by
demonstrating that the nonmoving party’s evidence at the summary judgment stage is
insufficient to establish the nonmoving party’s claim or defense.” Rye, 477 S.W.3d at 264.
When a motion for summary judgment is made and supported as provided in
Tennessee Rule of Civil Procedure 56, the nonmoving party may not rest on the allegations
or denials in its pleadings. Id. at 265. Instead, the nonmoving party must respond with
specific facts showing there is a genuine issue for trial. Id. A fact is material “if it must be
decided in order to resolve the substantive claim or defense at which the motion is
directed.” Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993). A “genuine issue” exists if “a
reasonable jury could legitimately resolve that fact in favor of one side or the other.” Id.
“Issues of statutory interpretation present a question of law, which we review de
novo on appeal, giving no deference to the lower court decision.” Kampmeyer v. State, 639
S.W.3d 21, 23 (Tenn. 2022).
ANALYSIS
It is well established that the State is immune from all lawsuits except those allowed
by the legislature. See Stewart v. State, 33 S.W.3d 785, 790 (Tenn. 2000) (citing Tenn.
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Const. art. I, § 17). When the legislature passed the Claims Commission Act, Tenn. Code
Ann. § 9-8-301 to -311, it waived immunity for monetary claims based on the acts or
omissions of state employees that fall within the categories specified in § 9-8-307(a). See
Mullins v. State, 320 S.W.3d 273, 279 (Tenn. 2010). In pertinent part, the legislature
removed immunity for claims arising from the negligent maintenance of and dangerous
conditions on state highways:
(1) The commission or each commissioner sitting individually has exclusive
jurisdiction to determine all monetary claims against the state based on
the acts or omissions of “state employees,” as defined in § 8-42-101,
falling within one (1) or more of the following categories:
. . . .
(I) Negligence in planning and programming for, inspection of, design
of, preparation of plans for, approval of plans for, and construction of,
public roads, streets, highways, or bridges and similar structures, and
negligence in maintenance of highways, and bridges and similar
structures, designated by the department of transportation as being on
the state system of highways or the state system of interstate
highways;
(J) Dangerous conditions on state maintained highways. The claimant
under this subdivision (a)(1)(J) must establish the foreseeability of the
risk and notice given to the proper state officials at a time sufficiently
prior to the injury for the state to have taken appropriate
measures . . . .
Tenn. Code Ann. § 9-8-307(a).
“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 v. State, 141 S.W.3d 121, 130 (Tenn.
Ct. App. 2004) (citing Tenn. Code Ann. § 9-8-307(c)). Thus, we have recognized that the
State has a duty under § 9-8-307(a)(1)(I) “to exercise reasonable care under all the attendant
circumstances in planning, designing, constructing and maintaining the State system of
highways.” Goodermote v. State, 856 S.W.2d 715, 720 (Tenn. Ct. App. 1993) (citing Tenn.
Code Ann. § 9-8-307(a)(1)(I)).
In this case, the State argues that it owed no duty to Plaintiff because it delegated
responsibility for maintaining the relevant portions of State Routes 1 and 36 to the City of
Kingsport under Tennessee Code Annotated §§ 54-5-201 and -203. We respectfully
disagree.
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Section 54-5-201 establishes that the State’s responsibility to maintain state
highways extends to municipal streets over which state highway traffic is routed.
Nevertheless, it also allows the State to enter into maintenance contracts with
municipalities for maintenance services:
(a) The department shall construct, reconstruct and improve streets and
maintain the streets in municipalities over which traffic on state highways
is routed; or enter into contracts with the municipalities in the state
regarding the construction, reconstruction and improvement of streets and
maintenance of the streets in municipalities over which traffic on state
highways is routed . . . .
(b) (1) The state shall pay all the costs for any highway or parts of the
highway designated and adopted by the department as and for a state
or state and federal aid highway in the state’s system of highways;
provided, that a municipality may contribute sums that may be
approved by its governing body to the cost.
(2) No municipality shall be required to pay or enter into an agreement to
pay any part of the costs.
(3) However, the state’s obligation for maintenance of its system of
highways shall be governed by those limitations now set out by law,
it being the intent of this section neither to enlarge nor to diminish
present obligations for this maintenance.
Tenn. Code Ann. § 54-5-201.
Section 54-5-203 provides that “[w]here a municipality is organized for the care of
its own streets, the construction, reconstruction, improvement and maintenance may be
done by the municipality, which shall be reimbursed by the state; provided, that all
expenditures shall be subject to the approval of the department.” (emphasis added).
Thus, although the State was authorized to enter into contracts with municipalities to allow
a municipality to maintain state highways within the municipality, the State was required
to maintain total control over any and all expenditures for maintenance services rendered
by a municipality. Consequently, the State was required to retain total control of the type
and extent of maintenance a municipality could perform.
Acting pursuant to § 54-5-201, TDOT contracted with the City of Kingsport for
“routine maintenance of state routes,” including the portions of State Routes 1 and 36
where Plaintiff’s accident occurred. The contract identified 19 types of maintenance work
that were “eligible for reimbursement,” including “Manual Spot Patching,” “Crack
Repair,” “Surface Replacement,” and “Concrete Pavement Repair.” The contract specified
that “[m]ajor resurfacing” would still “be performed by the [TDOT] as a construction
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project.” The contract also limited TDOT’s liability for damages resulting from the City’s
work:
Department Liability. The Department shall have no liability except as
specifically provided in this Contract. The Department does not assume any
liability for damages caused to persons or property by reason of the [City’s]
performance of this Contract. The Department assumes no liability for injury
to any person or employees of the [City] performing work under this
Contract.
The contract, however, expressly stated that the City’s work was “subject to
monitoring and evaluation” by TDOT. Further, the contract expressly stated that TDOT
was “under no obligation to request work from the [City] in any specific dollar amounts or
to request any work at all from the [City] during any period of th[e] Contract” and the
agreement did not “change the maintenance obligations” of TDOT. The contract also
provided that the City could not enter into a subcontract for any of the work without
obtaining prior written authorization from TDOT, and TDOT could terminate the contract
at any time for any reason, in which case the City would have a right to compensation only
for “satisfactory, authorized service completed as of the termination date.” Thus, TDOT
maintained complete control over what, if any, maintenance could be performed by the
City on State Routes 1 and 36.
Having closely reviewed the State’s contract with the City of Kingsport, we find
nothing in the contract or in §§ 54-5-201 and -203 that authorizes the State to delegate its
responsibilities under § 9-8-307(a)(1)(I). On the contrary, § 54-5-201 expressly provides
that “the state’s obligation for maintenance of its system of highways shall be governed by
those limitations now set out by law, it being the intent of this section neither to enlarge
nor to diminish present obligations for this maintenance.” Although the contract
purportedly limits TDOT’s liability for injuries caused by the City’s performance, it does
not and cannot limit the State’s liability for injuries caused by the State’s negligence in
failing to inspect or maintain the roads as prescribed by § 54-5-201.
Although there is little caselaw interpreting § 54-5-201, we find the decision in
Austin v. State, 796 S.W.2d 449 (Tenn. 1990) to be persuasive. In Austin, the plaintiffs filed
a claim against the State after their son died in a bridge collapse in Memphis, Tennessee.
Id. at 449–50. Much like Plaintiff in this case, the plaintiffs in Austin asserted a claim under
Tennessee Code Annotated § 9-8-307(a)(1)(I) and alleged that “the State had a duty to
inspect and maintain [the bridge], that it negligently failed to perform this duty, and that
this negligence was a proximate cause of the bridge collapse and resulting death of [their
son].” Id. at 450. And like this case, the State argued in Austin that it was not liable for the
son’s death because it delegated responsibility to the local government. Id. at 455.
At the time, § 9-8-307(a)(1)(I) waived the State’s immunity for injuries caused by
the negligent maintenance and inspection of highways and bridges “if such activity [was]
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mandated or undertaken pursuant to state or federal law.” See id. at 450 (emphasis omitted).
Although federal law required the State to maintain the bridge, a federal regulation allowed
the State to delegate its duty to maintain and inspect bridges. Id. at 454–55. Significantly,
however, the regulation stated that “such agreement shall not relieve the state of its
responsibility.” Id. at 455. Thus, the Court found that “the state [was] not relieved of its
responsibility under federal law upon delegation of part of its duties to local government”
and held that the State “remain[ed] as the entity mandated to inspect and maintain the
bridges.” Id. Accordingly, the Court found that the State could be held liable for failing to
inspect and maintain the bridge. Id. at 457.
Like the federal laws at issue in Austin, Tennessee Code Annotated § 54-5-201
permits the State to delegate its responsibility to maintain state highways routed over city
streets. See id. § 201(a). But it also makes clear that “the state’s obligation for maintenance
of its system of highways shall be governed by those limitations now set out by law, it
being the intent of this section neither to enlarge nor diminish present obligations for
this maintenance.” Id. § 201(b)(3) (emphasis added). Thus, we find the State’s contract
with the City did not relieve the State of its responsibilities under § 9-8-307(a)(1)(I) and
(J).
For completeness, we acknowledge that the State also argues that it cannot be liable
because § 9-8-307(a) applies only to claims based on the acts or omissions of “state
employees,” which § 8-42-101(3)(A) defines as excluding “any person employed on a
contractual or percentage basis.” Plaintiff’s claim, however, turns on the State’s
nonfeasance, that being its alleged failure to inspect and maintain state highways, and not
on the City’s malfeasance. In other words, Plaintiff’s claim is based on the alleged
negligent omissions of state employees, not negligent acts of city employees.
For these reasons, we find the State’s contract with the City for highway repair
services did not release the State from its duty under Tennessee Code Annotated § 9-8-
307(a)(1)(I) and (J) to maintain the state highways within the City of Kingsport where
Plaintiff’s accident occurred.
IN CONCLUSION
The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against the State of Tennessee.
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FRANK G. CLEMENT JR., P.J., M.S.
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