Court reviews a GTLA claim against Berry Hill in a case involving a construction accident

JOHN DURLING KEMPER v. JOE C. BAKER, INDIVIDUALLY AND IN HIS CAPACITY AS CITY MANAGER OF BERRY HILL, TENNESSEE ET AL.(Tenn. Ct. App. April 20, 2012)

This is a GTLA action against a city and city official following a construction accident in which an exterior wall of a building collapsed, causing serious injuries to one of the plaintiffs and causing the death of the other plaintiff. The building was being demolished and the plaintiffs were employed by a private company that was to disconnect gas utilities on the privately owned building.

The plaintiffs claim the collapse was caused, in part, by the failure of the city and the city manager to enforce certain OSHA regulations and provisions of the municipal building code. The trial court dismissed the plaintiffs’ claims against the city and the city official on the defendants’ motion for summary judgment based on governmental immunity. We affirm.

Opinion available at:
https://www.tba.org/sites/default/files/kemperj_042012.pdf

Court Reviews Whether the Statute of Limitations Barred the Transfer of a GTLA Claim to the Proper Venue

JOHN HAYNES v. RUTHERFORD COUNTY ET AL. (Tenn. Ct. App. June 28, 2011)

The issue in this matter is whether Tenn. Code Ann. section 16-1-116 ("the Transfer Statute") tolls the running of the statue of limitations when a claim under the Government Tort Liability Act is filed in a court that lacks subject matter jurisdiction, and the court transfers the case to a court with jurisdiction.

Acting pro se, the plaintiff filed a GTLA claim in the general sessions court of Rutherford County; the civil warrant was filed prior to the running of the one-year statute of limitations for a GTLA claim. Because subject matter jurisdiction over GTLA claims is limited to the circuit court, the sessions court transferred the case. The circuit court held that, because the sessions court lacked jurisdiction, the transfer itself was invalid; therefore, the action was not effectively filed until it was transferred to the circuit court. However, the date of transfer was beyond the applicable one-year statute of limitations for GTLA claims; thus, the circuit court dismissed the case as time barred.

We have determined this case is not time barred because, under the Transfer Statute, the statute of limitations was tolled when the civil warrant was timely filed in sessions court and, because it was timely filed, the sessions court was authorized to transfer the case to the circuit court. Therefore, we reverse and remand with instructions to reinstate the case and for further proceedings consistent with this opinion.

Full opinion available at:
http://www.tba2.org/tba_files/TCA/2011/haynesj_062811.pdf

Court Reviews Whether Plaintiff Sufficiently Stated Her Claims Against Jackson County Defendants

TERESA LYNN JACKSON v. AARON THOMAS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CIRCUIT COURT CLERK OF JACKSON COUNTY, TENNESSEE ET AL. (Tenn. Ct. App. March 24, 2011)

Plaintiff appeals the Tenn. R. Civ. P. 12.02 dismissal of her claims against two defendants, the Circuit Court Clerk of Jackson County, individually and in his official capacity, and Jackson County, Tennessee for a violation of 42 U.S.C. section 1983, the Tennessee Governmental Tort Liability Act, and numerous intentional torts. The trial court dismissed all claims against these defendants finding that Plaintiff failed to state a claim. We affirm the trial court in all respects.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/jacksont_032411.pdf

Court Reviews Whether City of Lebanon had Constructive Notice of a Dangerous Park Swing

CHARLES JUSTIN WRIGHT, BY NEXT FRIEND AND MOTHER, KAREN PRYOR v. CITY OF LEBANON, TENNESSEE (Tenn. Ct. App. March 2, 2011)

In a Governmental Tort Liability Act ("GTLA") action, the City of Lebanon appeals the trial court's decision to hold it liable for an accident that occurred on a swing in a city park. The City asserts that the court erred in failing to find that the swing was in a dangerous or defective condition or that the City had notice of such a condition. Additionally, the City insists that any defective condition was latent and governmental immunity was therefore not removed under the GTLA. The City also challenges the trial court's denial of its motion for involuntary dismissal, its characterization of the case as "hybrid" in nature, its reliance on the doctrine of res ipsa loquitur in establishing negligence, and its admission of the plaintiff's expert testimony. We conclude that the swing was in a dangerous or defective condition, which was not latent, and that the City had constructive notice of that condition. We find against the City on its remaining issues.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/wrightc_030211.pdf

Court Reviews Apportionment of Fault in a Wrongful Death Case Against the City of Clinton

CURTIS ROBIN RUSSELL, ET AL. v. ANDERSON COUNTY, ET AL. (Tenn. Ct. App. February 11, 2011)

This is the second appeal of this wrongful death action, arising from a pedestrian versus motor vehicle collision that fatally injured a seven-year-old child at a downtown Clinton intersection.

The action was filed pursuant to the Tennessee Governmental Tort Liability Act ("GTLA"), Tenn. Code Ann. section 29-20-101 et seq., against the City of Clinton ("the City") by plaintiffs Curtis Robin Russell and Dorothy Louise Russell as next of kin of the decedent, their son Curtis Tyler Russell. The Russells settled with the driver of the vehicle, Ladislav Misek ("Mr. Misek"), who was subsequently dismissed as a party-defendant from the lawsuit. The trial court in the first trial entered judgment after a nonjury trial, apportioning equivalent liability to Mrs. Russell and the City.

On appeal, this court held that: (1) the trial court committed reversible error when it failed to rule on the fault to be attributed to Mr. Misek; and (2) material evidence existed for the culpability and fault to be assigned to Mr. Misek. On remand, the trial court altered its judgment, attributing 45% of the fault each to Mrs. Russell and the City and 10% to Mr. Misek. The City appealed. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/russellc_021111.pdf

Court Reviews a Case Involving an Automobile Accident between Plaintiff and a Police Officer

TOMMIE HAMPTON v. CITY OF MEMPHIS, TENNESSEE (Tenn. Ct. App. December 14, 2010)

Plaintiff was injured when Defendant Madden drove his vehicle at a high speed and in the wrong direction on an exit ramp of I-40/240 and collided head-on with Plaintiff's vehicle. Plaintiff filed a negligence action against Defendant Madden and against the City of Memphis pursuant to the Governmental Tort Liability Act.

In his complaint, Plaintiff asserted Memphis City police negligently pursued Defendant Madden, and that this negligence proximately caused Plaintiff's injuries. The trial court found Plaintiff's injuries were caused solely by the acts of Defendant Madden and entered judgment in favor of the City of Memphis. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/hamptont_121410.pdf

Court Reviews a Wrongful Death Case, and Issues Regarding Immunity, Against the Memphis Housing Authority

CHERYL BROWN GIGGERS, ET AL. v. MEMPHIS HOUSING AUTHORITY, ET AL. (Tenn. Ct. App. December 14, 2010)

This is the second appeal of this wrongful death action, arising from a fatal shooting of a tenant at a Memphis public housing property. This Court granted Appellant, Memphis Housing Authority's, Tenn. R. App. P. 9 interlocutory appeal to address the trial court's denial of summary judgment in favor of the Appellant.

Finding that Appellees' "failure to evict" claim is preempted by 47 U.S.C. section 1437, and that Appellant retains its sovereign immunity under the discretionary function exception to the Tennessee Governmental Tort Liability Act, we reverse and remand for entry of summary judgment in favor of Appellant. Reversed and remanded.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/giggersc_121410.pdf

Court reviews whether plaintiff adequately proved constructive notice in a slip and fall case

CALVIN BENN v. PUBLIC BUILDING AUTHORITY OF KNOX COUNTY, ET AL. (Tenn. Ct. App. June 28, 2010)

Plaintiff slipped off the sidewalk while removing trash during the course and scope of his employment with Knox County. Plaintiff sustained injuries to his hip and shoulder as a result of his fall. He then filed suit pursuant to the Government Tort Liability Act. After a bench trial, the trial court found that Plaintiff failed to prove constructive notice by a preponderance of the evidence and entered a judgment in favor of Defendants. Plaintiff appeals. We affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/bennc_062810.pdf

TN Supreme Court reviews the applicability of the Government Tort Liability Act

ESTATE OF JOYCE BELL ET AL. v. SHELBY COUNTY HEALTH CARE CORPORATION D/B/A THE REGIONAL MEDICAL CENTER (Tenn. June 24, 2010)

This appeal involves the application of the Tennessee Governmental Tort Liability Act to an action for damages filed against a defendant that was not covered by the Act when the injury producing events occurred.

The defendant filed a motion for partial summary judgment in the Circuit Court for Shelby County seeking the benefit of the claims and defenses available to government entities under the Act. The plaintiffs responded by challenging the constitutionality of legislation extending the coverage of the Act to the defendant on the ground that the legislation had been enacted after the plaintiffs had sustained their injuries. The trial court held that the Act applied to the defendant but granted the plaintiffs permission to pursue an interlocutory appeal.

We granted the plaintiffs' application for permission to appeal after the Court of Appeals declined to consider the case. We have determined that applying the substantive amendment to the Tennessee Governmental Tort Liability Act enacted after the injury-producing events occurred to the plaintiffs' damage claims violates the prohibition against retrospective laws in Article I, Section 20 of the Constitution of Tennessee.

Opinion available at:
http://www.tba2.org/tba_files/TSC/2010/bellj_062410

GTLA statutory cap on damages upheld in absence of express waiver from City of Memphis

FAYE BLACK v. CITY OF MEMPHIS (Tenn. Ct. App. April 22, 2009)

This is a wrongful death case against a municipality. In 1987, the plaintiff's teenage son was shot and killed by a police officer. The plaintiff sued the officer and the municipality, asserting claims under both federal and state law. Years of proceedings and delay ensued. By 2005, the only remaining claims were state law claims against the municipality. The parties filed crossmotions for summary judgment. The trial court granted summary judgment in favor of the plaintiff. The plaintiff then filed a motion for entry of judgment in the amount of $130,000, the maximum damage award under the Tennessee Governmental Tort Liability Act. The plaintiff filed separate motions for interest and costs. The municipality stipulated that if the court entered a judgment it should be in the amount of $130,000, but argued that the plaintiff was prohibited from recovering interest or costs in addition to the $130,000 judgment because such an award would exceed the statutory damage cap. The plaintiff argued that the municipality's misconduct prolonged the case and drove up costs, and that the court had authority to award costs in order to sanction the municipality for this misconduct.

The trial court entered a judgment for the plaintiff in the amount of $130,000, but denied the plaintiff's motions for interest and costs, finding that the Governmental Tort Liability Act precluded an award of discretionary costs in excess of the statutory cap on damages, and did not award sanctions. The plaintiff appeals, arguing that the court has authority to award sanctions in excess of the statutory damage cap. We affirm, finding that the trial court’s order does not indicate a finding that sanctions against the municipality were warranted.

The full text of this opinion is available at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/blackf_081309.pdf

“The statute specifically requires an express waiver before a governmental entity can be held liable for damages in excess of the statutory cap. Ms. Black cites no authority to support her argument that a governmental entity can be deemed to have constructively waived its protection under the GTLA damage cap. This argument is without merit.” Id.