Winslоw WATSON, Petitioner/Appellant, v. TENNESSEE DEPARTMENT OF CORRECTION, Tennessee Board of Paroles, Correction Corporation of America, and Jody Benjamin, Respondents/Appellees, et al.
Court of Appeals of Tennessee, Middle Section, at Nashville.
Jan. 9, 1998.
Permission to Appeal Denied by Supreme Court May 26, 1998.
Winslow Watson, Only, pro se. John Knox Walkup, Attorney General and Reporter, John R. Miles, Counsel for State, Nashville, for Tennessee Department of Correction and the Tennеssee Board of Paroles.
Restatement (Second) of Torts § 317 (1964). We conclude that the master-servant exceptiоn found in section 317 does not apply to this case because (1) the undisputed evidence demonstrates that Tom Tinsley was upon the Newtons’ premises at the time of the shooting, and not upon Tinsley‘s prеmises (or premises upon which Tom Tinsley had a privilege of entry only as Tinsley‘s servant), and (2) even if Tom Tinsley could be characterized as his wife‘s servant, the record fails to indicate that Tinsley had the means and/or the ability to control her husband.
We additionally reject the Newtons’ contention that the evidence creates an issue as to Tinsley‘s liability under section 302B of the Restatement. Section 302B prоvides that:
An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.
Restatement (Second) of Torts § 302B (1964). In their reply brief, the Newtons cite the following illustration to section 302B in support of this theory:
A is the landlord of an aрartment house. He employs B as a janitor, knowing that B is a man of violent and uncontrollable temper, and on past occasions has attacked those who argue with him. C, a tenant of one of the apartments, complains to B of inadequate heat. B becomes furiously angry and attacks C, seriously injuring him. A may be found to be negligent toward C.
Restatement (Second) of Torts § 302B cmt. e illus. 9 (1964). The imposition of liability undеr this section requires that the actor have exposed the other to “a person whom the actor knows or should know to be peculiarly likely to commit intentional misconduct.” Restatement (Seсond) of Torts § 302B cmt. e (1964). The record in this case fails to support a finding of liability under section 302B because the evidence indicates that, when she asked her husband to perform roadwork on the Long farm рroperty, Tinsley neither knew nor should have known that her husband was “peculiarly likely to commit intentional misconduct.” Id. Although Tinsley knew her husband was being treated for depression, the undisputed evidence reveals that Tom Tinsley never committed violent acts toward another prior to April 26, 1995.
As this court has observed, the common-law rule that persons generally have no duty to protect others from harm by third partiеs, while seemingly harsh, remains the law in this jurisdiction. Nichols v. Atnip, 844 S.W.2d at 662. We recognize that this rule has been the subject of criticism by various legal authorities. See Restatement (Second) of Torts § 314 cmt. c (1964). In the absence of a special relationship between either Tinsley and her husband or Tinsley and the Newtons, however, we are constrained to hold that Tinsley owed no legal duty to protect or warn the Newtons in this case.
The trial court‘s order granting Tinsley‘s motion for summary judgment and dismissing the Newtons’ claim against Tinsley in her individual capacity is affirmed. Costs of this appeal are taxed to the Newtons, for which execution may issue if necеssary.
HIGHERS, J., and WILLIAMS, Senior Judge, concur.
OPINION
This is an appeal by petitioner/appellant, Winslow Watson, from a decision of the chancery court dismissing his petition for a declaratory judgment pursuant to the Declaratory Judgment Act,
Pеtitioner filed an action in the United States District Court, Middle District of Tennessee, alleging a violation of his due process and Eighth Amendment rights. Petitioner alleged Jeff Morris, Jody Benjamin, Charles Self, and Richard Anderson viоlated his rights during a 16 November 1992 disciplinary proceeding. A jury heard the case and awarded Petitioner compensatory and punitive damages on 4 April 1996.
Petitioner then filed a petition for declarаtory order pursuant to the Declaratory Judgment Act on 22 May 1996. He named the Tennessee Department of Correction (“TDC“), Tennessee Board of Paroles (“TBP“), the Correction Corporation of Amеrica (“CCA“), and Jody Benjamin1 as respondents. Petitioner alleged the punishment rendered during the disciplinary proceeding had adversely affected his parole date. He then requested the following rеlief:
- That the Parole Board be ordered to release Petitioner on parole immediately.
- That Petitioner‘s conviction be rendered void for the violation of his [Eighth and Fourteenth] Amendments [sic] rights.
- Thаt any record of the November 16, 1992 disciplinary conviction be removed from my prison record, and the record of the I.A.S. placement.
That T.C.A. 41-24-110 ,41-24-109 as it relates to contractors for correctionаl services be declared unconstitutional.
CCA responded by filing a motion to dismiss for failure to state a claim upon which relief can be granted. CCA argued Petitioner did not allege “any actions or inactions on behalf of [CCA] to which relief can be granted” and “[t]he Petition asked for declaratory relief that is not within the discretion or control of [CCA].” TDC and TBP filed a motion to dismiss pursuant to
Petitioner filed a motion to amend on 19 December 1996. He requested the court return six months of good time credit revoked as a result of the disciplinary proceeding. Petitioner filed a second motion for summary judgment on 19 December 1996. The court granted Petitioner‘s motion to amend, but noted that the order did not affect the previous order granting CCA‘s motion to dismiss.
The сourt filed a memorandum and order on 30 January 1997. The court granting TDC and TBP‘s motion. Thereafter, Petitioner filed a timely notice of appeal as to the 30 January order. There are three issues before this court. These are: 1) whether a party can bring an action pursuant to the Declaratory Judgment Act against the State; 2) whether a party can bring a declaratory judgment action against TBP; and 3) whethеr a party must comply with
The most recent case to address the issue of whether a party can bring an action pursuant to the Declaratory Judgment Act against the State is Spencer v. Cardwell, 937 S.W.2d 422 (Tenn.App.1996). In Spencer, the Western Section of this court affirmed a trial court‘s order dismissing a complaint for lack of subject matter jurisdiction. The plaintiff in Spencer had brought an action pursuant to the Declaratory Judgment Act against the Department of Mental Health and Mental Retardation and its Commissioner. The appellate court began its analysis by discussing sovereign immunity. The court held: “no suit against the State may be sustained absent express authorization from the Legislature.” Spencer v. Cardwell, 937 S.W.2d 422, 423 (Tenn.App.1996) (citing Coffman v. City of Pulaski, 220 Tenn. 642, 422 S.W.2d 429 (1967)). The court then continued by explaining that
It is the opinion of this court that the court‘s analysis in Spencer applies to Petitioner‘s case as well. There is no evidence the General Assembly affirmatively authorized suits against the State when it enacted the Declaratory Judgment Act. See Hill, 286 S.W.2d at 871. Therefore, it follows that the chancery court lacked subject mattеr jurisdiction.
Having found that Petitioner can not proceed under the Declaratory Judgment Act, we now determine whether he can proceed under the Uniform Administrative Procedures Act (“UAPA“),
This leaves us with the issue of whether Petitioner could rely on the UAPA to support his claim against TDC. A petitioner must comply with
Therefore, it follows that the decision of the chancery court is affirmed аnd the case is remanded to the chancery court for any further necessary proceedings. Costs on appeal are taxed against petitioner/appellant, Winslow Watson.
CANTRELL and KOCH, JJ., concur.
LEWIS, Judge.