March 29th, 2023
On February 16, 2023, the Tennessee Supreme Court released its opinion for Penny Lawson et al. v. Hawkins County, Tennessee et al., which clarified that Tenn. Code Ann. § 29-20-205 of the GTLA’s “waiver of immunity for ‘negligent’ acts includes only ordinary negligence, not gross negligence or recklessness.” Penny Lawson et al. v. Hawkins County, Tennessee et al., No. E2020-0159-SC-R11-CV, at *14 (Tenn. Feb. 16, 2023). Tenn. Code Ann. § 29-20-101 et seq. provides immunity for numerous actions committed by covered governmental entities and their employees. Tenn. Code Ann. § 29-20-205 removes immunity for injury caused by a negligent act or omission of an employee and provides a list of exceptions to removal of immunity.
In this case, “a mudslide washed away part of Highway 70 on Clinch Mountain in Hawkins County, Tennessee.” Penny Lawson et al, No. E2020-0159-SC-R11-CV, at *2. One driver “called the Hawkins County Emergency Communications District . . . to report that trees were blocking the road . . . [which] would [cause a driver to] ‘go off the road’” Id. A Hawkins County deputy went to the location and told the dispatcher that there was a mudslide. Id. However, neither the deputy nor the dispatcher discussed closing the road. Id. They even made a joke about a rock hitting the deputy while he was evaluating the road. Id. The dispatcher called “the Tennessee Department of Transportation, the director of the Hawkins County Emergency Management Agency, and the Holston Electric Company.” Id.
Shortly thereafter, the deputy called and notified the Emergency Communications District that two vehicles had rolled down the mountain, leaving one driver, Steven Lawson, trapped for eleven hours before he was reachable. Id. Sadly, Lawson passed away from his injuries. Id. Following the two accidents, the deputy said he would request that the road be blocked. Id. Lawson’s widow, Penny Lawson, filed suit against numerous governmental entities and “alleged that ‘grossly negligent and reckless conduct’ by these parties and their employees caused Lawson’s death.” Id. at *3.
On appeal, the Tennessee Supreme Court determined whether “the Tennessee Governmental Tort Liability Act lifts immunity for grossly negligent and reckless employee actions, in addition to merely negligent ones.” Id. at *4. The Tennessee Supreme Court clarified that the GTLA only removes immunity for the ordinary negligent acts or omissions of employees, not the grossly negligent or reckless acts or omissions of employees. Id. at *14. What this ruling means is that it is not proper for a plaintiff to sue a governmental entity for the grossly negligent or reckless acts or omissions of its employees under the statute because immunity is not removed for these standards of conduct by the statute. Id. at *11. However, a plaintiff could sue the governmental employee individually for gross negligence or recklessness. Id.
In light of this ruling, governmental entities should consult with their counsel regarding whether and how to protect their employees from any exposure that this ruling may create which may include considering adjusting insurance coverage. Additionally, should a plaintiff sue a governmental entity asserting ordinary negligence and a governmental employee asserting gross negligence or recklessness in the same lawsuit, whether the case is decided by a jury rather than by a judge may be affected. This could increase the costs of defending such cases as the preparation for a jury trial sometimes differs from preparation for a bench trial. Governmental entities are encouraged to speak with their counsel regarding these risks.
Rainey, Kizer, Reviere & Bell will continue to send updates as they become available. Should you have questions or concerns regarding this decision, please contact our office and connect with us on LinkedIn.