Matthews v. Pickett County

                      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.

                                                     3
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




                                             6
        (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.


                                            7
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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