                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                   February 5, 2008 Session

   DAVID LUKE HARVEY v. DICKSON COUNTY, TENNESSEE, ET AL.

                       Appeal from the Circuit Court for Dickson County
                          No. CV 2256      George C. Sexton, Judge


                      No. M2007-01793-COA-R3-CV - Filed May 21, 2008


An inmate at the Dickson County Jail who was attacked by another inmate filed this action against
co-defendants, Dickson County and the Sheriff of Dickson County to recover damages for his
personal injuries. The trial court summarily dismissed the complaint against both defendants without
stating the legal grounds for its conclusion. The plaintiff contends the defendants breached their duty
to prevent foreseeable harm because the defendants left a mop in the jail, which was not secured or
locked away, and the defendants knew or should have known that a mop could be used by an inmate
as a weapon. Penal institutions have a duty to use reasonable and ordinary care to prevent
foreseeable attacks on inmates by other inmates. For a penal institution to be liable for injuries
resulting from inmate-on-inmate assaults, the general rule is that the institution must have had prior
notice of an attack. The defendants supported their motion for summary judgment with affidavits
stating that they had no notice and no reason to believe that the plaintiff was likely to be assaulted.
This shifted the burden to the plaintiff to establish that a dispute of fact exists concerning whether
the defendants knew of or had reason to anticipate such an attack. The evidence presented by the
plaintiff fails to create a dispute of this material fact. Accordingly, we affirm.

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

FRANK G. CLEMENT , JR., J., delivered the opinion of the court, in which PATRICIA J. COTTRELL, P.J.,
M.S., and ANDY D. BENNETT , J., joined.

Larry L. Roberts, Nashville, Tennessee, for the appellant, David Luke Harvey.

Mark Nolan and Kathryn Wall Olita, Clarksville, Tennessee, for the appellee, Dickson County,
Tennessee, and Tom Wall, in his capacity as Sheriff of Dickson County, Tennessee.

                                             OPINION

        The plaintiff, David Luke Harvey, was incarcerated on April 4, 2006, for contempt of court
due to his failure to pay child support. On April 27, 2006, a fellow inmate violently attacked Harvey
in the general population area of the Dickson County Jail. The altercation began after Harvey
refused to give another inmate a piece of candy. The assault occurred in two waves. First, the
attacker struck Harvey with his fist in the back of the head and then in the mouth. Then, the attacker
ran off, only to go to a different area in the jail where cleaning supplies were located, retrieved a mop
handle, and returned to repeatedly beat Harvey with the mop handle. Harvey sustained two broken
arms, a broken nose, and several lacerations as a result of the attack.

         On July 14, 2006, Harvey filed this action against Dickson County and Sheriff Tom Wall,
in his capacity as Sheriff of Dickson County. In the Complaint, he alleged, inter alia, the defendants
were negligent by leaving dangerous instrumentalities – the mop handle – unsecured and in the
presence of the general population of the jail. In their respective Answers, the defendants denied
being negligent in any manner.

       Thereafter, the defendants moved for summary judgment contending the claim against Sheriff
Wall should be dismissed as a matter of law because Sheriff Wall, in his official capacity as Sheriff,
and the County had immunity. The defendants also contended that the undisputed material facts
showed that they had no knowledge or reason to anticipate the attack on Harvey as a matter of law.

        The only material fact in dispute is whether the defendants had advance knowledge or
warning that the incident was going to occur. In his statement of disputed facts, Harvey insisted that
the defendants had “advance warning because the Defendants either knew or should have known that
by leaving a broom and/or mop in the pod with unsupervised inmates that the risk of an incident,
such as the one between the Plaintiff and [the attacker], was reasonably foreseeable.”

      The trial court summarily dismissed the Complaint; however, it failed to state the legal
grounds upon which it decided the motion as Tenn. R. Civ. P. 56 requires.1 This appeal followed.

                                              STANDARD OF REVIEW

        The issues were resolved in the trial court upon summary judgment. Summary judgments
do not enjoy a presumption of correctness on appeal. BellSouth Adver. & Publ’g Co. v. Johnson, 100
S.W.3d 202, 205 (Tenn. 2003). This court must make a fresh determination that the requirements
of Tenn. R. Civ. P. 56 have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997).
We consider the evidence in the light most favorable to the non-moving party and resolve all
inferences in that party’s favor. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002). When reviewing
the evidence, we first determine whether factual disputes exist. If a factual dispute exists, we then
determine whether the fact is material to the claim or defense upon which the summary judgment
is predicated and whether the disputed fact creates a genuine issue for trial. Byrd v. Hall, 847 S.W.2d
208, 214 (Tenn. 1993); Rutherford v. Polar Tank Trailer, Inc., 978 S.W.2d 102, 104 (Tenn. Ct. App.
1998).


         1
           The trial court failed to fulfill its obligations under Tenn. R. Civ. P. 56 as amended in 2007. Rule 56 requires
the trial court to state the legal grounds upon which a summary judgment decision is made. In the interest of judicial
economy, we decline to remand the case for the trial court to state the legal grounds upon which the summary judgment
decision was based.

                                                           -2-
         Summary judgments are proper in virtually all civil cases that can be resolved on the basis
of legal issues alone, Byrd v. Hall, 847 S.W.2d at 210; Pendleton v. Mills, 73 S.W.3d 115, 121
(Tenn. Ct. App. 2001); however, they are not appropriate when genuine disputes regarding material
facts exist. Tenn. R. Civ. P. 56.04. The party seeking a summary judgment bears the burden of
demonstrating that no genuine disputes of material fact exist and that party is entitled to judgment
as a matter of law. Godfrey v. Ruiz, 90 S.W.3d at 695. Summary judgment should be granted at the
trial court level when the undisputed facts, and the inferences reasonably drawn from the undisputed
facts, support one conclusion, which is the party seeking the summary judgment is entitled to a
judgment as a matter of law. Pero’s Steak & Spaghetti House v. Lee, 90 S.W.3d 614, 620 (Tenn.
2002); Webber v. State Farm Mut. Auto. Ins. Co., 49 S.W.3d 265, 269 (Tenn. 2001). The court must
take the strongest legitimate view of the evidence in favor of the non-moving party, allow all
reasonable inferences in favor of that party, discard all countervailing evidence, and, if there is a
dispute as to any material fact or if there is any doubt as to the existence of a material fact, summary
judgment cannot be granted. Byrd v. Hall, 847 S.W.2d at 210; EVCO Corp. v. Ross, 528 S.W.2d 20
(Tenn. 1975). To be entitled to summary judgment, the moving party must affirmatively negate an
essential element of the non-moving party’s claim or establish an affirmative defense that
conclusively defeats the non-moving party’s claim. Cherry v. Williams, 36 S.W.3d 78, 82-83 (Tenn.
Ct. App. 2000).

                                               ANALYSIS

        The dispositive issue in this case is whether the defendants knew or had reason to anticipate
the attack on Harvey. The issue of liability arising from inmate-on-inmate assaults is not new to this
state. Our courts have repeatedly noted that penal institutions are not insurers of an inmate’s safety.
See Gillespie v. Metropolitan Government, No. 01A01-9109-CV-00317, 1992 WL 9441, at *1
(Tenn. Ct. App. Jan. 24, 1992). The general rule is that the penal institutions merely have a duty to
use reasonable and ordinary care to prevent foreseeable attacks on inmates by other inmates. Id. A
penal institution breaches its duty of care “when the institution’s authorities knew of or had reason
to anticipate an attack and did not use reasonable care to prevent it.” Id. (citing Spann v. State, 421
So.2d 1090, 1092, 1093 (Dist. Ct. App.1982), petition for review denied w/o op., 430 So.2d 452 (Fla.
1983); Lexington v. Greenhow, 451 S.W.2d 424, 425-26 (Ky. Ct. App. 1970); Parker v. State, 282
So.2d 483, 486 (La.), cert. denied, 414 U.S. 1093, 94 S.Ct. 724, 38 L.Ed.2d 550 (1973); Padgett v.
State, 558 N.Y.S.2d 433, 434 (App. Div.), app. denied, 76 N.Y.2d 711, 565 N.E.2d 516, 563
N.Y.S.2d 767 (1990); Williams v. Adams, 288 N.C. 501, 504, 219 S.E.2d 198, 200 (1975); Justice
v. Rose, 102 Ohio App. 482, 144 N.E.2d303, 304 (1957); Saunders v. State, 446 A.2d 748, 751 (R.I.
1982)).

        For a penal institution to be liable for injuries resulting from inmate-on-inmate assaults, the
general rule is that the institution must have had prior notice of an attack. Id. (citing Harris v. State,
61 N.J. 585, 297 A.2d 561, 563 (1972)). This principle was reaffirmed in Hanks v. State, No.
02A01-9810-BC-00295, 1999 WL 454459, at *3 (Tenn. Ct. App. July 2, 1999), wherein we noted
that, generally, there must be some prior notice of an attack for liability to attach.



                                                   -3-
         In Gillespie v. Metropolitan Government, an inmate was injured when another inmate struck
him with a milk crate. Gillespie, 1992 WL 9441, at *1. In affirming the trial court’s decision to grant
summary judgment to the defendants, we noted that Metropolitan Government’s motion for
summary judgment was supported by numerous affidavits of correctional officers working at the
jail, as well as the deposition testimony of the plaintiff, each of whom stated that at no time prior to
the assault had the plaintiff or any other inmate or correctional officer informed the affiant that the
attacker posed any threat to the plaintiff’s safety. Id. at *2. The affiants also stated that the plaintiff
had not requested to be removed from the attacker, and the attacker had no history of violent
behavior. Moreover, the plaintiff admitted in his deposition that he was never threatened by the
other inmate. Id. With the plaintiff having failed to provide any proof to create a dispute of fact as
to prior notice, we affirmed the summary dismissal based upon the defense of lack of notice.

        In Hanks, the plaintiff suffered personal injuries when another inmate threw a pan of hot
grease on him. Hanks, 1999 WL 454459, at *1. As in Gillespie, the plaintiff in Hanks admitted that
he had not notified anyone at the prison of his fear of a potential attack by the attacker. Id. at *4.
Moreover, there was no proof that the attacker had any disciplinary infractions or other history of
assaults during the two years he had been in prison prior the attack on the plaintiff. Id. After stating
that “[t]he penal institution breaches its duty [to use reasonable and ordinary care to prevent
foreseeable attacks on inmates by other inmates] when its authorities know of or have reason to
anticipate an attack and do not use reasonable care to prevent it,” and that there must generally be
some “prior notice of an attack,” we concluded that the State had no notice that the attacker “posed
any threat of harm to [the plaintiff],” and thus, “the State did not breach its required duty of care.”
Hanks, 1999 WL 454459, at *4. Accordingly, we affirmed the Claims Commission’s grant of
summary judgment in favor of the State of Tennessee. Id.

        In a similar case of Kinningham v. State, the plaintiff was grabbed by another inmate who
suddenly and without warning cut the plaintiff on the arm. Kinningham v. State, No. M2001-
00495-COA-R3-CV, 2001 WL 1089501, at *1 (Tenn. Ct. App. Sept. 18, 2001). The plaintiff
admitted in his deposition that he had no notice of potential harm, and he had no knowledge if the
penal officers had any such notice. The claim was summarily dismissed by the Claims Commission.
We affirmed the grant of summary judgment because the plaintiff offered no proof that the State had
any notice that a fellow inmate posed any threat of harm to the plaintiff. Id. at *4.

         Turning to the matter at hand, Harvey had been incarcerated for twenty-three days prior to
the assault. At no time during these three weeks was Harvey involved in any incidents or
altercations with his attacker. In fact, Harvey testified by deposition that he had previously assisted
the attacker with proof-reading a letter that the attacker had written to his girlfriend. Harvey further
testified that at no time prior to the assault did he believe the attacker posed a threat to his safety, and
Harvey had never advised anyone that the attacker posed a threat.2 Moreover, Harvey never


        2
         Harvey gave the following testimony at his deposition:
        Q: Did you have any warning that Mr. Robertson [the attacker] was going to attack you like that?
                                                                                                      (continued...)

                                                       -4-
requested to be moved from the area of the jail where the attacker was housed or Harvey was
assaulted. Furthermore, there is no proof in the record establishing that the attacker had any violent
tendencies or a history of altercations during his imprisonment. The record indicates that the attacker
was imprisoned as the result of a drug offense, not a violent act. Moreover, Sheriff Tom Wall
testified that he “never had any advance warning that Mr. Robertson, the attacker, would attack
Harvey, and to the best of his knowledge, no jail employee had such warning either.”

         Harvey claims the defendants knew or should have known that cleaning items like the mop
could be used as weapons if left in the jail pod for an extended period of time; therefore, the
defendants had constructive notice of the dangers that could be caused by leaving such
instrumentalities in a jail cell with unsupervised inmates. This, according to Harvey, amounts to a
breach of the duty to prevent foreseeable harm to the inmates. We, however, find this argument
unpersuasive because the relevant cases, Gillespie, Hanks and Kinningham, focus not on the
instrumentalities used in the inmate-on-inmate assaults, but rather, on the previous conduct of the
inmates at issue. Each of the instrumentalities used in the assaults in Gillespie and Hanks – cooking
grease and a milk crate – served an essential purpose in the penal institutions.3 Although each of
them could have been secured while not in use, and armed guards could have stood over the inmates
as each was being used, the relevant authorities have established that the penal institutions are not
required to employ such extraordinary safeguards. Instead, the issue in these cases is whether the
penal institution had notice that an inmate posed a threat to assault another inmate, and if so, did the
institution use reasonable care to prevent such an assault. See Hanks, 1999 WL 454459, at *3.

         We have determined that a reasonable person could draw but one conclusion from the facts
of this case – that the defendants did not have prior notice of the assault that took place, nor did they
have reason to anticipate an assault. We therefore affirm the grant of summary judgment.




         2
          (...continued)
         A: No.
         Q: Did any deputy jailer or employee of the jail have any warning that Mr. Robertson was going to
         attack you like that?
         A: I - - I don’t believe so, no.

         3
          Sheriff Tom W all admitted that, in retrospect, a mop handle could be used as a weapon, but he stated that “[u]p
until [Harvey] got hurt - - as far as I can ever remember I never remember anyone being injured with one. I just
personally never thought about a mop and a mop handle, you know.”

                                                           -5-
                                         IN CONCLUSION

       The judgment of the trial court is affirmed, and this matter is remanded with costs of appeal
assessed against the appellant, David Luke Harvey.



                                                      ___________________________________
                                                      FRANK G. CLEMENT, JR., JUDGE




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