IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
(HEARD AT PARIS)
FILED
June 14, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
FOR PUBLICATION
Filed: June 14, 1999
MARY MATTHEWS, ) United States Court of Appeals
) for the Sixth Circuit
PLAINTIFF/PETITIONER, ) No. 96-5791
)
v. ) Hon. David A. Nelson, Judge
)
PICKETT COUNTY, TENNESSEE, )
LARRY PEEK and DANA DOWDY, )
Individually and in their official )
capacity as employees for the )
Pickett County Sheriff’s Department, )
)
DEFENDANTS/RESPONDENTS. ) No. 01S01-9801-FD-00005
FOR PETITIONER: FOR RESPONDENTS:
JOSEPH H. JOHNSTON ALAN T. FISTER
MAX MENDELSOHN JEFFREY M. BEEMER
Nashville Nashville
FOR AMICUS CURIAE, TENNESSEE FOR AMICI CURIAE, THE TENNESSEE
MUNICIPAL LEAGUE RISK TASK FORCE AGAINST DOMESTIC
MANAGEMENT POOL: VIOLENCE; LAWYERS’ ASSOCIATION
FOR WOMEN, MARION GRIFFIN
ROBERT H. WATSON, JR. CHAPTER, and TENNESSEE LAWYERS
JOHN C. DUFFY ASSOCIATION FOR WOMEN:
Knoxville
CHRISTINA NORRIS
Nashville
FOR AMICUS CURIAE, TENNESSEE
ASSOCIATION OF LEGAL SERVICES:
THEODORE R. KERN
Knoxville
HOLDER, J.
2
OPINION
This case comes to us on a certified question of law.1 The petitioner, Mary
Matthews, filed this action in the United States District Court against the
respondents, Pickett County, Tennessee, Larry Peek, and Dana Dowdy. The
district court held that the petitioner's negligence action was barred by the public
duty doctrine, which shields public entities and public employees from tort liability
for injuries caused by a breach of a duty owed to the public at large. The petitioner
appealed to the Sixth Circuit Court of Appeals. The Sixth Circuit Court of Appeals
certified the following question for our resolution: "May the existence of an order of
protection give rise to a 'special duty' to protect, and, if so, does the special duty
extend to the protection of property?" We accept certification and hold under the
facts of this case that the special duty exception to the public duty doctrine is
applicable. Accordingly, the respondents may be held liable for the petitioner's
damages under the Governmental Tort Liability Act ("GTLA"), Tenn. Code Ann. §
29-20-201 et seq.2
FACTS
In October of 1993, Ms. Matthews was assaulted, beaten, and sexually
violated by her estranged husband, Bill Winningham. She sought and received an
order of protection prohibiting Winningham "from coming about the petitioner for
any purpose and specifically from abusing, threatening to abuse the petitioner, or
committing any acts of violence upon the petitioner." The order further provided
1
Tennessee Supreme Court Rule 23 permits this Court in its discretion to answer
questions of law certified to us when "the certifying court determines that, in a proceeding before
it, there are questions of law of this state which will be determinative of the cause and as to which
it appears to the certifying court there is no controlling precedent in the decisions of the Supreme
Court o f Tenn essee ."
2
Ora l argu me nt wa s hea rd in th is cas e on A pril 14 , 199 9, in P aris, H enry C oun ty,
Tenn essee , as part of this Cou rt's S.C.A .L.E.S. ( Supreme Court Advancing Lega l Education for
Students ) project.
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that Winningham "shall be arrested by a law enforcement officer without a warrant
if that officer has reasonable cause to believe that [Winningham] has violated or is
violating this Order."
On November 18, 1993, the eve of the hearing on their pending divorce,
Winningham threatened to kill Ms. Matthews and attempted to break into her
home. Ms. Matthews telephoned the sheriff's department at approximately 9:30
p.m., 10:00 p.m., and 10:30 p.m. On each occasion, the sheriff's department
informed Ms. Matthews that they would send someone. During this time,
Winningham set off firecrackers under Ms. Matthews' propane tank. Ms. Matthews
made no more telephone calls after 10:30 p.m. as Winningham had severed the
petitioner's telephone line.
The respondent deputies, Peek and Dowdy, arrived at Ms. Matthews' house
at approximately 11:50 p.m. They spoke to Winningham but did not arrest him.
Tennessee Code Annotated § 36-3-611 authorized a warrantless arrest of
Winningham under these circumstances, but one of the deputies testified that he
did not believe he could have arrested Winningham without a warrant. The other
deputy testified that there was no probable cause for an arrest because no act of
violence was committed in the deputies' presence.
The deputies took Ms. Matthews to the courthouse so that she could swear
out a warrant for Winningham’s arrest. The deputies were then informed that a
warrant was unnecessary. The deputies and Ms. Matthews returned to her house
and found that her automobile had been riddled with bullet holes while they were at
the courthouse. The deputies then escorted Ms. Matthews out of the county.
Deputy Peek's cousin, Mr. Mullins, was left behind to watch Ms. Matthews' house.
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He testified that Winningham returned to the petitioner's house with a large
container and left a few minutes later without the container.
The deputies returned to pick up Mullins and observed Winningham leaving
Ms. Matthews' home. Winningham was not stopped and questioned. The
deputies did not examine the house at close range. They, however, did shine a
spotlight on the home from the road. They testified that they did not notice
anything unusual. Ms. Matthews' house burned to the ground after the deputies
left.
ANALYSIS
The district court held that the respondents' actions were operational in
nature and not subject to immunity under the GTLA.3 The district court found that
"despite [the] abundance of probable cause to arrest Mr. Winningham for violating
the order of protection, the deputies failed to arrest [him]" and "went home and
went to bed." We agree with the district court's holding. A negligent act or
omission is operational in nature and not subject to immunity when the act or
omission: (1) occurs in the absence of a formulated policy guiding the conduct or
omission; or (2) when the conduct deviates from an established plan or policy.
Chase v. City of Memphis, 971 S.W.2d 380, 384 (Tenn. 1998). Both the order of
protection in this case and Tenn. Code Ann. § 36-3-611 mandated that the
deputies arrest Winningham upon "reasonable cause to believe that [Winningham]
ha[d] violated the order of protection." The record supports a finding that the
deputies' failure to arrest Winningham was a deviation from a policy as expressed
by statutory mandate and was operational in nature. See generally Watts v.
3
The case was tried to the district court without a jury; the court's findings of fact and
conclusions of law are included in the parties' joint appendix.
5
Robertson County, 849 S.W.2d 798 (Tenn. App. 1992); Doe v. Coffee County Bd.
of Educ., 852 S.W.2d 899 (Tenn. App. 1992).
Having found that the GTLA did not provide immunity, the district court
correctly looked next to the public duty doctrine defense. In Ezell v. Cockrell, 902
S.W.2d 394 (Tenn. 1995), this Court held that the common law doctrine of public
duty and its exception, the special duty doctrine, survived the enactment of the
GTLA. The public duty doctrine provides immunity to public employees for injuries
that are caused by a breach of a duty owed to the public at large. Id. at 397. The
public duty doctrine, however, is only viable as a defense to liability when immunity
has been removed under the GTLA. Chase, 971 S.W .2d at 385. Accordingly,
neither the public duty doctrine nor the special duty exception expands the
government's exposure to tort liability. The doctrine merely operates to provide an
additional layer of defense to acts or omissions not immune under the GTLA.
The public duty doctrine defense is subject to the special duty exception.
The special duty exception does not create liability but operates to negate the
public duty doctrine defense and allows a plaintiff to pursue a viable cause of
action under the GTLA. The special duty exception is applicable when:
(1) a public official affirmatively undertakes to protect the plaintiff and
the plaintiff relies upon the undertaking;
(2) a statute specifically provides for a cause of action against an
official or municipality for injuries resulting to a particular class of
individuals, of which the plaintiff is a member, from failure to enforce
certain laws; or
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(3) a plaintiff alleges a cause of action involving intent, malice, or
reckless misconduct.
Chase, 971 S.W.2d at 384; Ezell, 902 S.W.2d at 402.
Subsection (1) applies to the facts of this case. The order of protection in
this case was not issued for the public's protection in general. The order of
protection specifically identified Ms. Matthews and was issued solely for the
purpose of protecting her. Cf. Ezell, 902 S.W.2d at 403 (statute prohibiting drunk
driving does not specify an individual but undertakes to protect the public in
general from intoxicated drivers). Ms. Matthews apparently relied on the court's
order of protection. She contacted the sheriff's department and requested that it
provide her with protection pursuant to the order of protection. Accordingly, the
special duty exception to the public duty doctrine is applicable to this case.
The defendants argue that, if a special duty did exist in this case, the special
duty extended only to liability for personal injury and did not extend to liability for
damages to Ms. Matthews' property. We disagree. The focus is upon the
relationship between the parties and not upon a specific harm. If a special
relationship does exist, the public duty doctrine defense is negated, and immunity
conferred by the doctrine is removed. The cause of action is controlled strictly by
the provisions of the GTLA once the public duty doctrine defense has been
negated. Accordingly, the respondents may be subject to liability under the
provisions of the GTLA for damages proximately caused by a breach of the special
duty.
The deputies had a duty to arrest Winningham if there were reasonable
cause to believe that Winningham had violated the order of protection. Tenn.
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Code Ann. § 36-3-611. If the deputies breached the duty owed to Ms. Matthews,
she may recover damages proximately caused by that breach, to the extent
permitted by the provisions of the GTLA.
CONCLUSION
Based on the limited facts certified to this Court and on the question posed
to this Court, we hold that the special duty exception to the public duty doctrine is
applicable and that the respondents may be subject to liability under the GTLA.
The clerk will transmit a copy of this opinion in accordance with Tenn. R. Sup. Ct.,
Rule 23(8). The costs in this Court will be taxed to the respondents.
JANICE M. HOLDER, JUSTICE
Concurring:
Anderson, C.J.
Drowota, Birch, and Barker, J.J.
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