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IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON
SEPTEMBER 19, 2001 Session DARIN SHAFFER, ET AL. v. SHELBY COUNTY, TENNESSEE
Direct Appeal from the Circuit Court for Shelby County No. 86335-9 T.D.; The Honorable Robert L. Childers, Judge

No. W2000-02215-COA-R3-CV - Filed January 11, 2002

This appeal involves an accident in which a mother and son were hit by an automobile. The mother received fatal injuries in the accident. The survivors brought an action against Shelby County for the wrongful death of the mother and for negligent infliction of emotional distress with respect to the son. A jury found Shelby County liable for $12,039,049.01. The award was reduced in accordance with the Governmental Tort Liability Act (the GTLA) to $260,000.00 plus discretionary costs of $5,434.55. The plaintiffs appealed the reduction of liability alleging that the GTLA violated the Tennessee Constitution and should be judicially abrogated. The plaintiffs further allege that even if the GTLA is upheld, liability should be capped at $350,000.00 as opposed to $260,000.00. Shelby County also raises several issues in this appeal. First, Shelby County alleges that it was performing a discretionary function, which immunizes it from liability. Shelby county also contends that the proof shows the mother to be at fault and fails to show that the son suffered a serious emotional injury. In addition, Shelby County argues that the verdicts were excessive and were tainted by inappropriate arguments made during the plaintiffs' closing. Finally, Shelby County alleges that the trial court erred by assessing discretionary costs, which caused the award to exceed the GTLA's statutory cap on damages. For the following reasons, we reverse the trial court's award of discretionary costs and affirm the trial court in all other respects.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Affirmed in Part, Reversed in Part and Remanded ALAN E. HIGHERS , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S., and HOLLY KIRBY LILLARD , J., joined. Thomas J. Cullen, Jr., Ericka L. Kleiman, Baltimore, MD; Scott A. Frick, Memphis, TN, for Appellants Carroll C. Johnson, Memphis, TN, for Appellee, Shelby County, Tennessee

Paul G. Summers, Attorney General & Reporter, Michael E. Moore, Solicitor General, Laura T. Kidwell, Assistant Attorney General, Nashville, TN, for Intervenor-Appellee, State of Tennessee

OPINION I. Facts and Procedural History

On October 2, 1996, Andrea Shaffer (Ms. Shaffer) was struck and killed by an automobile. The accident occurred while Ms. Shaffer was jogging westbound in the Riverwood Farms Subdivision on the north side of Riverwood Farms Parkway immediately adjacent to the curb. Darin Andrew Shaffer (Darin), Ms. Shaffer's son, was with her at the time of the accident. Darin was being pushed in a jogging stroller, which was also hit by the automobile. Ms. Shaffer was survived by her husband, Darin Leo Shaffer (Mr. Shaffer), and two minor children, Darin and Jenna Shaffer (Jenna; Ms. Shaffer's husband and children shall be collectively referred to as Appellants). Under various theories of negligence, Appellants filed a complaint against numerous defendants including Shelby County, Tennessee (Appellee) for the wrongful death of Ms. Shaffer and for injuries sustained by Darin. Appellants claimed that Appellee was under a contractual obligation with a subdivision developer to install a sidewalk along the parkway where the accident occurred. Although developers normally assume the duty to install sidewalks, Appellee had been paid $42,570.42 by the developer in 1986 to complete the project. At the time of the accident, in 1996, Appellee had not yet finished the sidewalks due to complaints lodged by fellow residents in the development. Appellants claimed that the failure to complete the project constituted negligence on the part of Appellee and was the direct and proximate cause of Ms. Shaffer's death and Darin's injuries. The matter was tried before a jury. The jury found in favor of Appellants and allocated seventy-five percent of the fault to Appellee. No fault was apportioned to Ms. Shaffer.1 The jury awarded Appellants damages totaling $16,052,065.34 as follows: Andrea Shaffer - pain and suffering Medical Expenses Funeral Expenses Pecuniary value of life of Andrea Shaffer Darin Leo Shaffer - Loss of Consortium Jenna Shaffer - Loss of Consortium Darin Andrew Shaffer - Loss of Consortium Darin Andrew Shaffer - Emotional Distress $5,000,000.00 $41,173.14 $10,892.20 $500,000.00 $2,500,000.00 $5,000,000.00 $2,500,000.00 $500,000.00.

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The rem aining twenty-five p ercen t of fau lt was allocated to a non -party.

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Accordingly, $12,039,049.01 of the damages were allocated to Appellee based on their percentage of fault. Soon after the verdict was announced, Appellee filed a motion to set the liability limits in accordance with Sections 29-20-101 et. seq. of the Tennessee Code, the Governmental Tort Liability Act (the GTLA). Appellants' opposition to the motion filed by Appellee consisted in part of allegations that the GTLA violated the Tennessee Constitution and should be judicially abrogated. The State of Tennessee intervened to defend the constitutionality of the GTLA and has also taken part in this appeal. The trial court granted Appellee's motion and set Appellee's liability at $260,000.00: $130,000.00 for the wrongful death of Ms. Shaffer and $130,000.00 for Darin's individual claim. Appellants appeal from that decision and both sides have raised numerous issues for our review. II. Issues Appellants raise the following issues in this appeal: 1. 2. Whether sovereign immunity should be abrogated in Tennessee; Whether the liability limits proscribed in the Governmental Tort Liability Act violate the Tennessee Constitution; Whether the trial court erred in subjecting the awards for loss of consortium to the statutory limits proscribed in the Governmental Tort Liability Act; and Whether the trial court erred by not taking into account the loss of consortium claims in setting Appellee's total liability at $260,000.00 as opposed to $350,000.00. Appellee raises the following issues in this appeal: 5. Whether the decision of Shelby County to defer construction of sidewalks in Riverwood Farms Subdivision was a discretionary function for which the county is immune from liability pursuant to Section 29-20-205 of the Tennessee Code; Whether the proof was sufficient to sustain the claim of the minor plaintiff for negligent infliction of emotional distress; Whether the trial court erred by refusing to grant Appellee's motion for directed verdict based on Ms. Shaffer's alleged fault; Whether the verdicts were excessive;

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Whether counsel for Appellants made an inappropriate argument in closing statements; and Whether the trial court erred in awarding discretionary costs. III. Law and Analysis

With regard to the first issue, Appellants rely on general considerations of public policy in reaching their conclusion that this Court should judicially abolish sovereign immunity. As stated by the Tennessee Supreme Court, "only in the absence of any declaration in [the Constitution and statutes] may [public policy] be determined from judicial decisions. . . . All questions of policy are for the determination of the legislature, and not for the courts. . . . Where courts intrude into their decrees their opinion on questions of public policy, they in effect constitute the judicial tribunals as lawmaking bodies in usurpation of the powers of the legislature." Smith v. Gore, 728 S.W.2d 738, 747 (Tenn. 1987) (quoting Cavender v. Hewitt,, 239 S.W. 767, 768 (1921)). Further, as we have previously stated, sovereign immunity in Tennessee arises from our constitution as well as our statutory scheme. Austin v. City of Memphis, 684 S.W.2d 624, 637 (Tenn. Ct. App. 1984). Accordingly, Appellant's lengthy criticism of the policy defined under the doctrine of sovereign immunity and the General Assembly's refusal to abolish it is misplaced. This Court lacks authority to nullify the doctrine based on such grounds, and as such, we refuse to debate the public policy issue. Constitutionality of the GTLA With regard to the second issue, Appellants assert that the GTLA's cap on damages violates three provisions of the Tennessee Constitution: Article I, Sections 8, 17, and 21. We disagree with Appellant's contentions, however, and for the following reasons, hold that the GTLA's statutory cap on damages does not violate the Tennessee Constitution. We will first discuss the constitutionality of the GTLA with respect to Article I, Section 17 of the Tennessee Constitution. Article I, Section 17, the Open Courts Provision, provides: That all courts shall be open; and every man, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial, or delay. Suits may be brought against the State in such manner and in such courts as the Legislature may by law direct. Based on the second sentence in Article I, Section 17, our supreme court has held that, "[t]he State of Tennessee, as a sovereign, is immune from suit except as it consents to be sued." Brewington v. Brewington, 387 S.W.2d 777, 779 (Tenn. 1965) (quoting Hill v. Beeler, 286 S.W.2d 868, 869 (Tenn. 1956)). Accordingly, this provision has been deemed a grant of sovereign immunity to our State. In accordance with Article I, Section 17 of the Tennessee Constitution, the General Assembly enacted the GTLA, which directs the manner in which our State can be sued. The GTLA states that all governmental entities are immune from suit except where otherwise provided within the GTLA. TENN. CODE ANN .

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