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IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE
October 4, 2000 Session LARRY W. STEWART v. STATE OF TENNESSEE
Appeal by Permission from the Court of Appeals, Middle Section Tennessee Claims Commission, Middle Division No. 10917201 Hon. W.R. Baker, Commissioner

No. M1998-00304-SC-R11-CV - Filed December 20, 2000

In this case, we determine whether the Tennessee Claims Commission properly asserted jurisdiction pursuant to Tennessee Code Annotated sections 9-8-307(a)(1)(E) and -307(a)(1)(F) for the alleged negligence of a state highway patrol officer in failing to properly control county police authorities at an arrest scene. The Court of Appeals affirmed the Commission's exercise of jurisdiction, and the State requested permission to appeal on the issue of whether the Claims Commission properly asserted jurisdiction and whether the plaintiff, who stepped into the road before being hit by the truck, was fifty percent (50%) or more at fault for his accident. We hold that the Claims Commission lacked jurisdiction in this case under either section 9-8-307(a)(1)(E) or section 9-8307(a)(1)(F), and because the Claims Commission possessed no jurisdiction to hear the plaintiff's claims, we decline to reach the issue of whether the plaintiff was more than fifty percent (50%) at fault for his accident. Accordingly, the judgment of the Court of Appeals finding proper jurisdiction is reversed, and the plaintiff's claim against the State is dismissed. Tenn. R. App. P. 11 Application for Permission to Appeal; Judgment of the Court of Appeals Reversed; Claim Dismissed WILLIAM M. BARKER, J., delivered the opinion of the court, in which E. RILEY ANDERSON, C.J., and FRANK F. DROWOTA, III, ADOLPHO A. BIRCH, JR., and JANICE M. HOLDER, JJ., joined. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Laura T. Kidwell, Assistant Attorney General, Nashville, Tennessee, for the appellant, State of Tennessee. Randy Hillhouse, Lawrenceburg, Tennessee, for the appellee, Larry W. Stewart.

OPINION

Shortly before midnight on September 20, 1991, Tennessee Highway Patrol Officer Billy Ray was on duty in Hohenwald, Tennessee, when he received a radio dispatch from the Lewis County Sheriff's Department notifying him that a blue 1974 Chevy Nova was speeding on Highway 99. Trooper Ray set up a radar station, and within minutes, he saw the car speed by at about 80 miles per hour. Ray activated his emergency lights and siren, and he stopped the car on an incline heading west away from Hohenwald. Trooper Ray parked his patrol car behind the Nova. After arresting the driver of the Nova for speeding and driving on a revoked license, Ray placed him in the back seat of his cruiser. In the meantime, two deputies and three reserve deputies from the Lewis County Sheriff's Department arrived in two patrol cars and parked behind Ray's vehicle on the right shoulder of the highway. Although Trooper Ray had not summoned the other county deputies or otherwise requested their assistance, the deputies stated that they were responding to the same dispatch that was received by Ray. After the driver of the Nova was arrested, he requested that Ray release the Nova into the custody of the passenger in the car. Trooper Ray complied with the driver's request after confirming that the passenger had a valid driver's license and was otherwise competent to drive. As Ray was in the process of releasing the Nova into the custody of the passenger, the Nova slipped out of gear and began to roll backwards down the incline toward Ray's cruiser. A Lewis County deputy leaped into the car and applied the brake, thereby preventing a collision with Ray's patrol car. The passenger then asked the Lewis County deputy, who was still in the car, to steer the Nova to the opposite shoulder of the highway so that she could drive the car to its owner in Hohenwald. In the process of turning the Nova around, the Nova stalled in the middle of the highway and would not restart. Three of the county deputies, including the plaintiff, reserve deputy Larry Stewart, then pushed the stalled car to the other shoulder. After the deputies tried unsuccessfully to restart the car, Trooper Ray permitted the former driver of the car to attempt to start the car, but he was also unsuccessful. Because the car was now parked on a downward slope, the county deputies, who were unsure as to whether the car would slip out of gear again, decided to roll the car to the bottom of the hill where it could rest safely. Apparently, one of the deputies was steering the car, one deputy was pushing the car from behind, and the plaintiff was pushing the car somewhere near the driver's side door. As the car was being pushed to the bottom of the hill, the passenger asked one of the county deputies to take her into Hohenwald to notify the owner of the car of its condition. Trooper Ray then prepared to pull his patrol car in behind the Nova to provide any needed assistance once the owner arrived. Shortly after the Nova reached the bottom of the incline, the plaintiff started to walk back across the road when he was struck by a pick-up truck traveling into town. The impact knocked the plaintiff almost ninety feet away into a guard rail. Although the plaintiff miraculously survived the impact, he suffered substantial injuries to his head resulting in permanent and irreversible brain damage. The plaintiff also suffered, among other things, a severe fracture to his spine and significant -2-

injuries to his kidneys. After the plaintiff was struck, Trooper Ray notified the dispatcher to send an ambulance, and he pulled his patrol car behind the Nova on the other side of the road. In the meantime, county deputies notified the city police department and diverted traffic away from the accident site. Less than six minutes had elapsed from the time of Trooper Ray's release of the Nova to the plaintiff's accident. On July 21, 1993, the plaintiff filed his formal claim with the Tennessee Claims Commission alleging that his injuries were proximately caused by Trooper Ray's negligence in not calling a towtruck for the disabled car and in failing to properly control traffic around the arrest scene.1 Eight months later in March of 1994, the State filed a motion to dismiss the claim for failure to allege any grounds of liability within the permissible categories of claims listed in Tennessee Code Annotated section 9-8-307(a)(1). In response, the plaintiff moved to amend his claim to allege that the officer's alleged negligence fell within three specific categories of liability: (1) negligent care, custody, or control of personal property under section -307(a)(1)(F) based on Ray's "negligent release of custody of the vehicle" and negligence "in refusing to call a wrecker to remove the car"; (2) negligent operation or maintenance of any motor vehicle under section -307(a)(1)(A) "since the operation of the vehicle by the deputies was under the direction and supervision of the Tennessee Highway Patrol"; and (3) actions resulting in a dangerous condition on state-maintained highways under section -307(a)(1)(J) based on Ray's "failure to adequately control and maintain an arrest scene." The Commission granted the plaintiff's motion to amend and denied the State's motion to dismiss, finding that a sufficient jurisdictional basis had been alleged. Over four years later, the plaintiff's claim was heard before the Commission. After hearing testimony from several witnesses, the commissioner concluded that the issue of whether Trooper Ray was in control of the arrest scene had to be determined by the "actual facts of what went on out there." He then concluded that no one was in charge "[b]ecause these people all knew each other, and they all deferred to each other." The commissioner also concluded that Trooper Ray was not negligent in failing to call a tow truck because a general order from the Department of Safety directed Ray to follow the wishes of the driver in disposing of the vehicle. Finally, the commissioner concluded that the car was not in the custody of Trooper Ray at the time of the plaintiff's accident

The plaintiff originally filed his claim on June 23, 1992, against the State of Tennessee in the Divisio n of Claims Administration. In this original claim, the plaintiff alleged two separate grounds for relief against the State: (1) that "Troop er Ray was n egligent in failin g to call a wrecker to tow in the disabled vehicle"; and (2) that Ray was negligent in "failing to warn o n-coming tra ffic of highway obstructions." The Division of Claims took no action on the claim, and the claim was forwarded to the Tennessee Claims Commission on September 21, 1992. In the complaint filed before the Tennessee Claims Commission, the plaintiff alleged that the State "wa s guilty of the following sp ecific acts of negligen ce": (1) "that the State of Te nnessee did not prop erly control the arrest scene"; (2) "that the State of Tennessee should not have instructed the claimant to attempt to move the vehicle in the fashion he was directed to"; (3) "that the State Highway Patrol Officer at the scene did not have proper equipment or manpower available to adequately control and maintain the arrest scene"; and (4) "that the State Highway Patrol Officer was negligent in no t calling an autho rized wrec ker to remo ve the autom obile in que stion from the r oadway." The plaintiff also filed a claim for damages against Lewis County and the Lewis County Sheriff's Department in the Lewis Co unty Circuit Co urt. This claim against these two defendants was later settled, and the only issue before the Claims C ommission was that of the Sta te's alleged neg ligence.

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because Ray had previously released custody and control of the car pursuant to the driver's wishes.

Despite concluding that Trooper Ray had no actual control over the scene and that Ray did not have actual custody of the car at the time of the plaintiff's accident, the commissioner assessed ten percent (10%) fault against the State of Tennessee for the "negligence of Mr. Ray because he could have and ought to have stepped in and taken charge of this situation more strongly than he did." The commissioner also stated that "[t]he only thing more that Mr. Ray could have done that he ought to have done that he failed to have done . . . is to say to a bunch of volunteer deputies in the middle of the night, you all shut up and go sit down . . . ." Although he found liability on the part of the State, the commissioner did not specify the provision(s) of section 9-8-307(a)(1) under which he was imposing liability. Finally, the commissioner found the plaintiff's damages to be $300,000, and he assessed the remaining fault as follows: seventy percent (70%) to the driver of the pickup truck which struck the plaintiff; twelve percent (12%) to the plaintiff; and eight percent (8%) to the other Lewis County deputies. On appeal to the Court of Appeals, the State argued that any negligence of a state trooper in failing to supervise county deputies did not fall within any provision of section 9-8-307(a)(1), and that as such, the Claims Commission was without jurisdiction to assess fault against the State. The intermediate court disagreed, holding that the findings of the commissioner fell within the category of "negligent care, custody, and control of persons" under section -307(a)(1)(E) and within the category of "negligent care, custody or control of personal property" under section -307(a)(1)(F). The Court of Appeals also found that the evidence in this case supported the commissioner's findings that Trooper Ray was negligent, that such negligence was the proximate cause of the plaintiff's injuries, and that the evidence did not preponderate against the commissioner's apportionment of fault to the plaintiff. The State then requested permission to appeal to this Court, which was granted on the following three issues: (1) whether the State can be held liable under Tennessee Code Annotated section 9-8-307(a)(1)(E) for the failure of a state trooper to adequately supervise sheriff's deputies at the scene of the arrest; (2) whether the State can be held liable under Tennessee Code Annotated section 9-8-307(a)(1)(F) for personal injuries suffered by a deputy sheriff arising out of a state trooper's negligent control of personal property (a disabled car); and (3) whether the evidence preponderates against the assessment of twelve percent (12%) fault to the plaintiff. For the reasons given herein, we hold that the Tennessee Claims Commission improperly exercised jurisdiction under either section 9-8-307(a)(1)(E) or section 9-8-307(a)(1)(F) to award a monetary claim against the State of Tennessee. Because we hold that the Claims Commission was without jurisdiction in this case, we decline to reach the question of whether the evidence preponderates against the commissioner's finding that the plaintiff was twelve percent (12%) at fault for his own injuries. Accordingly, we reverse the judgment of the Court of Appeals and dismiss the plaintiff's claim against the State of Tennessee. JURISDICTION OF THE CLAIMS COMMISSION -4-

It is a well-settled principle of constitutional and statutory law in this state that "[t]he State of Tennessee, as a sovereign, is immune from suit except as it consents to be sued." Brewington v. Brewington, 215 Tenn. 475, 480, 387 S.W.2d 777, 779 (1965). This doctrine of sovereign immunity "has been a part of the common law of Tennessee for more than a century and [it] provides that suit may not be brought against a governmental entity unless that governmental entity has consented to be sued." Hawks v. City of Westmoreland, 960 S.W.2d 10, 14 (Tenn. 1997). Despite this general grant of immunity, however, the courts of this state have frequently recognized that the Tennessee Constitution has modified this rule of absolute sovereign immunity by providing that "[s]uits may be brought against the State in such manner and in such courts as the Legislature may by law direct." Tenn. Const. art. I,

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