                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                   February 18, 2005 Session

      KIM WELLS, ET AL. v. HAMBLEN COUNTY TENNESSEE, ET AL.

                      Appeal from the Circuit Court for Hamblen County
                           No. 02CV238      John K. Wilson, Judge



                  No. E2004-01968-COA-R3-CV - FILED AUGUST 22, 2005


The trial court dismissed an action against the county arising from a deputy sheriff’s allegedly
negligent failure to arrest a man who had just assaulted his former girlfriend, the mother of his child.
The man later murdered his young son. The mother of the child appealed. Because the public duty
doctrine provided a shield from liability, and the complaint did not allege facts sufficient to establish
the special duty exception, we affirm the trial court.

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

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which CHARLES D. SUSANO , JR. and
D. MICHAEL SWINEY , JJ., joined.

Larry V. Roberts, Kingsport, Tennessee, for the appellants, Kim Wells, Individually, Kim Wells,
Next of Kin of Matthew Wells, Deceased.

Gary M. Prince, P. Alexander Vogel, Knoxville, Tennessee, for the appellee, Hamblen County
Tennessee d/b/a Hamblen County Sheriff’s Department.

                                              OPINION

       This matter concerns a domestic abuse incident resulting in the death of a child and the
responsibility of Hamblen County (“County”) for its law enforcement officer’s handling of the
matter. The child’s mother sued the County on behalf of herself and her deceased child seeking
damages. The trial court granted the County’s motion to dismiss for failure to state a claim upon
which relief can be granted. For purposes of this appeal, we must treat the allegations of the
complaint, as set out below, as true.

        The child, Matthew Wells, was almost three years old at the time of the incident and was
living with his mother, Kim Wells. The child had been visiting his father, Paul Carr, at the residence
of Carr’s father on September 29, 2002, when Ms. Wells came to retrieve some of her personal items
and to pick up her son. Ms. Wells was accompanied by a friend. In the past, Ms. Wells had been
assaulted by Paul Carr, and he had made threats to kill her or her family.

        While Ms. Wells was gathering her personal things, Matthew and her friend waited in the
car. Paul Carr then confronted Ms. Wells telling her that he wanted to get back together with her.
When Ms. Wells told him that she did not want to, he began choking her and slammed her head
against concrete. He said that if he could not have Ms. Wells, then no one else could. Ms. Wells
managed to escape from him and ran toward her car. Before she could lock the car door, Paul Carr
grabbed Matthew through the window causing the child to hit his head on the car window. Paul Carr
then took the child into his father’s house.

       Ms. Wells left and contacted the Hamblen County Sheriff’s Department. Deputy W. T. Snow
answered the call, meeting Ms. Wells at a convenience store. Deputy Snow took a report and
photographs of Ms. Wells that were attached to the complaint as exhibits. Ms. Wells told Deputy
Snow that she feared Paul Carr would harm his son and asked the officer to go to Mr. Carr’s father’s
residence to get the child and arrest Paul Carr. She said that she had never seen him so angry.

        Deputy Snow told Ms. Wells not to worry. Based on his experience and training in domestic
abuse cases, he told her that he did not believe Paul Carr would harm their son. Deputy Snow told
Ms. Wells that he would take care of Matthew. He said that he would serve an arrest warrant on
Paul Carr before Carr left for work the following morning and would then get Matthew. Deputy
Snow told Ms. Wells that he needed a warrant to arrest Carr. According to the complaint, the officer
said “If I need to shoot somebody when I go up there, I need to have a warrant or I’ll be liable.”

       Deputy Snow offered to transport Ms. Wells to get an arrest warrant issued, but she declined.
Ms. Wells signed a statement at the time expressly declining the offer. Ms. Wells was then taken
by her mother to the hospital for treatment for her injuries.

        Later that day, after Paul Carr had left his father’s home with his son, Carr murdered
Matthew. Without further elaboration, the complaint states that Deputy Snow had an arrest warrant
issued for Paul Carr that was never served. The implication is that it was a warrant for the assault
on Ms. Wells and that Deputy Snow obtained it in order to arrest Mr. Carr the next day, as he had
told Ms. Wells he would.

        Kim Wells, both individually and as Matthew’s next of kin, sued the County1 under the
Tennessee Governmental Tort Liability Act, Tenn. Code Ann. § 29-20-101 et seq. (hereinafter
“GTLA”) for wrongful death. According to her complaint, Ms. Wells alleges that the County is
liable because Deputy Snow:




       1
           The complaint does not name any defendant in his or her individual capacity.

                                                         -2-
         negligently or willfully failed to take all reasonable measures necessary to assist
         and/or assure the immediate safety of Matthew Wells in that, among other things, he
         failed to:

                     a) go to and properly evaluate the scene, including communicating
                     with Matthew, Paul Carr and Paul Carr’s father;

                     b) arrest Paul Carr and get Matthew Wells;

                     c) surveil Paul Carr in the event he left with Matthew Wells; and

                     d) request additional officers for assistance.

        The complaint alleged that the child died as a result of Deputy Snow’s negligence. Ms. Wells
sought to recover monetary damages from Hamblen County.2 The County filed a motion to dismiss
relying on the public duty doctrine arguing that Deputy Snow’s duty to arrest is to the public
generally and not to individual members of the public. Ms. Wells, however, argued that the public
duty doctrine was not applicable since Deputy Snow undertook a special duty to protect Matthew
Wells and Ms. Wells relied upon the deputy’s undertaking.

        The trial court granted the County’s motion to dismiss without elaboration.3 Ms. Wells then
filed this appeal.

                                              I. STANDARD OF REVIEW

        A Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss for failure to state a claim
tests the legal sufficiency of the complaint itself. Willis v. Dept. of Corrections, 113 S.W.3d 706,
710 (Tenn. 2003); Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn. 1999). The standard of appellate
review of a dismissal under Rule 12.02(6) requires that we take the factual allegations in the
complaint as true and review the trial court’s legal conclusions de novo without giving any
presumption of correctness to those conclusions. Willis, 113 S.W.3d at 710. The trial court should
grant a motion to dismiss only “when it appears that the plaintiff can prove no set of facts in support
of the claim that would entitle the plaintiff to relief.” Id.




         2
          Ms. W ell’s complaint also contains allegations that the sheriff’s office dispatcher was negligent in sending only
one officer to respond to Ms. W ell’s call. This claim was included within the trial court’s order of dismissal and does
not appear to be the subject of this appeal. In any event, the County is not liable for the actions of the dispatcher for the
same reason it is not liable for the actions of Deputy Snow.

         3
             Plaintiff’s motion to reconsider the dismissal was denied by the trial court.

                                                             -3-
                                         II. GOVERNMENTAL IMMUNITY

       As framed by the parties, the issues presented in this appeal relate to the common law
doctrine of public duty, which precludes liability for actions by governmental employees in
applicable situations, and the special duty exception to that doctrine.

        In a negligence action against a local governmental entity, the threshold question is generally
whether that entity’s governmental immunity has been waived under the GTLA. Brown v. Hamilton
County, 126 S.W.3d 43, 46 (Tenn. Ct. App. 2003). If the county is extended immunity by the
GTLA, then the public duty doctrine and its exceptions are not relevant. Chase v. City of Memphis,
971 S.W.2d 380, 385 (Tenn. 1998); Brown, 126 S.W.3d at 48. The public duty doctrine is a
common law affirmative defense to liability that comes into play only if the entity is not otherwise
protected by statutory immunity. Chase, 971 S.W.2d at 385; Matthews v. Pickett County, 996
S.W.2d 162, 164-65 (Tenn. 1999); Brown, 126 S.W.3d at 48. Similarly, while the special duty
exception to the public duty doctrine negates that doctrine as a defense to liability, it has no effect
on and cannot remove immunity afforded by the GTLA. Chase, 971 S.W.2d at 385.

        If immunity is found to exist under the GTLA, no further inquiry is required as to whether
the common-law-based public duty doctrine also precludes liability. Chase, 971 S.W.2d at 385. The
public duty doctrine provides “an additional layer of defense” that need be explored only if the
legislature has removed immunity through the GTLA. Consequently, where both the statutory and
common law defenses are raised, it is generally true that the first question to be addressed in a
negligence action against a local government is whether that government is immune from liability
under the GTLA. Matthews, 996 S.W.2d at 165; Brown, 126 S.W.3d at 48.

         In the case before us, the County did not assert GTLA immunity in the motion to dismiss that
is the subject of this appeal4 and, consequently, we must presume the trial court did not consider the
issue. Neither will we.5 Where, as in the case before us, only the common law public duty doctrine
is raised, it is appropriate to consider only the issues presented by that defense. Ezell v. Cockrell,
902 S.W.2d 394, 400 n. 11 (1995); see also Chase, 971 S.W.2d at 385 (explaining Ezell’s procedural
posture).




         4
           The motion itself is general in nature, but the supporting memorandum cites only the public duty doctrine as
the basis for dismissal. Similarly, the plaintiff’s response deals solely with the applicability of the special duty exception.

         5
           The county discusses GTLA immunity in its brief before this court and asserts that statute also requires
dismissal because the allegations complain of a discretionary function. The issue is created by Tenn. Code Ann. § 29-20-
205(1), pursuant to which a local government’s immunity is effectively waived unless, among other grounds, the injury
arises out of “the exercise or performance or the failure to exercise or perform a discretionary function, whether or not
the discretion is abused.”

                                                             -4-
                    III. PUBLIC DUTY DOCTRINE AND SPECIAL DUTY EXCEPTION

       The public duty doctrine is a creature of common law, and its purpose is to shield a public
employee from “suits for injuries that are caused by the public employee’s breach of a duty owed to
the public at large.”6 Ezell, 902 S.W.2d at 397. It is sometimes explained by stating that a duty
owed to everyone is a duty owed to no one. See Brown, 126 S.W.3d at 43.

       As in any other negligence action, a plaintiff must establish the existence of a duty or
standard of care in an action for negligence of a government employee. Ezell, 902 S.W.2d at 397,
400. In Tennessee, it has long been held that a plaintiff must show the existence of a duty particular
to him or her, as distinct from a duty owed to the public in general.

         It is settled law in this state that private citizens, as such, cannot maintain an action
         complaining of the wrongful acts of public officials unless such private citizens aver
         special interest or a special injury not common to the public generally.

Ezell, 902 S.W.2d at 397, quoting Bennett v. Stutts, 521 S.W.2d 575, 576 (Tenn. 1975).

        As the Tennessee Supreme Court discussed in Ezell, the wide recognition afforded the
doctrine is supported by a number of public policy considerations, particularly in the context of law
enforcement. Without the doctrine, police officials could find themselves in the “untenable position
of insuring the personal safety of every member of the public, or facing a civil suit for damages.”
902 S.W.2d at 398. The Court also found that, “Another policy consideration justifying recognition
of the public duty doctrine is that police officials often act and react in the milieu of criminal activity
where every decision is fraught with uncertainty.” Id.

        In deciding that the public duty doctrine survived the passage of the GTLA and that its
continued application was warranted by valid policy considerations, the Court concluded that the
public duty doctrine:

         . . . serves the important purpose of preventing excessive court intervention into the
         governmental process by protecting the exercise of law enforcement discretion. As
         we observed in State v. Jefferson, 529 S.W.2d 674, 689 (Tenn. 1975), “[i]t is
         essential to the protection of society that a wide discretion be vested in officers
         chosen to enforce our laws. . . .” (citations omitted) . . . We think on balance, the
         State is better served by a policy that both protects the exercise of law enforcement
         discretion and provides accountability for failure to perform a duty.7


         6
          W hile the doctrine is sometimes cast in terms of shielding employees, it has likewise been applied to shield
local governmental entities from liability. See Ezell, 902 S.W .2d. at 404.

         7
          The Court noted that Tennessee has mechanisms, including public forms of redress, other than civil negligence
actions where officers can be held accountable for failure to perform a duty. Ezell, 902 S.W .2d at 401.

                                                         -5-
Id. at 400-01.

       Just as the public duty doctrine remained viable after the adoption of the GTLA, so did a
recognized exception to the public duty doctrine, i.e. the special duty exception. Ezell, 902 S.W.2d
at 401. Where the special duty exception is found to apply, it operates to negate the public duty
doctrine defense. Matthews, 996 S.W.2d at 165. Without that defense, and without immunity under
the GTLA, a local government may be liable for its employee’s negligence.

       The special duty exception applies where “a ‘special relationship’ exists between the plaintiff
and the public employee, which gives rise to a ‘special duty’ that is more particular than the duty
owed by the employee to the public at large.” Ezell, 902 S.W.2d at 401. In Tennessee, the special
duty exception arises under any one of the following situations:

        1) officials, by their actions, affirmatively undertake to protect the plaintiff, and the
        plaintiff relies upon the undertaking;

        2) a statute specifically provides for a cause of action against an official or
        municipality for injuries resulting to a particular class of individuals, of which
        plaintiff is a member, from failure to enforce certain laws; or

        3) the plaintiff alleges a cause of action involving intent, malice, or reckless
        misconduct.

Id. at 402.

        In Ezell, the Supreme Court determined that the special duty exception should be retained
but refined and arrived at the standard set out above after reviewing the requirements imposed in a
number of other states as well as the exception’s history in Tennessee courts. Id. at 401-02. Since
Ezell, the Court has reaffirmed that the focus of the inquiry is the relationship between the parties.
Matthews, 996 S.W.2d at 165.

        In the case before us, there is no dispute that the determinative question is whether the special
duty exception applies. If it does not, the public duty doctrine prevents imposition of liability and
the case was properly dismissed.

        Ms. Wells relies on the first situation in the Ezell definition. It is important to note the
language chosen by our Supreme Court to describe that situation: “officials, by their actions,
affirmatively undertake to protect the plaintiff . . .” This language differs from some of the tests
applied in other states that were specifically considered, and impliedly rejected, by the Court in Ezell.
In particular, the Court recognized that some states8 find the special duty exception applicable where



        8
            Georgia, New York, and Ohio.

                                                  -6-
there is “an explicit assurance by the [governmental unit], through promises or actions, that it
would act on behalf of the injured party.” Ezell, 902 S.W.2d at 401.

       The distinction between actions and promises or assurances and the Tennessee Supreme
Court’s choice of language are important to our resolution of the case before us.

                                                    IV. ANALYSIS

         Ms. Wells argues that Deputy Snow affirmatively undertook to protect Matthew Wells and
that liability should be imposed for his failure to make an immediate warrantless arrest of Paul Carr
or to immediately obtain an arrest warrant and arrest Mr. Carr immediately thereafter. As discussed
earlier, the Tennessee courts have found it important to the public interest to protect law enforcement
discretion in the decision of whether, when, and how to make an arrest. See Ezell, 902 S.W.2d at
397-401 (discussing the policy reasons underlying the public duty doctrine and agreeing with courts
that have identified those valid policy considerations.)

        Ezell involved an action brought by a citizen who was injured in an accident caused by a
drunk driver against, among others, a city government, alleging that the driver had been allowed to
drive by the city’s police chief when he knew or should have known the driver was intoxicated. The
plaintiff alleged that the police chief breached a duty to the plaintiff when he failed to arrest the
driver for public intoxication or driving under the influence.9 902 S.W.2d at 396-97.

       The Court found the public duty doctrine applicable to these allegations and went on to
examine its formulation of the special duty exception as applied to the facts alleged. Id. at 401-402.
The Court found that the plaintiff had not alleged facts that would support the application of the
special duty exception because neither the city nor the police chief had “by their actions,
affirmatively undertaken to protect the plaintiff.” Id. at 403.10

        The Court also found unavailing the plaintiff’s argument that statutes criminalizing public
intoxication and driving under the influence of intoxicants, combined with statutes charging the
police chief with enforcing laws relating to drunkenness by having arrested all persons violating
those laws, created a special duty.11 The Court stated:

         9
           The police chief had prevented a woman who was obviously intoxicated from driving home from a bar, but
allowed her male friend to drive her home. Approximately one hour later, the driver, with his lights off and on the wrong
side of the road, crashed head-on into the car where the plaintiff and her husband, who was killed in the accident, were
riding.

         10
           The Court noted that the police chief had never had contact with the plaintiff and, therefore, the governmental
defendants had taken no action that would have cause the plaintiff to particularly rely on them for protection.

         11
            This argument was apparently made with regard to the second circumstance the Court had described as
establishing the special duty exception. In the case before us, Ms. W ells argues that state statue allowing warrantless
arrest in domestic abuse situations and written policies of the sheriff’s department created a special duty. However, that
                                                                                                             (continued...)

                                                           -7-
        [W]e join the clear majority of courts and conclude that statutes pertaining to drunk
        driving and public intoxication, do not, in conjunction with statutes authorizing
        warrantless arrests, give rise to a “special-duty” of care where a plaintiff alleges that
        the police officer failed to arrest or detain an alleged drunk driver.

Ezell, 902 S.W.2d at 403.

        In Hurd v. Woolfork, 959 S.W.2d 578, (Tenn. Ct. App. 1997), this court concluded that the
public duty doctrine was applicable to shield a sheriff and county from liability resulting from
negligent failure to promptly and properly process an arrest warrant. Id. at 581. The individual who
was the subject of the warrant had been charged with aggravated rape. Id. at 580. Neighbors had
informed the police of the suspect’s continuing course of conduct that threatened members of the
neighborhood. Id. Before the police executed the arrest warrant, the suspect brutally murdered two
of his neighbors. Id. The court found:

        A sheriff’s duty to keep the peace, however, includes the execution of arrest warrants
        and is a public duty, “not owed to any individual in particular.” Ezell, 902 S.W.2d
        at 397. Under the circumstances of this case, therefore, the public duty doctrine bars
        the Plaintiffs’ present actions against Sheriff Woolfork and Madison County.

Id. at 781.

        However, in Matthews v. Pickett County, supra, the Supreme Court found that the special
duty exception applied. In that case, the plaintiff had obtained a protective order prohibiting her
estranged husband from coming about her and “specifically from abusing threatening to abuse the
petitioner, or committing any acts of violence upon the petitioner.” The night before the hearing on
their pending divorce, the husband threatened to kill the plaintiff, attempted to break into her home,
and set off firecrackers under her propane tank. The plaintiff telephoned the sheriff’s department
for help three times and was assured someone was coming. Her calls ceased when her estranged
husband severed her telephone line.

        The deputies arrived, spoke to the husband, but did not arrest him, although a warrantless
arrest for violation of the protective order was authorized by statute. Neither deputy thought they
could arrest the husband without a warrant. They took the wife to the court house to swear out a
warrant for the husband’s arrest, where they found out they did not need a warrant. They took the
wife back to her house to discover her car had been riddled with bullets. They then escorted her out
of the county.




        11
           (...continued)
argument is not made to support the special duty exception under the second of the circumstances announced in Ezell.
To the contrary, Ms. W ells specifically states she relies on the first circumstance.

                                                        -8-
        A cousin of one of the deputies was left to watch the plaintiff’s house. He saw the husband
return to the house with a large container and leave without it. When the deputies returned to pick
up the cousin, they saw the husband leaving, but did not stop, question, or arrest him. They did not
examine the house closely. The plaintiff’s house burned to the ground after the deputies left.
Matthews, 996 S.W.2d at 163-64.

        The Court found that the protective order the wife had gotten created a special duty. 996
S.W.2d at 165. “The order of protection in this case was not issued for the public’s protection in
general. The order of protection specifically identified [the plaintiff] and was issued solely for the
purpose of protecting her.” Id. The Court further found that the plaintiff relied on the order of
protection, calling the sheriff’s office and asking for protection pursuant to the order. Id.

         Although the Court explained its conclusion largely on the basis of the relationship created
by the protective order and by the plaintiff’s reliance on that order, we note that the Court also stated
that it was Ezell’s first set of circumstances establishing the special duty exception that applied to
the facts presented, i.e., that the public official affirmatively undertakes to protect the plaintiff. Id.
at 165. We think the facts in Matthews showed that the deputies acted in affirmatively undertaking
to protect the plaintiff: coming to her house, taking her to the courthouse, escorting her to safety,
and leaving her house watched. They took actions, and the plaintiff relied on those actions. The
Sixth Circuit has given a similar interpretation to the Matthews holding:

         In Matthews, it was not the mere existence of the order of protection that created the
         special relationship. Rather, a special relationship was created in Matthews because
         the defendant’s police officers offered to protect the plaintiff in response to her
         request for assistance after she was threatened by her husband.

Jones v. Union County, 296 F.3d 417, 429 (6th Cir. 2002).12 In any event, in the case before us, there
was no existing order of protection and no order keeping Mr. Carr away from Matthew. In fact, Ms.
Wells had allowed Matthew to stay with Mr. Carr.

        Based on these authorities, we must conclude that Ms. Wells has not alleged facts that would
support the application of the special duty exception. The complaint does not include any allegation
of any action that Deputy Snow affirmatively undertook to protect Matthew. To the contrary, it is
his failure to act that Ms. Wells really complains of. Specifically, Ms. Wells alleges in her
complaint:

         Deputy W. T. Snow told Kim Wells to not worry about Matthew Wells, that he
         would take care of Matthew Wells and that based on his experience and training in
         domestic abuse cases, Paul Carr would not harm Matthew Wells, that Matthew Wells
         would be safe with Paul Carr and that he would serve Paul Carr with an arrest


         12
            Since the Sixth Circuit also stated that whatever duty may be found to exist under Tennessee tort law was
irrelevant to the question before it, the quoted language could appropriately be characterized as dicta.

                                                        -9-
        warrant the next morning before Paul Carr went to work, at which time he would get
        Matthew Wells. . . . Deputy W. T. Snow assured Kim Wells that Matthew Wells
        would be safe with Paul Carr until that time.

         These allegations, taken as true, do not establish the special duty exception described in Ezell
simply because they describe solely what the deputy told Ms. Wells. The relevant special duty
exception expressly requires that the officers undertake to protect the plaintiff “by their actions.”
It is not alleged that Deputy Snow took any action to affirmatively undertake to protect Matthew
Wells. As explained earlier, our Supreme Court specifically chose not to adopt a standard that
include promises, assurances, or any other verbal communication. We cannot ignore that Court’s
intentional inclusion of a requirement that the governmental employee or law enforcement officer
take some action.

        In this case, while he told Ms. Wells not to worry, Deputy Snow simply gave Ms. Wells his
view or opinion of the situation and explained how he planned to handle it in order to take care of
Matthew. He was mistaken, and the consequences were tragic. However, if we were to find that
Deputy Snow’s words created a special duty that overcame the public duty doctrine, little would
remain of that doctrine. Almost any reassuring communication by a police officer to a potential
victim or the victim’s family would remove the protection. The formulation adopted by our Supreme
Court does not rest on promises or verbal assurances, and words alone will not create an exception
to the public duty doctrine.

         Because no action by Deputy Snow affirmatively undertaking to protect Matthew was
alleged, the special duty exception is not present. Consequently, the public duty doctrine precludes
liability and the action was properly dismissed.

                We affirm the trial court. Costs are taxed to appellant, Kim Wells.



                                                         ____________________________________
                                                         PATRICIA J. COTTRELL, JUDGE




                                                  -10-
