                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                               AUGUST 4, 2009 Session

    DALTON REB HUGHES and wife, SANDRA HINES HUGHES v.
  METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON
                  COUNTY, TENNESSEE

              Direct Appeal from the Circuit Court for Davidson County
                     No. 04C-2406    Thomas W. Brothers, Judge


               No. M2008-02060-COA-R3-CV - Filed February 4, 2010


A Metro public works employee was injured when a front end loader operated by a Metro
fire department employee made a loud noise, causing the public works employee, fearing for
his life, to fall while attempting to jump over a guardrail. The injured plaintiff filed suit
against Metro and the defendant front end loader operator. Metro filed a cross-claim against
the defendant as well as a counter-claim against the plaintiff seeking a subrogation of lost
wages and medical payments recovered from the defendant. The trial court found that the
defendant acted negligently and within the scope of his employment, and thus, it found that
Metro’s immunity was removed pursuant to the Governmental Tort Liability Act.
Accordingly, the trial court entered a judgment for the plaintiff against Metro, and it
dismissed the claims against the defendant. On appeal, Metro argues that the defendant acted
intentionally, rather than negligently, and that his conduct was outside the scope of his
employment, such that Metro retains its immunity. We affirm.


  Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed

A LAN E. H IGHERS, P.J., W.S.,, delivered the opinion of the Court, in which D AVID R.
F ARMER, J., and J. S TEVEN S TAFFORD, J., joined.

Kevin C. Klein, Andrew D. McClanahan, Nashville, Tennessee, for the appellant,
Metropolitan Government of Nashville and Davidson County, Tennessee

Joe M. Haynes, Goodlettsville, Tennessee, for the appellee, Dalton Reb Hughes

Irene R. Haude, Nashville, Tennessee, for the appellee, Frank Archey
                                                 OPINION

                                I.   F ACTS & P ROCEDURAL H ISTORY

       Dalton Reb Hughes is employed by the Metropolitan Government of Nashville
(“Metro”) Fire Department, and Frank Archey is employed by Metro’s Public Works
Department. By 2003, Mr. Archey had been operating heavy equipment for approximately
twenty-five years, and a front end loader for fifteen years. He claims that other than the
incident involved in this case, he has never injured anyone while operating heavy equipment.

        Apparently, the public works department had been operating from a Charlotte Avenue
location (the “Facility”) for some time, but the fire department moved to the Facility shortly
prior to October of 2003. On October 13, 2003, Mr. Archey was operating a front end loader
in north Nashville. At the end of the day, he returned the front end loader to the Facility to
park it for the evening. According to Mr. Archey, he stopped the front end loader on
Charlotte Avenue to allow oncoming traffic to pass. He then turned left onto the access
roadway, and proceeded seventy yards to a gate. Mr. Archey claims that after turning from
Charlotte Avenue, the access roadway inclines, then it is “pretty flat for a while[,]” and then
it “declines gradually.” Mr. Archey states that he was traveling “wide open” in first gear at
approximately six to eight miles per hour1 and that he was “revving it up pretty good.” Mr.
Archey saw two pedestrians walking on the right side of the access roadway along a
guardrail, and therefore, he claims he tried to move the front end loader to the left side of the
access roadway and that he slowed to four to six miles per hour. Despite having the front end
loader’s bucket set “down to bottom-out status” so that it would not bounce, as Mr. Archey
came through the gate, he hit a dip–or a repatched pothole–which caused the bucket of the
front end loader to “bottom out”–to drop to the ground, to bounce up, and then hit the ground
again.2 Mr. Archey claims to have seen other vehicles bounce at this location.

        According to Mr. Archey, before he “bottomed out,” he saw someone “go over the
guardrail” thirty to thirty-five yards away. Subsequently, Mr. Archey discovered that the man
who had gone over the guardrail was Mr. Hughes. Mr. Archey then stuck his head out of the
front end loader cab and asked if Mr. Hughes was okay. He maintains that he did not state
that he was “just messing” with Mr. Hughes. After stopping the front end loader seven to
eight feet from the guardrail, Mr. Archey claims he again asked Mr. Hughes if he was okay,
and he stated to Mr. Hughes that he did not mean to scare him. A few days after the


       1
           The speed limit on the access road was posted at ten miles per hour.
       2
           Mr. Archey could not recall whether the front end loader’s bucket hit the ground two or three times.


                                                      -2-
incident, Mr. Archey spoke with Tommy Goad, the pedestrian walking alongside Mr. Hughes
when the incident occurred, and he claims he told him that he did not intend to scare him.
Mr. Archey maintains that he was not “horseplaying” and that he never intended to hurt or
scare anyone.

        At the time of the October 2003 incident, Mr. Archey had been working out of the
Facility for approximately twelve years, and had driven “this path” thousands of times.
However, since the fire department had moved to the Facility, the guardrail had been added,
and the route typically traveled by Mr. Archey had changed; he had only been going through
the gate for approximately two to three weeks at the time of the incident. Mr. Archey claims
that when he saw two pedestrians walking along the right side of the access roadway, he
moved into the left lane, in which he had never driven before, to avoid hitting them.
However, he also states that two bounce marks were left on the middle and right side of the
road because he was trying to avoid two to three people seventy-two to eighty yards away in
the left lane.3

        Mr. Hughes recalls the incident differently. Mr. Hughes claims that while he was
walking “right up against the guardrail” on the right side of the access road, with Mr. Goad
to his left and Charlotte Avenue to his back, he heard a “loud noise” which caused him to
turn around to see “a front end loader coming at a high rate of speed.” He maintains that he
turned back around to get out of the way when he heard the “loud, steady [scraping] noise”
of the front end loader’s bucket dropping. Mr. Hughes “thought [Mr. Archey] was almost
fixing to run over us. . . . [s]o [he] tried to get over th[e] guardrail any way that [he] could
to try to get away from him.” However, in his attempt to jump over the guardrail, Mr.
Hughes’ knees hit the top of the guardrail “and it kind of somersaulted [him] down to where
[he] hit on [his] elbows flat on the pavement real hard because [he] was trying to get out of
the way quick.” Following the incident, Mr. Hughes had surgery on both knees and both
shoulders.

      According to Mr. Hughes, while he was lying on the ground, he looked up and saw
Mr. Archey sitting on the front end loader “with a big grin on his face.” Mr. Hughes
immediately said “damn it, Frank [Archey,]” and Mr. Archey started getting off of the front
end loader apologizing and stating that he only meant to scare Mr. Hughes. While Mr.
Archey’s comments made Mr. Hughes believe that Mr. Archey was trying to play a joke on
him, Mr. Hughes admits that Mr. Archey may have said “I didn’t mean to scare you”
immediately after the incident.


        3
          The record contains a photograph which Mr. Archey contends depicts short marks consistent with
bouncing. However, the alleged marks have been “highlighted” with an ink pen, and thus, no original marks
are visible.

                                                  -3-
       Mr. Hughes describes Mr. Archey as an “acquaintance.” Mr. Archey’s mother babysat
Mr. Hughes’ children, Mr. Hughes rented a home from Mr. Archey’s aunt, and Mr. Hughes
and Mr. Archey “scouted” together “a couple of times” twenty-five to thirty years prior.
However, Mr. Hughes insists that he had had no contact with Mr. Archey in approximately
twenty-five years prior to the incident. Because of the fire department’s recent move, Mr.
Hughes had been working at the Facility for only two days at the time of the incident, and
Mr. Archey claims that he did not know of Mr. Hughes’ transfer to the Facility until after the
incident had occurred.

       Mr. Goad, the fire department employee with whom Mr. Hughes was walking when
the incident occurred, states that when he heard a noise that “sounded kind of like an
engine[,]” he “didn’t think a whole lot about it[.]” However, “all of a sudden, it was a
different kind of sound, like something hit pavement, or something touched concrete or
pavement of something.” He stated that the sound was not like a “quick bounce” but was a
dragging sound which “was on the pavement and stayed on the pavement. It stayed on it.
It never did let up.” After hearing the second sound, Mr. Goad looked to his left, but did not
see anything. When he turned back around he no longer saw Mr. Hughes. He looked over
the guardrail and heard Mr. Hughes, who was lying on the ground, state that he “thought
[he] was going to get run over[.]” Mr. Goad claims that immediately after the incident, he
heard Mr. Archey ask Mr. Hughes if he was okay and then state that he “didn’t mean for you
to get hurt[,]” that he “was just trying to scare you.” Some time later, “at the shop,” Mr.
Goad again heard Mr. Archey state that he “was just trying to scare you all and [he] didn’t
mean for nobody to get hurt or nothing like that.” 4

        Mr. Goad states that he normally traveled on the access road each evening to retrieve
his vehicle from the employee parking lot. He claims that he has never had a problem
walking that path before, and that he was used to hearing engine noises of vehicles coming
by to refuel. Although he admits that the second sound was “different,” it did not cause him
to be afraid or to alter his walking path. However, he points out that he did not see the front
end loader before Mr. Hughes went over the guardrail, and that if he had, he may have acted
differently.

       Immediately after the incident, Mr. Goad recalls looking back at the front end loader
and noticing that it was not pointed straight down the access road, but instead, that it was
angled towards, and only one to two feet from, where he and Mr. Hughes had been walking.
He insists that no other vehicles were approaching, and thus, that Mr. Archey had no reason


        4
          Mr. Goad admitted that in his 2006 deposition he stated that after the date of the incident he had
not heard Archey again mention the incident. However, he stated that his recollection regarding the second
statement had been refreshed.

                                                    -4-
to angle the front end loader towards them.

       Metro fire department employee Darrell Pulley was standing with his back to the
access road when the incident occurred. He claims that he heard a “engine revving up”
which caused him to turn around. He saw the front end loader’s bucket drop and drag “for
an estimated twelve to twenty feet” and then stop “within inches” of where Mr. Hughes had
been standing. He maintains that when the bucket dropped, there was a continual scrape
across the ground, and that what he saw was not consistent with someone “bottoming out”
coming through the gate. Although he admits that a grade change may exist at the gate, Mr.
Pulley insists that there was no pothole on the date of the incident, and that he had never seen
patched or working potholes in the gate area. Additionally, he maintains that the access road
is wide enough to allow for both pedestrians and a front end loader.

       After Mr. Archey stopped the front end loader, but while he was still sitting on it, Mr.
Pulley claims that Mr. Archey “kind of chuckled and laughed and said I wasn’t trying to hurt
you, I was just trying to scare you.” He maintains that Mr. Archey “said the same thing”
while Mr. Pulley was helping Mr. Hughes to his car. Finally, Mr. Pulley alleges that
approximately one week after the incident, while he was at the maintenance shop, he again
heard Mr. Archey state that he “wouldn’t hurt [Mr. Hughes] for anything in the world. . . .
[that he] was just trying to scare him. Scare you all.”

        Pat Armstrong, another Metro fire department employee, like Mr. Pulley, recalls
hearing a continuous scrape noise coming from the front end loader. He also heard Mr.
Archey state “look, [Mr. Hughes], I was just joking. I didn’t mean to do that. I was just
trying to scare you all.” Approximately one week after the incident, Mr. Armstrong again
heard Mr. Archey say that he was trying to scare Mr. Hughes and that he did not intend to
harm anyone. He claims he never heard Mr. Archey say that he “bottomed out” on a dip in
the road.

       However, Metro public works employee John David Pope remembers hearing one
quick noise at the time of the incident. He maintains that there is “like a little dip” when you
come through the gate which causes a “kind of bounce a little bit[.]” Mr. Pope has operated
a front end loader through the gate, and although he has “[k]ind of jarred [the front end
loader] a little bit,” he has never made a noise going through that area.

        Following the incident, Mr. Hughes filed a complaint against Metro and Mr. Archey,
asserting the negligence of both, on August 19, 2004. He later amended his complaint to
allege that Mr. Archey committed an intentional act by operating the equipment for the
purpose of causing Mr. Hughes “to believe it was a run away piece of equipment.” Metro
filed a cross-claim against Mr. Archey seeking both a judgment against him for any loss

                                              -5-
Metro suffers and to recover lost wages and medical expenses paid by Metro. Metro also
filed a counter-claim against Mr. Hughes seeking a subrogation of lost wages and medical
payments recovered from Mr. Archey, and claiming a set-off for lost wages and medical
payments paid by Metro if comparative fault was apportioned to Mr. Hughes.

        Following a trial, the trial court entered an order of August 22, 2008, which states, in
part:

        [T]he Court finds that [Mr. Hughes] failed to prove negligent supervision,5 that
        this is not an intentional tort, and that Frank Archey was negligent while he
        was acting within the scope of his employment for Defendant Metro[]. The
        Court finds that the Plaintiff, Dalton Reb Hughes, is entitled to recover from
        the Defendant, Metro[] the amount of . . . $250,000.00 . . . for the damages he
        suffered. The Court further finds that [Mr. Hughes] was not guilty of any
        comparative fault.

                 Mr. Archey was an employee of the Metropolitan Government on
        October 17, 2003, and was acting within the course and scope of his
        employment in his operation of the front loader. Furthermore, the Court finds
        that Mr. Archey owed a duty of ordinary care to those around him, particularly
        the pedestrians who Mr. Archey knew were in the front loader’s path. The
        Court also finds that Mr. Archey breached that duty of care, and furthermore,
        that it was foreseeable that this breach would result in injury to the pedestrians,
        including Mr. Hughes. Finally, the Court finds that Mr. Archey’s actions were
        the cause-in-fact and the legal cause of Mr. Hughes’ injuries. Accordingly, the
        court enters judgment in favor of Mr. Hughes on his direct negligence claim
        against the Metropolitan Government.

               The Court finds that Mr. Archey’s actions constitute negligence, not an
        intentional tort. The Court notes that this incident occurred on a Friday
        afternoon at the end of the work day. Mr. Archey was aware that there were
        pedestrians walking on the right side of the road on which he was driving;
        however, he did not pull the front loader over to the left side of the roadway,
        even though he clearly had room to do so. Furthermore, Mr. Archey was
        aware that there was a dip in the roadway, but he approached this dip without
        slowing down. The Court finds that under these circumstances, at the rate of
        speed Mr. Archey was traveling, it was foreseeable to him that the front loader
        would bounce as it traveled over the dip, which would cause the bucket to hit

        5
            This finding is not challenged on appeal.

                                                        -6-
      the pavement, which would make a very loud noise. It was foreseeable that the
      pedestrians would be startled. Mr. Archey did not intend to cause harm to
      Plaintiff or any other person.

             With respect to whether Mr. Archey’s actions were negligent or
      intentional, the Court finds that Mr. Archey intentionally revved up the motor
      on the front loader and bounced it over the dip in the roadway to make a loud
      noise. In layman’s terms, Mr. Archey was “cutting up” on a Friday afternoon.
      Furthermore, while the proof does not show that Mr. Archey intentionally took
      the controls and dropped the bucket on the front loader, the Court finds that
      Mr. Archey did intend to carelessly drive the front loader over the dip to make
      the noise and commotion associated with it. However, the Court holds that
      driving the vehicle in a careless manner does not equate to an intentional tort
      as envisioned by the Government[al] Tort Liability Act.

             The Court finds that because this is a case of negligence arising out of
      Mr. Archey’s operation of equipment, T.C.A. § 29-20-202 of the
      Government[al] Tort Liability Act applies, and the Metropolitan Government’s
      immunity is removed. Because the Metropolitan Government’s immunity is
      removed, the Court finds that Mr. Archey is immune from suit. Therefore, Mr.
      Hughes’ claim against Mr. Archey is dismissed with prejudice, and the
      Metropolitan Government’s Cross-Claim against Mr. Archey is dismissed with
      prejudice.

      [T]he Court finds that Mr. Hughes has incurred damages and injuries that
      would exceed the $250,000 cap imposed by the Governmental Tort Liability
      Act. Therefore, the Court awards Mr. Hughes $250,000 in damages for []his
      pain and suffering, loss of enjoyment of life, loss of earning capacity, and
      medical expenses.      However, the Court finds that the Metropolitan
      Government is entitled to a set-off in the amount of $104,658.57 for the
      medical expenses and lost wages that it has already paid as a result of the
      October 17, 2003 incident.

From this order, Metro appeals.




                                            -7-
                                  II.    I SSUES P RESENTED

      Metro has timely filed its notice of appeal and presents the following issues for
review, summarized as follows:

1.     Whether the Circuit Court erred in holding that Tenn. Code Ann. § 29-20-202
       removes governmental immunity for injuries arising out of any operation of a motor
       vehicle or other equipment by a governmental employee, as opposed to removing
       immunity only for injuries arising out of a governmental employee’s negligent
       operation of a motor vehicle or other equipment;

2.     Whether the Circuit Court erred in holding that Frank Archey, an employee of the
       Metropolitan Government, acted negligently, as opposed to intentionally; and

3.     Whether the Circuit Court erred in holding that Frank Archey was acting within the
       scope of his employment.

        For the following reasons, we find that the trial court erred in holding that Tennessee
Code Annotated section 29-20-202 does not require negligent conduct. However, we affirm
the trial court’s judgment for Mr. Hughes against Metro, and its dismissal of Mr. Hughes’
and Metro’s claims against Mr. Archey.

                                III.    S TANDARD OF R EVIEW

       On appeal, a trial court’s factual findings are presumed to be correct, and we will not
overturn those factual findings unless the evidence preponderates against them. Tenn. R.
App. P. 13(d) (2008); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). For the evidence
to preponderate against a trial court’s finding of fact, it must support another finding of fact
with greater convincing effect. Watson v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App.
2005) (citing Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000);
The Realty Shop, Inc. v. RR Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App.
1999)). When the trial court makes no specific findings of fact, we review the record to
determine where the preponderance of the evidence lies. Ganzevoort v. Russell, 949 S.W.2d
293, 296 (Tenn. 1997) (citing Kemp v. Thurmond, 521 S.W.2d 806, 808 (Tenn. 1975)). We
accord great deference to a trial court’s determinations on matters of witness credibility and
will not re-evaluate such determinations absent clear and convincing evidence to the
contrary. Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999) (citations
omitted). We review a trial court’s conclusions of law under a de novo standard upon the
record with no presumption of correctness. Union Carbide Corp. v. Huddleston, 854
S.W.2d 87, 91 (Tenn. 1993) (citing Estate of Adkins v. White Consol. Indus., Inc., 788

                                              -8-
S.W.2d 815, 817 (Tenn. Ct. App. 1989)).

                                       IV.   D ISCUSSION

                        A. General Law of Governmental Liability

         The Tennessee General Assembly, in 1973, enacted the Governmental Tort Liability
Act (“GTLA”), “which partially waived immunities previously afforded to the government
under common law.” Pendleton v. Metro. Gov’t of Nashville and Davidson County, No.
M2004-01910-COA-R3-CV, 2005 WL 2138240, at *2 (Tenn. Ct. App. Sept. 1, 2005) (citing
1973 Tenn. Pub. Acts ch. 345, codified at Tenn. Code Ann. § 29-20-101 et seq. (2005)).
“The general rule of governmental immunity from lawsuits is set forth in Tennessee Code
Annotated § 29-20-201.” Ford v. New Greater Hyde Park Missionary Baptist Church of
Memphis, Nos. W2006-02614-COA-R9-CV, W2006-02615-COA-R9-CV, W2006-02616-
COA-R9-CV, 2007 WL 4355490, at *5 (Tenn. Ct. App. Dec. 12, 2007). There are, however,
four exceptions to this general rule enumerated in Tennessee Code Annotated sections 29-20-
202 through -205. Id. Specifically, at issue in this appeal, are sections 202 and 205.
Tennessee Code Annotated section 29-20-202 removes governmental immunity “for injuries
resulting from the negligent operation by an employee of a motor vehicle or other equipment
while in the scope of employment.” Tennessee Code Annotated section 29-20-205 removes
governmental immunity “for injury proximately caused by a negligent act or omission of any
employee within the scope of his employment[.]” There is a list of exceptions to this
exception; specifically, Tennessee Code Annotated section 29-20-205(2), often referred to
as the “intentional tort exception,” preserves governmental immunity for claims arising out
of “false imprisonment pursuant to mittimus from a court, false arrest, malicious prosecution,
intentional trespass, abuse of process, libel, slander, deceit, interference with contract rights,
infliction of mental anguish, invasion of right of privacy, or civil rights[.]”


       On appeal, Metro argues that the trial court erred in finding that Mr. Archey was
acting within the scope of his employment during the incident, and in finding that his actions
constituted negligent rather than intentional conduct. We address each finding below.


                           B.   Course and Scope of Employment


       Both Tennessee Code Annotated section 29-20-202 and section 29-20-205 remove the
government’s immunity only where the governmental employee was acting within the scope
of his or her employment. The trial court, in its order, specifically found that Mr. Archey
“was acting within the course and scope of his employment in his operation of the front


                                               -9-
loader.” However, Metro maintains that Mr. Archey’s “horseplay” was outside the scope of
his employment, and therefore Metro retains its immunity.


       Metro cites several cases in support of its argument that Mr. Archey was acting
outside the scope of his employment when Mr. Hughes was injured. First, Metro cites
Terrett v. Wray, 105 S.W.2d 93, 93 (Tenn. 1937), wherein the defendant mother sent her
“schoolboy” son to the schoolhouse to pick up other children. The defendant’s son “rigged
up a wire connecting one of the handles of the door of the car to a battery, so that one, by
grasping the handle of the door, would receive an electric shock.” Id. Terrett was injured
when he took hold of the handle, and suit was filed against the defendant mother on his
behalf. Id. Our Supreme Court, in finding that the defendant’s son was not acting within the
scope of his employment, stated:
       The act of the servant, to make the master liable, must be within the course of
       the employment when he is doing for the master, either the main act itself or
       some other act which can fairly and reasonably be deemed a proper means of
       doing the main act, or an ordinary and natural incident or a natural, direct, and
       logical result of it. Extraordinary, extreme, or prankish acts rarely can be
       attributable to the master as means or methods of carrying out an ordinary
       employment. There must be negligence of the servant within the course of
       employment and not aside from it to make the master liable. . . .


Id. In Terrett, the Court found that the mother did not authorize the boy to use the car for any
purpose other than delivering the children, and that his actions in electrifying the door handle
“had no connection with his authorized and direct use of the car, but was the distinct tort of
the son[.]” Id. at 95. Furthermore, the Terrett Court cited with approval the New Jersey
Supreme Court of Errors and Appeals’6 opinion of Evers v. Krouse, 58 A. 181, 182 (N.J.
1904), in which the New Jersey court found that a child, who was directed by his father to
use a garden hose to water the lawn but instead, “in the spirit of mischief,” turned the hose
on a horse who ran away, had acted outside the scope of his employment. The New Jersey
court, as quoted in Terrett, stated:
       If the act of the defendant’s son in throwing water upon the plaintiff’s horse
       was not the result of his careless handling of the garden hose while sprinkling
       his father’s lawn, but was deliberately done by him, purely out of a spirit of
       mischief, for the purpose of frightening the animal, the fact that he used the
       tool supplied to him for the doing of his father’s work for the accomplishment
       of his own mischievous purpose did not make it an act within the scope of his

       6
           The New Jersey Court of Errors and Appeals is now known as the New Jersey Supreme Court.

                                                 -10-
       employment, and did not render the defendant liable for the injury resulting
       therefrom.
Id. at 94 (quoting Evers, 58 A. at 182).


        Next, Metro cites Corder v. Metropolitan Government of Nashville and Davidson
County, Tennessee, 852 S.W.2d 910 (Tenn. Ct. App. 1992). In Corder, an off-duty policy
officer accidentally discharged his weapon, which he had been given permission to carry
between work and home, while “teasing” his passenger. Id. at 914. This Court upheld the
trial court’s grant of summary judgment to the Metropolitan Government, finding that the
officer was not acting within the scope of his employment despite the fact that he was
wearing a badge and that he identified himself as a deputy at the scene. Id. Metro also
contends that the case of United States v. Taylor, 236 F.2d 649 (6 th Cir. 1956) supports its
assertion that horseplay is outside the scope of an employee’s employment. In Taylor, a
United States Air Force lieutenant, disregarding his instructions to conduct specific training
exercises in a ninety mile radius, flew more than three hundred miles to his hometown in
Tennessee where he flew at an accelerated speed and at a very low altitude over the
courthouse, crashing and injuring persons on the ground. Id. at 651-52. The Court, in
determining whether the pilot’s actions were within the scope of his employment such that
the United States could be liable, stated:
       The fact that the Air Force personnel were acting in disobedience of their
       orders would not alone exculpate the government from liability under the law
       of Tennessee. The Tennessee courts have consistently held that failure to obey
       a rule as to how the master’s business is to be performed does not of itself
       constitute a departure from the servant’s scope of employment.


       Moreover the Tennessee Court of Appeals has recognized that an employee
       may remain within the scope of his employment so as to hold his employer
       liable for his tort even though he undertakes a personal project of his own, if
       it is undertaken in the general course of carrying out his employer’s business.


Id. at 654 (internal citations omitted). However, the Court reasoned that by flying three
hundred miles, the pilot “completely abandoned the business of his employer[,]” and that
“[s]uch a geographical deviation alone would under Tennessee law clearly remove these
employees from the scope of their employment.” Id. (citations omitted). Furthermore, the
Court found it “equally clear” that had “the pilot’s conduct occurred within the authorized
geographical area, it would not have been within the scope of his employment under
Tennessee law[,]” Id. which holds that “‘[e]xtraordinary, extreme, or prankish acts rarely can


                                             -11-
be attributed to the master as means or methods of carrying out an ordinary employment.”
Id. (quoting Terrett, 105 S.W.2d at 94).


        Finally, Metro cites Morris v. Collis Foods, Inc., No. W2001-00918-COA-R3-CV,
2002 WL 1349514, at *1 (Tenn. Ct. App. June 19, 2002), in which this Court held that a
waitress was acting outside the scope of her employment when she threw an object at an
unruly patron. This Court noted that it often looked to the Restatement (Second) of Agency
to determine whether an employee’s actions were within the scope of employment. Id. at *3.
The Restatement provides:
      (1) Conduct of a servant is within the scope of employment if, but only if:
      (a) it is of the kind he is employed to perform;
      (b) it occurs substantially within the authorized time and space limits;
      (c) it is actuated, at least in part, by a purpose to serve the master; and
      (d) if force is intentionally used by the servant against another, the use of force
      is not unexpectable by the master.
      (2) Conduct of a servant is not within the scope of employment if it is different
      in kind from that authorized, far beyond the authorized time and space limits,
      or too little actuated by a purpose to serve the master.


Id. (quoting Restatement (Second) of Agency § 228, p.504 (1957)). The Court further relied
upon the Restatement (Second) of Agency § 229, which states:
      (2) In determining whether or not the conduct although not authorized, is
      nevertheless so similar to or incidental to the conduct authorized as to be
      within the scope of employment, the following matters of fact are to be
      considered:
      (a) whether or not the act is one commonly done by such servants;
      (b) the time, place and purpose of the act;
      (c) the previous relations between the master and the servant;
      (d) the extent to which the business of the master is apportioned between
      different servants;
      (e) whether or not the act is outside the enterprise of the master or, if within
      the enterprise, has not been entrusted to any servant;
      (f) whether or not the master has reason to expect such an act will be done;
      (g) the similarity in quality of the act done to the act authorized;


                                             -12-
        (h) whether or not the instrumentality by which the harm is done has been
        furnished by the master to the servant;
        (i) the extent of departure from the normal method of accomplishing an
        authorized result; and
        (j) whether or not the act is seriously criminal.


Id. at *4 (quoting Restatement (Second) of Agency § 229, p.506 (1957)). Applying the
above factors, this Court found that the employee’s actions were not “incidental to authorized
conduct” because the actions were not common to actions taken by other employees, the
actions were personal in nature and showed no similarity to authorized actions, the object
thrown was not furnished by her employer for that purpose, her employer had no reason to
suspect she would behave in such a manner, and the employee was convicted of assault for
her actions. Id.


      In support of his claim that Mr. Archey was acting within the scope of his
employment, Mr. Hughes cites Tennessee Code Annotated section 55-10-331, which
provides that when an injury is caused by the operation of a motor vehicle owned by the
employer, proof of ownership by, and registration to the owner, constitute prima facie 7
evidence that the vehicle was being operated for the employer’s benefit within the scope of
the employee’s employment. Russell v. City of Memphis, 106 S.W.3d 655, 657 (Tenn. Ct.
App. 2002).


        Mr. Hughes also cites two cases which he claims demonstrate that the courts of this
state have expanded the scope of employment since the Terrett case to include horseplay.
First, he cites Ransom v. H.G. Hill Co., 326 S.W.2d 659, 379 (Tenn. 1959), a worker’s
compensation case,8 in which an employee, who was “standing around waiting to be assigned
some work” “grabbed [another employee] by the seat of the britches” causing the other
employee to fall, was acting within the scope of his employment. The Court cited Section


        7
          The prima facie case can be overcome by uncontradicted evidence from a credible witness.
Russell, 106 S.W.3d at 657.
        8
          We note that the Tennessee Workers’ Compensation Act is to be “ liberally construed in favor of
compensation and any doubts should be resolved in the employee’s favor[,]” Wait v. Travelers Indem. Co.
of Illinois, 240 S.W.3d 220, 224 (Tenn. 2007) (citing Knox v. Batson, 399 S.W.2d 765, 772 (Tenn. 1966)),
while the GTLA’s waiver of immunity is “narrowly defined in its scope.” Doyle v. Frost, 49 S.W.3d 853,
858 (Tenn. 2001).


                                                  -13-
23.61, Volume 1, Larson on Compensation, as follows:
       ‘The essence of the controversy in horseplay cases is the ambiguous nature of
       claimant’s own conduct, which may or may not be called a departure from his
       employer’s business. The ‘arising out of employment’ issue, once you have
       concluded that the horseplay activity itself was no departure from the
       employment, can usually be disposed of. In the great majority of the cases,
       there is some distinct contribution to the injury by the environment, in the form
       of air hoses or other instrumentalities; and even when this is not true, the
       ‘arising’ test can be simply met by the argument that if the activity itself
       qualifies as part of that activity, then the harm arises out of the employment of
       which that activity was a part.’


       ‘If an employee momentarily walks over to a co-employee to engage in a
       friendly word or two, this would nowadays be called an insubstantial
       deviation. If he accompanies this friendly word with a playful jab in the ribs,
       surely it cannot be said that an entirely new set of principles has come into
       play. The incident remains a simple human diversion subject to the same tests
       of extent of departure from employment as if the playful gesture had been
       omitted.


Id. at 662-63 (quoting Section 23.61, Larson on Compensation) (internal citations omitted).
The Court noted that “practicable jokesters” are not always acting within the scope of their
employment, “but so long as the things done are the natural and normal thing of the type the
employees who are kept there . . . it seems to us that they clearly have not left their
employment.” Id. at 663. Mr. Hughes further cites the unpublished Tennessee Supreme
Court case of Rhea v. Shoney’s South, 1986 WL 13706, at *1 (Tenn. 1986) wherein the Court
found that the plaintiff’s dancing, when he slipped and was injured, was not “willful
misconduct” such that the plaintiff was precluded from recovering worker’s compensation
benefits.


        As we noted above, the trial court found that when the incident occurred, Mr. Archey
was acting within the scope of his employment for Metro. “Generally, whether an employee
is acting within the scope of his or her employment is a question of fact.” Tenn. Farmers
Mut. Ins. Co. v. Am. Mut. Liab. Ins. Co., 840 S.W.2d 933, 937 (Tenn. Ct. App. 1992) (citing
Craig v. Gentry, 792 S.W.2d 77, 80 (Tenn. Ct. App. 1990)). “However, it becomes a
question of law when the facts are undisputed and cannot support conflicting conclusions.”
Id. (citations omitted). In the instant case, the parties do not agree as to whether Mr. Archey
was “horseplaying” during the incident or whether his front end loader merely “bottomed

                                             -14-
out” due to the dip in the access roadway. Furthermore, even if the parties were to agree that
Mr. Archey was involved in horseplay, they disagree as to whether horseplay is included
within the scope of employment. Accordingly, the trial court’s finding that Mr. Archey was
acting within the scope of his employment is a finding of fact entitled to a presumption of
correctness. See id.


        At the outset, we acknowledge that the circumstances of the instant case present a
closer question than the facts of those cases relied upon the parties. After a close
consideration of the circumstances and the above-cited authorities, we find that the evidence
presented does not preponderate against the trial court’s finding that Mr. Archey was acting
within the scope of his employment when Mr. Hughes was injured. At trial, Mr. Archey
acknowledged that “safety is something th[at] th[ey] preach out at public works[,]” that he
had been given instructions regarding the safe operation of heavy machinery near
pedestrians, and that he knew better than to “mess around with heavy equipment around
pedestrians[.]” However, that Mr. Archey had departed from Metro’s rules does not
automatically remove his conduct from the scope of his employment, see Taylor, 236 F.2d
at 654, nor does a finding of horseplay. Mr. Archey was returning the front end loader as
part of his employment with Metro, his primary motivation in operating the front end loader
was serving Metro, he was traveling the route prescribed by Metro, and the front end loader
had been furnished by Metro. Although Mr. Archey’s conduct in causing the loud noise
which frightened Mr. Hughes was “a personal project of his own[,]” we nonetheless find that
Mr. Archey’s conduct occurred in the “general course of carrying out his employer’s
business” so as to be within the scope of his employment. See id.


                           C.   Negligent v. Intentional Conduct
       Having found that Mr. Archey was acting within the scope of his employment, we
now consider whether Mr. Archey’s actions in operating the front end loader constitute
negligent or intentional conduct. The trial court found that “Mr. Archey’s actions constitute
negligence, not an intentional tort.” However, on appeal, Metro argues that because Mr.
Archey intended to scare Mr. Hughes, his actions make out the intentional tort of assault for
which Metro is not liable.


        We first address Metro’s contention that the trial court erred in holding that Tennessee
Code Annotated section 29-20-202 does not require negligent conduct. From the bench, the
trial court stated:
       [Tennessee Code Annotated 29-20-]202 is plain. It says operation of a motor
       vehicle or equipment. And if Senator Haynes’ colleagues up on the hill had


                                              -15-
       wanted to change that and say except if somebody is operating it intentionally
       or recklessly or grossly negligent or wanted to add[] any type of exception to
       it, I presume that they would have done so. They intended to cover every
       operation of motor vehicles and equipment by government employees as being
       -- having immunity removed.


This statement evidences the trial court’s misinterpretation of the statutory language. As we
noted above, Tennessee Code Annotated section 29-20-202 removes governmental immunity
“for injuries resulting from the negligent operation by any employee of a motor vehicle or
other equipment while in the scope of employment.” (emphasis added). Thus, if we find Mr.
Archey’s conduct was intentional, Metro’s immunity is not removed pursuant to section 29-
20-202.


        Tennessee Code Annotated section 29-20-205’s “intentional tort exception”
specifically preserves governmental immunity for certain specifically enumerated intentional
torts. Pendleton, 2005 WL 2138240, at *2. Because assault and battery claims are not
specifically enumerated within the intentional tort exception, governmental entities may be
liable when governmental employees commit an assault or battery. Id. at *3. However, this
Court has held that the “GTLA does not allow plaintiffs to hold governmental entities
vicariously liable for intentional torts not exempted under section 29-20-205(2), but rather
requires a direct showing [of] negligence on the part of the governmental entity.” Id.
(emphasis added). Thus, to remove a government’s immunity for an unenumerated
intentional tort by its employee, a threshold showing of negligence on the part of the
governmental entity must be shown. In the instant case, the trial court found that “[Mr.
Hughes] failed to prove negligent supervision,” and this finding is not challenged on appeal.
Accordingly, if we find Mr. Archey’s conduct was intentional, Metro’s immunity is not
removed pursuant to section 29-20-205.


      As we stated above, the trial court found that Mr. Archey’s conduct was negligent.
From the bench, the trial court stated:


       I find that [Mr. Archey’s] actions were -- I guess the term would be, in my
       opinion, sort of aggravated negligence in a way. And I don’t think it’s that
       important. I think the proof shows that Mr. Archey was clearly negligent in
       the lack of use of ordinary care in the driving of the front end loader as he
       approached this area, the parking lot. As pointed out . . . it was closing time,
       Friday afternoon. He had worked there. He knew everybody was getting off


                                             -16-
work. People were going to be going to their cars at that time. This wasn’t a
situation where it was one o’clock in the afternoon or ten o’clock in the
morning where he might not have thought anybody was out there and he had
to run back in real quick to fill up and go back out. He’s coming in to shut
down for the end of the day as well. He knew other people were out there, and
actually saw three individuals, one at the far end and then two people much
closer to him. He owed a duty of ordinary care to drive that front end loader
as he approached those individuals. He did not exercise ordinary care.


       He was aware of the dip. And I find there was a dip there. I think the
proof shows there is some imperfection in the roadway at that gate area, but
also he was aware of it. He knew it was there. He passed over it. Even
though he had only been driving that particular route for about two weeks,
maybe, he said he knew it was there. Nonetheless, he approached it without
slowing down. And I find that the testimony that the engine was revving up
is more persuasive than the engine brake sound[.]


. . . . But where Mr. Hughes and Mr. Goad were walking, there is no reason he
couldn’t have pulled over further to the left. And he didn’t do that.


       Instead, it seems clear, and I conclude, that Mr. Archey didn’t slow
down. It was foreseeable to him that this front end loader was going to bounce
as soon as he came over that dip area, that pot hole area at the rate of speed he
was travel[]ing. And he knew and it was foreseeable that that bucket was
going to hit the ground and make a very loud noise.


. . . . And it’s clear to me that Mr. Archey intended to carelessly drive this
vehicle over that little bump, making the noise and commotion that was going
to be associated with it.


       The fact that he intended to drive the vehicle in a negligent or careless
manner does not morph this into the classic intentional tort of assault. And it
conceivably could be argued that it’s reckless, but I don’t think that
recklessness is included by this statute.


....

                                      -17-
               He intended to do this. And I think I know what’s going on. It’s a
       Friday afternoon, and from Mr. Archey’s testimony, I get a taste of his
       personality, and they use the term horseplay and cutting up as he was coming
       through there and rev up his front end loader and bounce it through this little
       spot and make a lot of noise. . . . And it is foreseeable that by causing that type
       of noise and commotion, that somebody might be startled, frightened, shocked,
       whatever, trip, and be hurt. For that reason, the negligent person is responsible
       for it.


       “It is well settled in Tennessee that assault and battery constitute intentional torts, not
acts of negligence.” Pendleton, 2005 WL 2138240, at *1 n.1 (citing Limbaugh v. Coffee
County Med. Ctr., 59 S.W.3d 73, 84 (Tenn. 2001)). What is not so clear is whether the
requisite intent for assault is the intent to frighten or the intent to harm. On appeal, Metro
claims that because Mr. Archey intended to frighten Mr. Hughes, that his actions constitute
assault rather than negligence. However, Mr. Hughes claims that intent to frighten is
insufficient to recover under an assault theory, and that an intent to harm must be shown.


       Both parties have cited Tennessee authorities to support their respective positions.
After consideration of each, we agree with Mr. Hughes that under Tennessee law, the
intentional tort of assault requires a showing of intent to harm rather than mere intent to
frighten. In Huffman v. State, 292 S.W.2d 738, 742 (Tenn. 1956), overruled on other
grounds by State v. Irvin, 603 S.W.2d 121 (Tenn. 1980), our Supreme Court stated:
       An assault is rather clearly defined in 6 C.J.S., Assault and Battery, § 60, at
       page 915 as:
       An assault may consist of any act tending to do corporal injury to another,
       accompanied with such circumstances as denote at the time an intention,
       coupled with the present ability, of using actual violence against the person.


This definition was cited in Johnson v. Cantrell, No. 01A01-9712-CV-00690, 1999 WL
5083, at *3 (Tenn. Ct. App. W.S. Jan. 7, 1999), wherein this Court stated that “[u]nder this
definition, a defendant is not subject to liability for assault unless he or she commits an
intentional act creating a reasonable apprehension of imminent physical harm on the part of
the plaintiff.” Although this Court’s statement, at first glance, appears to lend support to
Metro’s contention that an intent to frighten is sufficient, we interpret the statement to clarify
the preceding definition: The tortfeasor must intend harm, however, the plaintiff may recover
if he is injured or if he reasonably apprehends physical harm. A similar interpretation was
made by the United States District Court for the Middle District of Tennessee:


                                               -18-
       At common law, assault was defined as “any act tending to do corporal injury
       to another, accompanied with such circumstances as denote at the time an
       intention, coupled with the present ability, of using actual violence against the
       person.” [Vafaie v. Owens, 1996 WL 502133 at *3 (Tenn. Ct. App. 1996)
       (citing Huffman[, 292 S.W.2d at 742].
       ....
       In Tennessee, it is elementary that there cannot be an assault and battery
       without a willful injury of the person upon whom the wrong is inflicted.
       Moffitt v. United States, 430 F.Supp. 34, 37 (E.D. Tenn. 1976). The word
       “willful” means nothing more than intentional. Id. In other words, an
       indispensable element of the evidence necessary to support an assault or
       battery cause of action is that the striking is willful and intentional. Id.
Thompson v. Williamson County, Tennessee, 965 F.Supp. 1026, 1037-38 (M.D. Tenn. 1997).


        In support of its contention that intent to harm is not an element of assault, Metro cites
W. Page Keeton et al., Prosser and Keeton on the Law of Torts, § 8, at 33, 36-37 (5 th ed.
1984), which states that “[t]he intent with which tort liability is concerned is not necessarily
a hostile intent, or a desire to do any harm. Rather it is an intent to bring about a result which
will invade the interest of another in a way that the law forbids.” Further, Metro cites the
Restatement (Second) of Torts § 21 which states that an actor is subject to liability for an
“assault” if “(a) he acts intending to cause a harmful or offensive contact with the person of
the other or a third person, or an imminent apprehension of such contact, and (b) the other
is thereby put in such imminent apprehension.” Next, Metro cites Harrell v. State, 493
S.W.2d 664, 670 (Tenn. Crim. App. 1979), in which the Court found that “at common law,
an essential element of assault is an intent either to frighten or harm.” Finally, Metro points
out that the Tennessee Pattern Jury Instructions define the intentional tort of assault as
follows:
       An assault consists of two elements:
       1. An intentional attempt or the unmistakable appearance of an intentional
       attempt to do harm to another person; and
       2. The present ability or the unmistakable appearance of the present ability to
       do that harm.
T.P.I.–Civil 8.01 (2009).9




       9
           The jury instruction cites Huffman, 292 S.W.2d 738 as its authority.

                                                    -19-
        We find the authority cited by Mr. Hughes more clearly reflects the elements of a civil
claim of assault in this state. “[N]othing in Tennessee law . . . indicates that Tennessee has
replaced its common law definition of assault with the elements set forth in the Restatement.”
Chidester v. Thomas, No. 02-2556 MA/A, 2006 WL 1459578, at *5 (W.D. Tenn. 2006)
(citing the Huffman definition of assault, and finding that although the defendant argued that
he did not intend to harm the plaintiff, a genuine issue of material fact existed as to whether
the defendant acted with the “necessary intent.”).


       Neither Mr. Hughes’ amended complaint, nor Metro’s cross-claim, alleged that Mr.
Archey intended to harm Mr. Hughes. In fact, the trial court stated that “everybody agrees
that Mr. Archey was not out there that day trying to run down Mr. Hughes and intentionally
hurt him[,]” and no evidence has been presented to suggest an intent to harm. Accordingly,
because we find that a civil action for assault requires an intent to harm, and no such intent
has been shown, we find that Mr. Archey’s conduct did not constitute the intentional tort of
assault, and we affirm the trial court’s finding of negligence.


                                      V.   C ONCLUSION


        Because we find that Mr. Archey was acting within the scope of his employment when
he negligently, rather than intentionally, injured Mr. Hughes, we affirm the trial court’s entry
of judgment for Mr. Hughes against Metro, its dismissal of Mr. Hughes’ claim against Mr.
Archey, and its dismissal of Metro’s cross-claim against Mr. Archey. We need not consider
the issues raised by Mr. Archey regarding accord and satisfaction and the comparative fault
of Mr. Hughes, as these issues are deemed pretermitted. Costs of this appeal are taxed to
Appellant, the Metropolitan Government of Nashville and Davidson County, and its surety,
for which execution may issue if necessary.


                                                     _________________________________
                                                     ALAN E. HIGHERS, P.J., W.S.




                                              -20-
