               IN THE COURT OF APPEALS OF TENNESSEE
                            AT MEMPHIS
                              February 25, 2015 Session

     LYDRANNA LEWIS, ET AL. V. SHELBY COUNTY, TENNESSEE

                  Appeal from the Circuit Court for Shelby County
                    No. CT00368611      Robert S. Weiss, Judge


                No. W2014-00408-COA-R3-CV – Filed April 17, 2015



Plaintiffs worked as counselors in a correctional facility that houses male inmates in a
dorm-like setting in Shelby County. In September 2010, they were attacked and beaten
by an inmate. Plaintiffs filed an action for negligence against Shelby County under the
Governmental Tort Liability Act, alleging the County was liable for damages caused by
the negligent acts and/or omissions of County employees. Plaintiffs alleged that the
supervising counselor/shift supervisor negligently failed to respond to their “code red”
calls for help; that he negligently failed to provide adequate staffing and equipment; and
that he negligently failed to implement the facility directives. The trial court determined
that the County was entitled to summary judgment under the discretionary function
exception contained in Tennessee Code Annotated § 29-20-205. We reverse and remand
the case to the trial court for further proceedings consistent with this opinion.

         Tenn. R. App. P. 3 Appeal: Judgment of the Circuit Court Reversed and
                                    Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD
P.J., W.S., and BRANDON O. GIBSON, J., joined.

Eugene A. Laurenzi, Memphis, Tennessee, for the appellants, Lydranna Lewis and Cathy
Miller.

Pablo A. Varela and David E. McKinney, Assistant County Attorneys, Memphis,
Tennessee, for the appellee, Shelby County, Tennessee.
                                   MEMORANDUM OPINION1

        Plaintiffs, Lydranna Lewis (“Ms. Lewis”) and Cathy Miller (“Ms. Miller”;
collectively, “Plaintiffs”), were employed by the Shelby County Department of
Corrections (“the DOC”) as Counselors at the Adult Offender Center (“the Center”) on
Mullins Station Road in Memphis. On September 1, 2010, they were assaulted by an
inmate at the Center, and in August 2011, they filed an action for damages against Shelby
County (“the County”) and Shelby County Mayor Mark Luttrell pursuant to the
Governmental Tort Liability Act contained in Tennessee Code Annotated § 29-20-201, et
seq. (“the GTLA”).

       In their complaint, as amended in December 2014,2 Plaintiffs alleged that they
sustained injuries as a result of an assault by an inmate while they were working on the
dormitory level in Building 3 of the Center. They alleged that the Supervising Counselor,
Willie Hardiman (“Mr. Hardiman”), determined that an insufficient number of counselors
were present at the Center on the night of the assault; that Mr. Hardiman assigned himself
to the position of “floater” in Building 3; and that Mr. Hardiman was not present in the
building when Plaintiffs were assaulted. Plaintiffs further alleged that, in accordance
with the Center‟s protocol, they radioed Mr. Hardiman for assistance twice prior to the
assault, but that Mr. Hardiman failed to appear. They additionally alleged that they made
four “code red” calls for assistance during the assault, but that no one appeared to assist
them. Plaintiffs asserted that the active assault continued for more than five minutes until
the Officer assigned to the ground floor, who was “not permitted to leave his post
unattended,” finally came to their assistance and subdued the inmate.

       Plaintiffs alleged in their complaint that Mr. Hardiman 1) negligently failed to
respond immediately to their calls for assistance; 2) negligently failed to assign adequate
staffing at each post in light of inadequate available personnel; and 3) negligently failed
to implement the DOC‟s directives with respect to responding to requests for assistance
and code reds, which were designed to prevent foreseeable injuries such as those
sustained by Plaintiffs. Plaintiffs asserted that Mr. Hardiman‟s negligent, non-
discretionary acts and/or omissions proximately caused their injuries, and that the County
was liable for the negligent acts of its employee. Plaintiffs sought damages in the amount
of $350,000 each.


1
 Rule 10 of the Rules of the Court of Appeals of Tennessee provides:
This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the
actions of the trial court by memorandum opinion when a formal opinion would have no precedential
value. When a case is decided by memorandum opinion it shall be designated “MEMORANDUM
OPINION,” shall not be published, and shall not be cited or relied on for any reason in any unrelated case.
2
    Plaintiffs named only Shelby County as Defendant in their amended complaint.


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        The County answered, denied liability, and filed a motion to dismiss or, in the
alternative, for summary judgment on December 30, 2013. In its motion, the County
asserted that Plaintiffs had failed to state a claim and that the County‟s immunity from
suit was not removed under the GTLA. The County further asserted that the assault was
an independent intervening act by a third-party that “cut[] off [the] proximate causal
chain to any alleged negligent act or omission[.]” Although the County‟s motion was
filed as a motion to dismiss or alternatively as one for summary judgment, it was
supported by a memorandum and amended memorandum, a separate statement of
undisputed material facts and the affidavits of two employees of the DOC attesting to
personal knowledge of the events, making it fully compliant with requirements for the
filing of a summary judgment motion as provided in Rule 56 of the Tennessee Rules of
Civil Procedure (“Rule 56”). Plaintiffs filed their response in opposition to the County‟s
motion. The response included, as attached exhibits, the counter- affidavit of a former
Supervisor who was employed at the Center, select portions of deposition testimony, and
other records and photographs. Additionally, Plaintiffs filed a separate response to
defendant‟s statement of material facts and filed Plaintiffs‟ statement of additional facts,
also as provided for in Rule 56. Following a hearing in January 2014, the trial court
found, as a matter of law, that the County was immune from suit under the discretionary
function exception to the GTLA. Plaintiffs filed a timely notice of appeal to this Court.

                                     Issue Presented

       The sole issue presented by this appeal, as we perceive it, is whether the trial court
erred by concluding, as a matter of law, that the acts and/or omissions alleged by
Plaintiffs constitute discretionary functions such that Plaintiffs are barred from seeking
damages under the GTLA.
                                    Standard of Review

       Although the County styled its motion alternatively as a motion to dismiss or for
summary judgment, it was clearly treated both by the parties and the trial court as one for
summary judgment.3 Our review of a trial court‟s award of summary judgment is de novo
with no presumption of correctness. We must “review[] the evidence in the light most
favorable to the nonmoving party and draw[] all reasonable inferences in that party‟s
favor.” Id. (citation omitted). It is well-settled that summary judgment may be granted
only if the moving party carries his burden to demonstrate that the “pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits . . . show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.” Id. (citations omitted). “The
moving party bears the burden of establishing that summary judgment is appropriate as a
matter of law, while the court must view the evidence in the light most favorable to the
nonmoving party and resolve any genuine issues of material fact in its favor.” Harris v.
Haynes, 445 S.W.3d 143, 146 (Tenn. 2014) (citation omitted). Because this action was


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filed after July 1, 2011, the summary judgment standard set forth in Tennessee Code
Annotated § 20–16–101 is applicable to this case. The statute provides:

        In motions for summary judgment in any civil action in Tennessee, the moving
        party who does not bear the burden of proof at trial shall prevail on its motion for
        summary judgment if it:

        (1) Submits affirmative evidence that negates an essential element of the
        nonmoving party‟s claim; or

        (2) Demonstrates to the court that the nonmoving party‟s evidence is
        insufficient to establish an essential element of the nonmoving party‟s
        claim.3

Tenn. Code Ann. § 20–16–101 (Supp. 2014). The trial court determined that, based on
those material facts that were not disputed, the County was entitled to a judgment as a
matter of law because Mr. Hardiman‟s alleged acts, or alleged failure to act, constituted a
discretionary function under Tennessee Code Annotated § 29-20-205(1). We accordingly
turn to whether the trial court erred by granting summary judgment on this basis.

                                                Discussion

       Governmental entities are immune from actions alleging injury resulting from the
exercise or discharge of a governmental function except as provided in the GTLA.
Tennessee Code Annotated § 29-20-201(a). The GTLA “permits a suit against a
governmental entity when an employee of that entity acting within the scope of his
employment negligently causes injury to another.” Giggers v. Memphis Housing
Authority, 363 S.W.3d 500, 507 (Tenn. 2012) (citing Tenn. Code Ann. § 29-20-205).

        Under Tennessee Code Annotated § 29-20-205(1), governmental immunity is not
removed if the plaintiff‟s alleged injury results from “[t]he exercise or performance or the
failure to exercise or perform a discretionary function, whether or not the discretion is
abused[.]” The underlying “rationale behind this „discretionary function exception‟ is to
prevent courts from questioning decisions of governmental entities that are primarily
legislative or administrative.” Giggers, 363 S.W.3d at 507. “A governmental entity is
immune from suit for actions involving „planning or policy-making.‟” Id. (quoting Helton
v. Knox Cnty., 922 S.W.2d 877, 885 (Tenn. 1996) (quoting Bowers v. City of


3
 In its January 2014 judgment, the trial court referenced the Center‟s staff roster and stated that the “roster
indicate[d] that all positions were assigned to an employee except that of a floater in the [Center‟s]
building 2, which is designated as „collapsed.‟” It also stated that it “reviewed the entire record[,]” which
we observe contains discovery responses and a number of affidavits.

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Chattanooga, 826 S.W.2d 427, 430 (Tenn. 1992)). The governmental entity is not
immune if “the act is merely „operational[.]”‟ Id. (quoting Helton, 922 S.W.2d at 885).

        A planning decision generally “involves consideration and debate regarding a
particular course of action by those charged with formulating plans or policies.” Id.
(citation omitted). It often “requires a governmental entity to create policies or plans,
formulate specifications or schedules, allocate resources, or determine priorities.” Id.
(citation omitted). Such “decisions are not subject to tort liability, and a review of these
decisions requires judicial restraint.” Id. (citation omitted).

       Operational functions or decisions, on the other hand, “implement „preexisting
laws, regulations, policies, or standards‟ that are designed to guide the actions of the
governmental entity.” Id. (quoting Bowers, 826 S.W.2d at 431). “An operational
decision requires that the decision-maker act reasonably when implementing preexisting
policy.” Id. at 507-508 (citation omitted). “[A]n operational decision does not involve
the formulation of new policy.” Id.

      When determining whether a decision is discretionary and, therefore, immune
from an action under the GTLA, the court must consider:

   (1) whether the course of conduct was determined after consideration or debate
       by an individual or group charged with the formulation of plans or policies;

   (2) whether the decision resulted from an assessment of priorities by an
       individual or group responsible for formulating plans or policies; and

   (3) whether the decision is not of the type properly reviewable by courts which
       are typically ill-equipped to investigate and balance numerous factors that
       go into executive or legislative decisions.

Chase v. City of Memphis, 971 S.W.2d 380, 384 (Tenn. 1998). If the court answers these
questions in the affirmative, the affirmative answer generally “militate[s] toward a
finding that [the] decision was a discretionary function.” Id. Additionally, “„when the
question is not negligence but social wisdom, not due care but political practicability, not
[reasonableness] but economic expediency[,]‟” it is not the type of decision that is
“properly reviewable by the courts.” Id. (quoting Peavler v. Bd. of Comm’rs, 528 N.E.2d
40, 46 (Ind. 1988) (quoting Blessing v. United States, 447 F.Supp. 1160, 1170 (E.D.
Penn. 1978))). In such cases, “[t]ort law simply furnishes an inadequate crucible for
testing the merits of social, political, or economic decisions.” Id. (quoting id.)

       Operational decisions, on the other hand, “may be generally classified as ad hoc
decisions made by an individual or group not charged with the development of planning
or policy decisions that stem from a determination based on preexisting laws, regulations,

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policies, or standards.” Id. “„[T]he discretionary function exception [will] not apply to a
claim that government employees failed to comply with regulations or policies designed
to guide their actions in a particular situation.‟” Bowers v. City of Chattanooga, 826
S.W.2d 427, 431 (Tenn. 1992) (quoting Aslakson v. United States, 790 F.2d 688, 692 (8th
Cir. 1986)).

       The trial court in this case concluded that the County was immune from suit under
the discretionary function exception to the GTLA upon determining that the County‟s
staffing assignments for the Center constitute a discretionary function. In its January
2014 order, the trial court stated:

       1. Plaintiffs‟ amended complaint alleges that supervisory staff at the Shelby
       County Adult Offender Center (AOC) was negligent in failing to assign
       adequate staffing at each designated post as necessary to ensure plaintiff‟s
       safety and by failing to exercise that degree of care and caution as required
       of a reasonably prudent person under the same or similar circumstances by
       responding immediately to Plaintiffs‟ call for assistance from a supervisor;
       as required by AOC policies and procedures.

       2. Plaintiffs‟ response to Defendant‟s Motion to Dismiss and/or for
       Summary Judgment, attached the staff roster of September 1, 2010.

       3. The staff roster indicates that all positions were assigned to an employee
       except that of a floater post in the AOC building 2, which is designated as
       “collapsed.”

       4. Tenn. Code Ann. § 29-20-205(1) states in pertinent part, “Immunity from
       suit of all governmental entities is removed for injury proximately caused
       by a negligent act or omission of any employee within the scope of his
       employment except if the injury arises out of: (1) The exercise or
       performance or the failure to exercise or perform a discretionary function,
       whether or not the discretion is abused.”

       5. Decisions involving scheduling of employees to available posts, and the
       creation of shift rosters at the AOC, which is part of the Shelby County
       Division of Corrections, is a discretionary function as contemplated by
       Tenn. Code Ann. § 29-20-205(1).

       6. Shelby County Government is entitled to immunity from suit pursuant to
       Tenn. Code Ann. § 29-20-205(1).

       We begin our review of the trial court‟s judgment by observing that it based its
decision entirely on the fact that the staff roster of September 10, 2010, that was attached

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as an exhibit to Plaintiff‟s response to Defendant‟s Motion to Dismiss and/or for
Summary Judgment, “indicates that all positions were assigned to an employee except
that of a floater post in the AOC building 2, which is designated as „collapsed.4‟” The
trial court then found that decisions related to the staffing roster “involving scheduling of
employees to available posts” are a discretionary function “as contemplated by Tenn.
Code Ann. §29-20-205(1).” However, the trial court made no findings with respect to
whether the decision to “collapse” a position reflects a policy decision made at the
administrative/legislative level or an operational decision made by the shift supervisor or
some other non-administrative/non-legislative level employee. This unresolved question
of fact makes summary judgment inappropriate.

        Additionally, the Plaintiffs, in their complaint, did not limit their allegations to
questions of staffing. Rather, they asserted that Mr. Hardiman negligently “failed to
exercise that degree of care as required … by responding immediately to Plaintiffs‟ call
for assistance from a supervisor; as required by AOC policies and procedures” and
“failed to implement Defendant‟s own directives pertaining to requesting assistance in
situations like Plaintiff[s] found themselves in, to wit, calling a „code red[.]‟” The trial
court‟s order does not address whether these two claims were in the nature of planning or
operational decisions. Instead, the trial court only determined that “decisions involving
scheduling of employees to available posts, and the creation of shift rosters at the AOC”
were discretionary functions. Because the trial court did not specifically address
Plaintiffs‟ claims, summary judgment was inappropriate.

         In its brief, the County asserts that summary judgment is alternatively appropriate
under the reasoning of the Tennessee Supreme Court in King v. Anderson County. The
County submits, “the attack by [the] inmate . . .was sufficient, by itself, to cause injury to
Appellants, the attack was not reasonably foreseeable by Appellee, and there is no nexus
between the attack, by a non-violent inmate, and the alleged negligent failure to properly
4
  staff, implement policies, or a delayed response time.” The County relies on King for
the proposition that the attack on Plaintiffs was not reasonably foreseeable. 4

       King v. Anderson County involved an assault of inmate Kenneth King (“Mr.
King”) by inmate Brandon Paul (“Mr. Paul”). King v. Anderson County, 419 S.W.3d 232
(Tenn. 2013). The appeal in that case, unlike the current appeal, arose from a trial on the
merits in which the record contained “no evidence that Anderson County Detention
Facility officials knew or should have known that Mr. King would become the victim of


4
 Contained in the record is the affidavit of Harvey Tharp (“Mr. Tharp”). Mr. Tharp was employed as a
supervisor with the AOC from February 1991 until June 2010. In his affidavit, Mr. Tharp defines the
term “collapse” as follows: “The Adult Offender Center was understaffed by two Counselors on
September 1, 2010. The Shift Schedule for September 1, 2010 indicates that one post was vacant due to a
“post collapse”. A “post collapse” indicates a failure to assign a Counselor to the post…”

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an attack by his cellmates after he was returned to his cell to await pretrial release.” Id. at
250. The King court noted:

       Mr. King had spent eight hours in the same cell, with the same detainees,
       during the previous night without incident, even though he had at that time
       informed his cellmates that drugs had been taken from him by police when
       he was arrested. He did not report any attempt to search him at that time,
       nor did Mr. King ever complain to prison authorities that he felt threatened
       by any of his cellmates. Mr. King‟s alleged assailant, Mr. Paul, had no
       record of institutional violence, despite the fact that he had been in custody
       since July of that year. Although it is understandable that Mr. King would
       be upset about his delayed release, it was not foreseeable or probable that
       he would choose to curse or “[go] off” at a cellmate after returning to his
       cell, especially given his own admission that he had felt “scared” of his
       fellow inmates upon entering the cell for the first time. As the trial court
       itself observed, Mr. King was the victim of a “spur of the moment assault”
       of which no one had any notice. No prison official could have predicted
       the assault, especially given the lack of any incident or threat during Mr.
       King‟s previous night in the same company. Because the record contains
       no proof that the prison officials knew of or had reason to anticipate an
       attack on Mr. King, we conclude that the evidence preponderates against
       the trial court‟s finding of foreseeability and, therefore, that proximate
       cause cannot be established in this case.

Id. The court held:

       Thus, we must conclude that although the assault upon Mr. King was a
       possibility, given that penal institutions house dangerous people convicted
       or charged with crimes, sometimes extremely serious or violent crimes, the
       evidence in the record preponderates against the finding that the assault
       was a reasonably foreseeable probability, which is the standard for
       assessing proximate cause necessary to impose liability in a negligence
       case.

Id. (emphasis added). We cannot agree with the County‟s conclusion that King stands for
the proposition that the attack of DOC personnel by an inmate, standing alone, is
sufficient to break the chain of causation in this case. First, King concerned an attack of
one inmate by another inmate that occurred after the inmates had shared a cell for more
than eight hours. Second, the King court reached its conclusion after the facts had been
determined by the finder of fact following a trial on the merits. The current appeal arises
from an award of summary judgment in which the facts regarding Plaintiffs‟ allegations
of negligence are disputed. Therefore, summary judgment in this case is inappropriate.


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                                       Holding

       In light of the foregoing, we reverse the trial court‟s judgment granting the
County‟s motion to dismiss or, in the alternative, motion for summary judgment. Costs
on appeal are taxed to the Appellee, Shelby County. This matter is remanded to the trial
court for further proceedings that are necessary and consistent with this Opinion.


                                               _________________________________
                                               ARNOLD B. GOLDIN, JUDGE




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