Cooper v. Rutherford County
531 S.W.2d 783
Tenn.
1975
Check Treatment

*1 7«3 COOPER, Appellant, V. L. COUNTY, Appellee.

RUTHERFORD of Tennessee.

Supreme Court 15, 1975. Dec. Murfreesboro, Kidwell, for ap- E. Dicken

pellant. Sellers, Sellers, T. &

William Smith Mur- freesboro, for appellee.

OPINION FONES, Justice. Chief appeal appellant, direct V. L. In this Cooper, damages against filed a suit for appellee, Rutherford result of drowning wife. The death his trial court dismissed the under action T.R.C.P. 12.02(6) ground Rule on the doc- sovereign immunity precluded trine of re- covery against county. the defendant of the trial court. affirm action alleged in following facts are 24, 1974, December complaint: ap- On m., p. appellant’s 11:15 proximately wife had left work at the Rutherford County Nursing proceeding and was on Home Road, County Farm a two lane black top road, when toward her home she “suddenly ran into the unexpectedly” flood water River, where the road of the Stones crosses car was then the river. Her over carried drowned. Mrs. and she Coo- downstream automobile was in front of per’s another driven a Mrs. Pitts who also automobile Pitts escaped into the water. Mrs. drove automobile, her it was carried complaint the water. The away also night rainy, was dark and alleges markers, or lights, signs there were no where the road crosses vicinity river.

Appellant argues that this action be may (3) separate maintained on three theories: is liable in (1) County be- sovereign immunity the doctrine of cause abrogated; county may should escape liability on by relying *2 mental public as maintained a units nuisance that have exempted them- by building operating dangerous a road selves from the Act would automatically be bridge; dangerous the road subject provisions to the of that Act for all bridge a trap resulted in by created the arising claims or actions after January 1, county precludes defendant date, defend- 1976. After that this category of tort ant’s reliance the doctrine of stripped sover- claims will be gov- shield of eign immunity. ernmental in all of the counties municipalities Tennessee.

I. given the local units to what considers support appropriate In proposition of his time to the adjust procedures their doctrine of sovereign immuni+y take adequate "hould be against steps protect to the judicially abrogated, consequences appellant many cites the change a in jurisdictions immu- cases in where this has been nity. inappropriate It would be for us to accomplished. judicially accelerate the tort liability of In 1973 the General Assembly present counties in the and prospective Tennessee enacted the Governmental Tort state of the law. Act, Liability seq. § T.C.A. 23-3301 et expressly T.C.A. 23-3309 § removes immu II. nity injury from suit for caused theory of nuisance has been dangerous any street, condition of alley, urged in the Courts many for sidewalk or highway, where construction or years, in an to effort circumvent the bar of actual notice of condition alleged such immunity. In many of the proven. originally As enacted a local cases, reported the conclusion that the con political body option to “exempt roadway or bridge dition of the complained itself under certain conditions.” We as trap alleged constituted a support in County sume exempt pur Rutherford to be of the nuisance theory. suant to T.C.A. 23-3303 failure of § appellant to raise issue response in to Shelby In Vance v. County, 152 Tenn. county’s plea immuni (1925), 273 S.W. 557 the missing bridge ty. In Johnson v. Oman Construction Com was alleged to dangerous be a pitfall, snare, pany, (Tenn.1975) we con trap death and nuisance. In Buckholtz v. sidered this statute stated: Hamilton S.W.2d 455 an overflow of “clear” regard dealing “We do not this statute as water across highway that was said to subject complete a compre- with the in or appear innocuous was alleged to be a We are hensive manner. reluctant trap death support the theory that the area, however, judicial take action creation of a on the nuisance road giving Assembly without the General county superseded the bar opportunity comprehensive to establish procedure and uniform tort claims gov- cities, erning suits counties and Both reject Vance and Buckholtz the nui- political other agen- subdivisions their sance theory, as have other reported cases duly cies in the constituted courts of the too numerous to short, mention. coun- ties, state.” 519 S.W.2d as distinguished from municipalities, have consistently avoided liability in such Subsequent decision, Johnson circumstances. Assembly Chapter General enacted 252 of the Public Acts of 1975 which removed the history liability tort of municipali- government option of the local exempt ties construction itself from the Government Tort maintenance of streets is contra. Cities Chapter Act. provides govern- were judicially responsible declared tort is, fact, virtually the intersection good repair as keep roads for failure such, trap, and causative factor in statutorily duty 1839 and early as . accident. notice re- along with a imposed quirement. requirement Such a not be harsh *3 the present general rule in view Metropolitan Government The In 570, liability.” 569, 225 Tenn. 473 against County, Tennessee Davidson and Nashville S.W.2d 222, 632 Allen, Tenn. 415 S.W.2d 220 v. cities and coun- history of the case (1967), dictum and The Court’s observation was the law is recounted field of in this chip away ties the desire to a motivated therefor. the reasons along sovereign of the doctrine. portion approach particular not been That plain- cases wherein numerous There are this Court and will in this adopted by not be liability extend the tort sought to tiffs have case, present prospective of the in view negli- the narrow limits beyond of cities Tennessee Governmental Tort state and maintenance construction gent Liability Act. theory. streets, use of the nuisance by the Nashville, al., conclusion, et City principles v. of law In Powell In 334, (1934), city disposition a Buckholtz control 69 S.W.2d 894 Vance case, against inter- and similar suits stop sign a at the required ordinance Monroe, of this that have excluded but the counties State section of Second sign from the Tennessee Governmen- maintain the and its absence themselves failed to Act, 1,1976. Liability January Tort until said to constitute nuisance. Obvious- tal theory urged because this Court ly that of the trial The decree court is affirmed. making and held that previously adjudged against appellants. costs regulating the use enforcing of ordinances was a function. the streets HARBISON, JJ., concur. COOPER Gore, v. 131 Tenn. Town of Gainesboro BROCK, JJ., dissent. HENRY and Powell, Court, (1915). The 173 S.W. theory nuisance in the circum- rejected the HENRY, (dissenting). Justice condi- alleged, on the basis that the stances cankered, immunity is a Governmental an act of non- complained involved tion corrupted area of our law. It corroded Parenthetically, the condition feasance. flaming sword used cities and is the this case also involves non- complained of in in Tennessee to banish the inno- feasance, misfeasance. not their wrongs deny victims of them cent day in traditional court. It has be- their III. hallmark of irre- come govern- defense sponsibility dis only case in this state that has —the stoop conquer to own entities their mental trap theory, as a cause of action cussed citizens. nuisance, distinct is Sul separate and Herbert, v. S.W.2d livan that I con- pride It was with tremendous There, Powell, as in failure to Johnson v. Oman Construction curred alleged to stop sign place maintain Inc., 519 S.W.2d 782 Company, dangerous amount created a condition have unanimously this Court denounced wherein rejecting After nuisance ing to a nuisance. “an sovereign immunity as the doctrine Powell, action, in accord with basis as a as “at variance with anachronism” that: opinion speculates effect, justice.” In we concepts modern give an is to hold the we if this Court said that

“. . . act, implica- with the clear stop sign traffic at opportunity maintain a failure we recog- would. We did negligence, actionable tion that if an intersection Tort Act showing a case nized Governmental . it must The profession (§ seq. T.C.A.) et took 23-3301 commented us at our word and in briefs arguments and oral upon this Act: made at the bar Court the lawyers of this of Tennessee have regard dealing We do not this statute as recognized our view immuni- subject complete in a and com- with the ty an “anachronism.” manner. We are reluctant prehensive accepted Circuit area, however, action in Sixth our judicial pro take nouncement face value. Sawyer Assembly the General giving without Hospital, Methodist al., et 522 F.2d comprehensive establish opportunity (1975) that Court said: procedure gov- tort claims and uniform cities, erning suits counties and recognize in Johnson v. Oman political agen- subdivisions their other Co., Construction duly courts of cies in the constituted *4 (Tenn.1975), the Tennessee Supreme supplied). S.W.2d (Emphasis state. expressed Court its dissatisfaction with at 786. the doctrine of immunity. Nevertheless, the court affirmed the dis- make it a of record I wish to matter that certain of claims on missal the basis of upon was based an honest my concurrence immunity, concluding that the did not belief that if estab- the doctrine should abrogated judi- “comprehensive and uniform” tort lish a cially without affording the Legislature abrogate procedure, claims opportunity to act on this issue. Thus recognized immunity. appears it that may join the effect, held, that the Governmental growing number of states that have abol- comprehen- Act was neither Tort substantially ished or modified sovereign sive nor uniform. I thought that Johnson Oman, v. Oman leg- to Johnson v. Subsequent sounded the death knell of adopted Chapter of the Public islature immunity Tennessee, but our decision option Acts of 1975 removed today restores to a robust condition exempt governments local themselves good sound health. law, application from the effective 1 Consistency demands I January the law abide 1976. made uniform our ad- monition in Johnson v. and, Oman comprehensive did not make it hasty departure Court’s from its course, holding continued all cities necessitates this dissent. not electing and counties to come under it January 1976. until 1 I. Again City Memphis Roberts, of sovereign immunity doctrine Court, addressing S.W.2d deeply rooted feudal notions of the waiving statute of cities right kings. England divine In feudal respect tort actions King at the very pinnacle of the police officers, based action of power structure and was answerable to no

sheriffs, etc., unanimously declared: “the King court since can do no wrong”.

Section 6-640 T.C.A. was wholesome leg- proceed upon general Our courts as- islation, designed partial for the correc- sumption sovereign immunity is an problem tion of a which exists without part established of our common law. Such excuse, and, justification or as Justice is not the case. eloquently so

Harbison stated Johnson years Sixteen after the men of the Wa- Co., Construction v. Oman tauga settlement organized the Watauga (1975), is “at variance with mod- adopted Association and the first written justice.” concepts ern S.W.2d at constitution to be prepared on Amer- adopted Americans, ican soil and native king ed. He was another who could do not from the themselves sought to remove who wrong. governors— British Colonial rule “the most famous case He has been called Colo- after the American years Twelve manic-depressive insanity.” From time country by mother from the separated

nies necessary that he be re- to time of Inde- of their Declaration adoption straight jacket. His first strained (1776)— pendence years he was 27 when attack came of Con- after the Articles years Eleven and most severe attack His second old. the Continen- agreed were federation and, years oddly he was 50 old came when (1777)— Congress tal in that year, it was same enough adoption of our after Eight years Devon was decided.1 Men (1780)— Compact Cumberland King wrong can do no say To despotism, royal roguery the Articles of Confed- Tudor ignore after years Seven of an (1781)— every unsavory history fact were ratified eration England, up through least Kings the Constitution of the after years Three period ques- which is the here in George III (1785)— adopted Franklin State tion. after the Constitution of year one And Independence recites: The Declaration of (1787)— was written the United States *5 King history present of Great “the adopted Tennessee had And after history injuries of repeated is a Britain it England, of as stood at law common usurpations. of the colonies” separation before Thereafter, magnificent declaration this 651, Sutherland, 215 Tenn. v. [Quarles absolving ourselves from separation, of our (1965)]— Crown, allegiance to the British lists 27 all his of Russell broke by the name A man wrongs abuses and committed specific Bridge and there ensued on a British wagon wrong. do no king who could Devon, of Russell v. Men of case the historic adopted part we as a of our say To that Eng.Rep. Term.Rep. Heritage, portion of the com- American ancestor of putative Thus type injustice of representing law mon being and thus was the came into fled, ignore is every we fact Law established—after English Common every early facet of our history and of England had longer part of were no we objectives. aims and American ties therewith. all severed course, English like so much And, was a suit indicates this style As the difficulty so that we have much unincorporat- of an inhabitants against the immu- discarding, the rule county. ed long Eng- since ceased to exist in nity that propositions case turned on the land. hav- unincorporated county it involved and no means of fund corporate no

ing II. one; it is better that an obtaining that again we were at war with In 1812when that injury sustain than should individual king an insane who could England—while inconvenience; suffer wrong” ruling by regency no “do multiplicity of a and fear precedent lack high seamen on the seas—a impressing our suits. Mower moved his horse onto man named history Bridge with the result that interesting footnote Leicester is an It hoof hit a hole and the horse on the horse’s George III sat Majesty, his that Russell was decid- died. England when throne Weihafen, Psychiatry the Law. W. W. Norton & Co.

1. Guttmacher and Court, tence Massachusetts Mower will not withstand critical analysis for Leicester, (1812), Inhabitants 9 Mass. 247 two First, reasons. the Constitution of resurrecting immortalized horse gives Tennessee the state no absolute im- revising the rule Men Devon and second, munity and gives the cities and misapplying same with the result no Assuming arguendo the hoof of the horse between and the immune, is the state sophis- sheer precedent mouth of the court a was set try say that Tennessee cities and counties plagued profession, which has perverted partake of also the state’s sovereignty and and tormented the justice sovereigns courts for more are immune. This awkward than sixteen decades. theory borders on the ludicrous when we attempt draw the illusory and elusive unanimity agreement There is a distinction between pro- the American ancestor the immu- priety activities. nity today. rule as we know it Tennessee’s first constitution became ef- Both Men of Devon and Mower have fective on June 1796. XI, Article Section widely criticized. been 17, provided pertinent part: Barnett, writing Professor in 16 Ore.L. may brought be Suits the State in (1937), Rev. 250 refers to Mower as: such manner and such courts as the application sorry . the Rus- may by law direct: Provided, sell case ... a combination of mis- right bringing suit be limited to guided logic misapplied precedent. the citizens of this State. (Emphasis sup- v. Arizona Highway Stone plied). Commission, 93 Ariz. 381 P.2d 107 In Shannon’s Annotated Constitution of the Court said that these two cases: at page suggested it is (h)ave set tumbleweed motion and proviso “probably last omitted be- every nearly adopted state theo- same it was cause considered to ineffectual *6 ry sovereign liability as to for of torts its any rate, invalid.” At and ap- does not agents employees, or [citations omitted]. pear subsequent in constitutions. though Even this doctrine has subse- In the constitutions of (actually quently England, been overruled in 1835) —it became effective 27 March and rule still exists in most of the states of (effective May 1870) the Declaration country.2 381 P.2d at 110. Rights of is transferred from XI Article Spanel View, v. Mounds 264 Minn. Article 1. Section of each Article simply the Court 118 N.W.2d said: regard in this provides, that: shaky It was on this foundation that the may brought against Suits be the State in tort such in manner and such courts as the erected Minnesota and elsewhere. 118 legislature may by law direct. at 797. N.W.2d The construction of this section does not just require honesty. intellectual brilliance— III. Clearly the authors of our Constitution Tennessee, plain, We turn now to where the simple unambiguous have said quite exists may sued, leaving doctrine erroneous terms that the state somewhat novel basis that somehow to the legislature to determine wheth- —not state’s trickles down to cities procedure er—but the manner to be fol- and, therefore, they, as “arms lowed and to identify the appropriate state”, are also immune. insis- arguable courts. It is legisla- that once the majority of jurisdictions 2. Stone decided in At American 1963. this time discarded

7«9 Tennessee’s judge3 Supreme three courts, Court delineated their ture has established composed time procedures, their that Nathan outlined jurisdiction and Green, Turley William B. and Robert J. has been satisfied. It is the Constitution view, McKinney. my legisla- arguable, not nullify the Constitu- right

ture has synony- The name of Nathan Green may that suits not be by providing tion superior craftsmanship legal mous the state. brought against Dr. He was described Rob- Tennessee. White, historian, Tennessee’s noted ert H. our courts earlier The determination of the most illustrious men as “one who immunity is the matter on occupied position on ever the bench of the significance. controlling Court of Tennessee”. See Mes- Memphis Lasser, Mayor case Tennessee, sages of Governors Vol- (1849) was decided in the 28 Tenn. 757 Two, page After his voluntary ume of our statehood. This was fifty-third year in 1852 he was associated with retirement City Memphis tort action University historic Cumberland Tennessee’s injuries personal seeking damages for sus- day Unto this his fame as Law School. fell into a well plaintiff deep tained when judge teacher of law has lawyer, en- at the intersection dug by or cistern Surely, giant he was of the Ten- dured. streets. of two legal profession.4 nessee held: Judge Turley B. was from William (I)t day, at this settled both is well Goodspeed (page instructs us Clarksville. America, that England corpo- such a 394) opinions distinguished “his (municipal) is liable to ration be sued polished language and perspicuity, their ex- like manner tort in as natural actions of logical reasoning”.5 act supplied). persons, (emphasis Judge McKinney, Robert J. of Greene at 760. served Constitutional Con- always peculiar It been a matter of journal vention of 1834 and reference to its admittedly some interest, frustration the fact that he was an will document ac- author of chagrin, to the this dissent tive, informed and influential member of Coffman v. Pula City court in Goodspeed body. (page instructs us 642, 422 ski, did long “of list of 395) that illustrious quote foregoing language Las fame, engraven temple in its none names *7 ser, quoted extensively from although higher occupy position than that of Rob- quote did the clincher that case. Nor McKinney.” J. ert Lasser: conclusion was court. truly This remarkable Had are corporations likewise liable Municipal any any suggestion been substance to there neglects acts and wrongful for the sovereign immunity they would have agents, upon same the their servants and recognized it. Had it been a known manner, same and to the grounds, in the they our would part of common have persons, (empha- natural extent as same any suggestion it. there been applied Had Tenn. at 762. supplied). sis any, if inured immunity, the state’s benefit cities and counties rejec- they of this the the authors clear Who were there sovereign immunity? have so held. Had been any would tion of the doctrine they validity to the “arm of identified. think it material semblance 5.Goodspeed’s History com- was of Tennessee 3. The Tennessee from judges only until posed three (1887). Earliest Times to Present 1860. grandfather of the late Chief 4. He was the B. Green. Justice Grafton (T)hat a theory, they municipal corporation have it. applied

state” is not lia- distinguished justices, wrongful these three ble for the Instead acts of its officers. Justice speaking through McKinney, who at 43 Tenn. 213. constitution, helped reject- write the flatly Neither Humes nor support Lasser such a sovereign immunity by holding ed that a holding. Municipal Corporation Tennessee was “lia- The cited also a court Massachusetts case

ble sued to be in actions tort in like based sorry which was “a misapplica- persons.” manner as natural tion” of Russell case. years Seven after Lasser came Cole Thus it was that year seventieth Corporation Nashville, 36 Tenn. 162 statehood, our years seventy-eight after (1856). proclaimed The court law be: Devon, v. Men of Russell supra, there came (T)hat corporations are liable for being in Tennessee into the court decreed wrongful neglect acts and of their offi- doctrine agents the course and within cers and suggests Pesterfield no constitutional scope employment upon of their question. grounds, same same manner and to persons that natural It was not the same extent even hinted that the wrongs of their of the state”. liable for “arm agents. servants at 166. suggested It was not the common McKinney Justice opinion law was involved. in by concurred Justices Harris and Robert fact, se, immunity, per L. Caruthers. was not discussed. Looney Justice Robert Caruthers succeed- origin of the municipal Goodspeed (page Green. Judge ed Nathan rule as it exists in today, Tennessee with its 395) us he was the “best advocate tells distinctions, gray blurred area differentia- ever He was a re- produced.” conclusions, tions and casuistic is the case of During man. the War between markable Memphis v. Kimbrough, 59 Tenn. 133 he elected Ten- Governor of States Moore, nessee, take office. but did not See This first Tennessee case to draw a Tennessee, State, p. Volunteer “corporate” distinction between “pub- Judge Like Green he devoted his after time case, This lic” duties. as others which fol- teaching bench to law Cum- leaving the reasoning, low its wholly point fails to out University. berland why municipality an arm of the state no Again sophisms sophis- we have exercising governmental when functions law. tries. Just hard-core Tennessee knew exercising and is not when proprietary sovereign immunity constitutionally Subsequent functions. decisions of law. under the common courts are similar studies frustration. later, in years distinction, Ten the seventieth year quote Abraham Lincoln statehood, there came (on sophism adversary) our before the court of an is “as thin *8 Vickers, v. case Pesterfield 43 Tenn. as the boiled shadow of a homeopathic pid- (1866). 205 This was an action for assault geon”. a battery policeman. committed In the 109 years that have intervened cases, to two The court alluded Tennessee since Pesterfield Tennessee Supreme Knoxville, (1) Humes 20 Tenn. 403

viz: v. explained never why governmen- Court has (1839) wherein the court held that Knox- immunity tal exists and has never exam- streets, ville, of its was an- proprietor as arguments history policy ined the damages by private swerable for incurred a validity. I to its have not overlooked Coff- citizen, (2) Lasser. man, supra. simply The immunities were adopted because some The Court held: other states and

791 kill, Tort Act are free to murder They them. writers sustained some text oper- merely they mayhem, city were when the is because here. and commit stayed here unless ating governmental capacity in its produced holdings has Parroting previous or unless city has waived its immunities for city negli- A is liable results. ludicrous as I read the a nuisance is created. And keep in safe condi- its streets gent failure law, unquali- enjoy absolute and of Knoxville v. tion, Mayor Aldermen virtually immunity opera- fied in all their sprinkles 157 its Bell, 80 Tenn. but tions. capacity, Connel- in a streets Nashville, 262, 46 grade” corporations 100 Tenn. S.W. 565 “low ly They may be v. its in 142 Tenn. county County, a maintains roads v. Davidson (1897). But Chandler 265, they enjoy is 218 222 capacity and immune. a S.W. 559, immunity Tenn. high 222 439 status. Davis v. Scott octane (1969). cityA is liable for a 102 S.W.2d unholy is state of of our This the law nuisance, Dowling, v. Chattanooga 101 brought on adherence today, State blind 342, (1898). county 47 S.W. 700 A is Tenn. system indefensible of court-licensed to an of a for the commission nuisance. not liable attendant confu- negligence with chaos and Dawn, 544, Tenn. v. 208 347 Hawkins sion, reasoning both and in results. (1961). operation 480 of a S.W.2d is the anachronism we of in spoke function, a governmental is plant water Construction Company, Johnson v. Oman City 97, of Memphis, v. 140 Tenn. Smiddy brothers supra, my majority (1918); operates 512 its water 203 S.W. perpetuate. v. plant proprietary capacity, in a Williams 274, Morristown, 32 222 Tenn.App. S.W.2d IV. (1949). 607 jurisdictions have Other American tangled web we have woven to What weighed sovereign bal- promote unjust rule of law. protect and it wanting. and have found The first ances say certainty is we can All citadel Flori- assault was made in today county answer landmark and resulted da in the ordinary dis able Beach, Hargrove v. Cocoa case So.2d functions, corporate charge of its but in its 130, 1193 (Fla.1957). 60 A.L.R.2d Since capacity employees its majority jurisdic- time a American misdemeants, fleeing to shoot in the free suit,6 being followed the latest tions have (Coffman); department its fire is free back Mexico, which held in Hicks v. New New to answer fire alarms v. to fail [Irvine Mexico, (New 1975) P.2d 1153 Mexico 291, Chattanooga, 101 Tenn. S.W. 419 longer a val- no police department may its (1898)]; commit in tort actions state id defense battery City v. of Eliza assault [Combs political or its subdivisions. bethan, 31 S.W.2d 691 (1930)]; employ mentally it is free to ill recent landmark decision made fairly A Court of police Pennsylvania is unanswerable when he chief of Philadelphia provocation (Bobo v. Edu- Ayala a citizen without Board of Public shoots cation, Kenton, (1973). 453 Pa. A.2d 877 City of short, court’s employees holding, The crux of the in a master- Roberts, opinion by Justice is contained municipalities have ful of Tennessee following opinion: come sentence from the under Governmental elected *9 Alaska, by judicial sylvania, decision in 6. Abolished District of Columbia and New California, Colorado, Florida, Arizona, Ida- Hawaii, Mexico. Abolished statute Illinois, Louisiana, Indiana, Kentucky, ho, Iowa, York, Oklahoma, Oregon, Utah New Nebraska, Nevada, Minnesota, Michigan, Washington. Island, Wisconsin, Jersey, Penn- New Rhode govern- hold now that the doctrine of immunity long mental since devoid of — justification any valid abolished —is

this Commonwealth. 305 A.2d 878. hope

I had dared to and believe that we

someday might opinion close out an phraseology.

this court similar Such profession

result cause the and the great to exclaim “we have a Su- Moreover,

preme Court”. of more im- just.

portance, would be

I condemn I believe justice demands, dictates, reason mo-

rality mandates and elemental considera-

tion of conscience decree a change in confi- justice, quality

dence which ac- Webster, to Daniel

cording great- is “man’s quest

est interest on earth”. Man’s eternal justice equal dignity is of with his certainty.

search for legal

I monstrosity would condemn this richly

the oblivion which it so deserves.

I am authorized to state that Mr. Justice joins

BROCK in this dissent.

LAWRENCE COUNTY HIGHWAY

DEPARTMENT and Aetna Insur Company, Appellants,

ance HARDIMAN, Appellee.

J. W. Tennessee. 22, 1975.

Dec.