                                                                                       04/23/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             November 14, 2017 Session

              EDDISON WILLIAMS v. STATE OF TENNESSEE

                  Appeal from the Tennessee Claims Commission
                 No. K20141365 William O. Shults, Commissioner


                            No. E2017-00626-COA-R3-CV


This appeal involves the jurisdiction of the Tennessee Claims Commission to hear an
action brought by a former medical student, Eddison Williams (claimant), against the
Quillen College of Medicine at East Tennessee State University. Claimant alleged that
the State, acting through medical school officials, “negligently breached its contractual
duties regarding following policies before dismissing [him] on disciplinary grounds.” He
argued his action stated a claim for “negligent care, custody and control of persons,” a
category of claims the Commission has jurisdiction to hear under Tenn. Code Ann. § 9-8-
307(a)(1)(E) (Supp.2017). The Commission concluded it had no subject matter
jurisdiction. We affirm.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Claims Commission
                           Affirmed; Case Remanded


CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and THOMAS R. FRIERSON, II, J., joined.

George T. Underwood, Jr., Knoxville, Tennessee, for the appellant, Eddison Williams.

Herbert H. Slatery, III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor
General; and Melissa Brodhag, Senior Counsel, Nashville, Tennessee, for the appellee,
State of Tennessee.




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                                            I.

        Claimant was dismissed from the medical school on January 16, 2014. On August
7, 2014, he filed his complaint against the State, ETSU, and Dr. Kenneth E. Olive,
Executive Associate Dean for Academic and Faculty Affairs at the medical school, in his
official capacity. Claimant alleged that his “permanent dismissal was negligently done
by Defendant without a hearing or other university procedures required by the catalog
and student hand book.” Specifically, the complaint alleges:

              The Defendants failed to comply with the due process
              procedures adopted by E.T.S.U. in its James H. Quillen
              College of Medicine Student Handbook Student’s BILL OF
              RIGHTS and the due process requirements of the Tennessee
              Board of Regents and such failures constituted negligence
              and breach of contract.

(Capitalization in original.)

       After extensive discovery, the Commission granted the State’s motion to dismiss
for lack of subject matter jurisdiction. The Commission ruled that claimant’s action did
not fall within the ambit of Tenn. Code Ann. § 9-8-307(a)(1)(E), which provides
jurisdiction for monetary claims against the State based on the acts or omissions of its
employees falling within the category of “negligent care, custody and control of persons.”
Claimant timely filed a notice of appeal.

                                           II.

       The issue presented is whether the Tennessee Claims Commission correctly
determined it did not have subject matter jurisdiction because the complaint did not state
a claim for the negligent care, custody or control of persons, based on the actions or
omissions of a state employee, as provided by Tenn. Code Ann. § 9-8-307(a)(1)(E).

                                           III.

        “The jurisdiction of the Claims Commission is a question of law that we review de
novo with no presumption of correctness.” Mullins v. State, 320 S.W.3d 273, 278 (Tenn.
2010) (citing Stewart v. State, 33 S.W.3d 785, 791 (Tenn. 2000)). The Commission
made numerous findings of fact in its judgment. Neither party challenges any of these
findings as erroneous or unsupported by the preponderance of the evidence. In his brief,
claimant cites and relies upon many of these facts to support his argument that state
officials negligently and unfairly dismissed him from medical school. However, the facts
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presented are largely irrelevant to the analysis required here, except to the extent that they
illumine whether the claim can be construed as falling within the statutory category of
“negligent care, custody and control of persons.”

                                               IV.

       This action involves the question of whether the State has removed its sovereign
immunity from such a lawsuit. As this Court observed in a case addressing this same
question,

              the State retains immunity for all claims except those claims
              enumerated in Tenn. Code Ann. § 9-8-307(a). Stated another
              way, “the Claims Commission lacks subject matter
              jurisdiction and has no authority to hear any claims that fall
              outside the categories enumerated in section 9-8-307(a).”
              Mullins, 320 S.W.3d at 279.

In re Demitrus M.T., No. E2009-02349-COA-R3-CV, 2011 WL 863288, at *14 (Tenn.
Ct. App., filed Mar. 14, 2011); see also Hale v. State, No. E2016-00249-COA-R3-CV,
2017 WL 445147, at *5 (Tenn. Ct. App., filed Feb. 2, 2017). Tenn. Code Ann. § 9-8-307
provides as follows:

              (a)(1) The commission or each commissioner sitting
              individually has exclusive jurisdiction to determine all
              monetary claims against the state based on the acts or
              omissions of “state employees,” as defined in § 8-42-101,
              falling within one (1) or more of the following categories:

                                    *      *         *

              (E) Negligent care, custody and control of persons[.]

(Emphasis added.) In Mullins, the Supreme Court, construing subsection (E), provided
the following guidance regarding the interpretation of this statute:

              The legislature made its intent clear in the 1985 amendment
              to the Act by stating: “[i]t is the intent of the general
              assembly that the jurisdiction of the claims commission be
              liberally construed to implement the remedial purposes of this
              legislation.” Act of March 25, 1985, ch. 105, § 1, 1985 Tenn.
              Pub. Acts 154, 154 (codified at Tenn. Code Ann. § 9–8–
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             307(a) (Supp.1985)); see also Hembree v. State, 925 S.W.2d
             513, 516 (Tenn. 1996). This is contrary to the general rule
             that statutes permitting lawsuits against the State “are in
             derogation of the state’s inherent exemption from suit and
             must be strictly construed.” Beare Co. v. Olsen, 711 S.W.2d
             603, 605 (Tenn. 1986); see State ex rel. Allen v. Cook, 171
             Tenn. 605, 106 S.W.2d 858, 860–61 (1937).

             In Stewart [v. State, 33 S.W.3d 785 (Tenn. 2000)], we
             observed that courts should defer to the expressed intention of
             the legislature that a waiver of sovereign immunity be
             liberally construed “in cases where the statutory language
             legitimately admits of various interpretations,” but also
             cautioned that

                    [a] policy of liberal construction of statutes,
                    however, only requires this Court to give “the
                    most favorable view in support of the
                    petitioner’s claim,” Brady v. Reed, 186 Tenn.
                    556, 563, 212 S.W.2d 378, 381 (1948), and
                    such a policy “does not authorize the
                    amendment, alteration or extension of its
                    provisions beyond [the statute’s] obvious
                    meaning.”      Pollard v. Knox County, 886
                    S.W.2d 759, 760 (Tenn. 1994). Moreover,
                    “[w]here a right of action is dependent upon the
                    provisions of a statute . . . we are not privileged
                    to create such a right under the guise of a liberal
                    interpretation of it.” Hamby v. McDaniel, 559
                    S.W.2d 774, 777 (Tenn. 1977).

             33 S.W.3d at 791 (alterations in original). Similarly, in
             Northland Insurance Co. [v. State, 33 S.W.3d 727 (Tenn.
             2000)], this Court, recognizing “the principle that a waiver of
             sovereign immunity must be clear and unmistakable,”
             observed that “[a] liberal construction of an existing category
             . . . is a different proposition than a construction creating a
             new category.” 33 S.W.3d at 728, 730.

320 S.W.3d at 279 (emphasis in original).

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        The Commission, in its final judgment, stated that “[n]either party argues, and the
Commission certainly agrees, that [claimant] was ever under the care or custody of the
State as contemplated by Tenn. Code Ann. § 9-8-307(a)(1)(E).” (Underlining in
original.) Although the legislature used the conjunctive word “and” in the language of
the statute, the Supreme Court has clarified that

              Following the legislative mandate to liberally construe the
              jurisdiction of the commission to implement the remedial
              purposes of the act, we interpreted section 9–8–307(a)(1)(E)
              in the disjunctive rather than the conjunctive . . . We
              concluded that pursuant to section 9–8–307(a)(1)(E) the
              Claims Commission had jurisdiction to hear a claim against
              the State where the state employee alleged to be negligent had
              a “legal duty to control . . . irrespective of whether he had
              actual care and custody . . . if he was negligent in the
              fulfillment of that duty.”

Mullins, 320 S.W.3d at 281 (quoting Stewart, 33 S.W.3d at 794); see also In re
Demitrus M.T., 2011 WL 863288, at *16 (“The proper inquiry is whether the State’s
involvement is such that it may be fairly said to have exercised either care, custody, or
control”) (emphasis in original). In the present case, we are dealing with a claim that the
State had sufficient “control” of claimant, because he did not argue that he was in the
State’s custody or care. The factor that there was no “custody” or “care” involved is not
determinative, but it is pertinent to the analysis, because the Mullins Court also
recognized that “[t]he concept of ‘custody’ is closely intertwined with the concepts of
responsibility for ‘care’ and ‘control.’ ” Id. at 280.

       Claimant’s argument is that the State employees, officers of the ETSU Quillen
medical school, had control over his future medical career, in that they controlled his
enrollment status in the school, and determined whether he would be awarded a medical
degree. He further asserts that ETSU assumed a duty to control its employees in a
manner that comports with the student handbook and the university’s policies and
procedures. Some of his claims are couched in terms of a violation of his due process.
To the extent that they could be construed as stating a claim for a constitutional due
process violation, the Commission has no subject matter jurisdiction over such a claim.
See, e.g., Shell v. State, 893 S.W.2d 416, 418 (Tenn. 1995).

       Regarding claimant’s argument that the medical school had a duty to control its
employees in a non-negligent manner, this Court addressed a similar argument in Byrd v.
State, 150 S.W.3d 414, 419-20 (Tenn. Ct. App. 2004), stating:

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             The Byrd employees argue that because employers have a
             duty to control their employees, the Claims Commission had
             jurisdiction to hear the claim of negligent supervision under
             Stewart v. State, 33 S.W.3d 785 (Tenn. 2000). In Stewart, . .
             . [t]he Tennessee Supreme Court reviewed the existing law,
             noting two categories of claimants who could recover: “An
             examination of the cases dealing with this grant of
             jurisdiction . . . makes clear that liability may be imposed for
             injuries to persons confined in penal institutions, residences,
             or health facilities maintained by the state. . . . [L]iability may
             [also] be imposed for injuries to third persons caused by those
             persons . . . .” Id. at 792. The [C]ourt then expanded the
             scope of the Claims Commission’s jurisdiction under section
             9–8–307(a)(1)(E): “[I]t is difficult to conceive that the
             legislature intended to deny jurisdiction in cases where
             negligent control of a person by a state employee resulted in
             injury, even though the injured person was not actually within
             the care or custody of the state employee.” Id. It found,
             however, that the claimant had not demonstrated that the state
             trooper had a legal duty to control the county deputies under a
             statute, under the common law, or by virtue of having
             assumed such a duty. Id. at 793–94.

             All of the cases cited interpreting section 9–8–307(a)(1)(E),
             including Stewart, involve an alleged duty by a state official
             to exert physical control of a person. In contrast, the Byrd
             employees allege that the Clinic failed to discipline Berry or
             terminate his employment, i.e. affect his legal status as an
             employee rather than physically controlling him. The Byrd
             employees cite no cases which stretch the language in section
             9–8–307(a)(1)[E] to include such a situation, and we decline
             to do so.

(Emphasis in original). In the present case, claimant is likewise arguing that he was
impacted by control of his legal status as a medical student, not physical control of his
person. As we concluded in Byrd, even granting the statutory language at issue a liberal
construction in favor of jurisdiction, we hold that it cannot be reasonably “stretched” so
far as to encompass the present situation. Claimant’s cause of action does not arise out of
the care, custody, or control of a person by a State employee. Consequently, the Claims
Commission’s determination that it had no subject matter jurisdiction must be affirmed.

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                                      V.

       The judgment of the Claims Commission is affirmed.   Costs on appeal are
assessed to the appellant, Eddison Williams.



                                    _______________________________
                                    CHARLES D. SUSANO, JR., JUDGE




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