                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  November 3, 2003 Session

            PHILLIP LUCAS, ET AL. v. STATE OF TENNESSEE,
          MICHAEL E. COLLINS, ET AL. v. STATE OF TENNESSEE

                        Appeal from the Tennessee Claims Commission
                  No. 1,604,201 AND 20,100,376      en banc, Commissioners,
                    Randy C. Camp, Vance W. Cheek, Jr., and W.R. Baker


                    No. M2002-02810-COA-R9-CV - Filed February 4, 2004


These consolidated cases present two separate factual situations involving alleged liability of the
state under the Tennessee Claims Commission Act, Tennessee Code Annotated section 9-8-301, et
seq., for dangerous conditions existing on two separate highways. In both cases the State asserted
in defense discretionary function immunity. Because this defense is central to both cases, the Claims
Commission consolidated the cases for consideration of the applicability of discretionary function
immunity. In an en banc order, the Commission, construing Tennessee Code Annotated section 9-8-
307(d) and cases based upon that section, overruled the State’s motions for summary judgment. We
hold that under the plain and unambiguous provisions of Tennessee Code Annotated section 9-8-
307(d) the State is not entitled to assert discretionary function immunity in actions under the
Tennessee Claims Commission Act and affirm the judgment of the Claims Commission.

 Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Tennessee Claims Commission
                                 Affirmed and Remanded

WILLIAM B. CAIN , J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR., P.J., M.S.,
and PATRICIA J. COTTRELL, J., joined.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Dawn Jordan,
Rebecca Lyford, George Coffin, Nashville, Tennessee, for the appellant, State of Tennessee.

Mart G. Fendley, Clarksville, Tennessee, for the appellee, Phillip Lucas.
Tony R.. Dalton, Chad D. Emerson, Knoxville, Tennessee, for the appellee, Michael E. Collins.

                                            OPINION

       At issue in these two consolidated appeals are separate assertions before the Tennessee
Claims Commission of tort liability of the state for maintaining dangerous conditions on the
highways. David Lucas, son of Phillip and Betty Lucas, died in an automobile accident on March
2, 1990 on State Highway 96 in Robertson County, Tennessee. The complaint alleged that in
constructing and maintaining the highway, at and near the vicinity of the accident, the grade and
curvature of the highway was dangerous and that the State had failed to properly bank the curve or
warn travelers of the dangerous condition of the road. The single car accident resulted in injuries
to David Lucas that were fatal. The State, with supporting affidavits, filed a Motion for Summary
Judgment asserting “discretionary function” immunity.

        On November 21, 1999, Michael Collins was driving his automobile southbound along State
Highway 155 (also known as Briley Parkway) and came upon a portion of the highway alleged to
be known as “dead man’s curve.” Passengers in his vehicle were Deanna L. Collins, Bobby E.
Collins and Ruth Collins. It was alleged that one Toni A. Rogers was driving her vehicle northbound
on Highway 155, entered “dead man’s curve,” lost control of her vehicle causing it to become
airborne and land on the claimant’s vehicle, seriously injuring Michael E. Collins and Deanna L.
Collins, and killing Bobby and Ruth Collins. The claim was filed with the Tennessee Claims
Commission based upon Tennessee Code Annotated section 9-8-307 for the negligent design and
maintenance of the portion of State Highway 155 called “dead man’s curve.” This claim was met
by a Motion for Summary Judgment supported by affidavit on behalf of the State claiming
discretionary function immunity. These two cases, along with two other cases not before the Court
on this appeal, were consolidated sua sponte by the Claims Commission for the purpose of ruling
upon separate summary judgment motions in each.

        On March 2, 2002, Claims Commissioner W.R. Baker entered an extensive and carefully
reasoned order construing the “immunities” provision of Tennessee Code Annotated section 9-8-
307(d), distinguishing Cox v. State, 844 S.W.2d 173 (Tenn.Ct.App.1992), declining to recognize as
controlling authority the unreported decision in Waters v. State, 1998 WL 880911
(Tenn.Ct.App.1998) and overruling the State’s motions for summary judgment based upon
discretionary function immunity.1

        On April 1, 2002, the State filed in these cases a Motion to Alter or Amend or, in the
alternative, for a rehearing en banc. The motion of the State for an en banc hearing before the
Claims Commission was granted and, on August 5, 2002, Commissioners Randy C. Camp, Vance
W. Cheek, Jr., and W.R. Baker entered an extensive and carefully considered order, once again
categorizing Cox v. State, 844 S.W.2d 173 (Tenn.Ct.App.1992) as being obiter dicta as to the point
in issue and declining to recognize Waters v. State, 1998 WL 880911 (Tenn.Ct.App.1998) as
precedential authority under Tennessee Supreme Court Rule 4 (H)(1) and once again overruling the
motions for summary judgment.




         1
            The State moved for summary judgment in these cases on the additional basis that the claimants had failed
to provide notice of dangerous conditions as required by Tennessee Code Annotated section 9-8-307(a)(I)(J), and, that
the State was protected by the statute of repose (TCA 28-3-202). The Claims Commission granted the statute of repose
motions insofar as the claims were predicated on acts or omissions occurring more than four years before the respective
dates of the claims and further held that questions of material fact remained for determination as to the notice claims.
These two rulings are not before the Court on this interlocutory appeal.

                                                          -2-
       Applications for permission to appeal were filed pursuant to Tennessee Rule of Appellate
Procedure 9 as to discretionary function immunity challenging the ruling of the Claims Commission.
The applications were granted by the Claims Commission and this Court. The consolidated case is
now before this Court for disposition.

GOVERNMENTAL (SOVEREIGN) IMMUNITY

        In the case of Cooper v. Rutherford County, 531 S.W.2d 783 (Tenn.1975), Justice Henry
mounted an impassioned assault upon the citadel of governmental immunity, which met with as
much success as did Pickett’s Charge up Cemetery Ridge at Gettysburg. The Justice opined in
dissent:

               Governmental immunity is a cankered, corroded and corrupted area of our
       law. It is the flaming sword used by cities and counties in Tennessee to [banish] the
       innocent victims of their wrongs and deny them their traditional day in court. It has
       become the hallmark of governmental irresponsibility–the defense by which
       governmental entities stoop to conquer their own citizens.

               ....

               I condemn sovereign immunity. I believe that justice demands, reason
       dictates, morality mandates and elemental consideration of conscience decree a
       change in confidence in the quality of justice, which according to Daniel Webster,
       is ‘man’s greatest interest on earth.’ Man’s eternal quest for justice is of equal
       dignity with his search for certainty.
               I would condemn this legal monstrosity to the oblivion which it so richly
       deserves.

Cooper v. Rutherford County, 531 S.W.2d 783, 785, 792 (Tenn.1975)(Henry, J., dissenting).

       In the nearly three decades that have elapsed since Cooper v. Rutherford County, no
successful challenge has been mounted upon the fundamental premise that the doctrine of
governmental immunity in Tennessee is of common law origin.

      Coffman v. City of Pulaski, 220 Tenn. 642, 422 S.W.2d 429 (1967) survived the attack in
Cooper v. Rutherford County and remains the law of Tennessee. Therein it is said:

                As to the argument that we should abolish this doctrine of immunity because
       it is without warrant in the common law as adopted in this State by our Constitution,
       (which adopted the common law of England as in force in North Carolina in 1796),
       it is sufficient to say that, accepting the plaintiff-in-error’s own argument that the
       common law should be written by judges to meet the needs of the society expected
       to act thereunder, it lay within the power of the Supreme Court of this state to adopt


                                                -3-
       and promulgate the doctrine of immunity presently under assault and the absence of
       an English precedent is immaterial to its validity.

Coffman v. City of Pulaski, 220 Tenn. 642, 645, 422 S.W.2d 429, 431 (Tenn.1967).

         Once the common law origin of governmental immunity is established, the long settled rule
of strict construction concerning statutes in derogation of the common law places a heavy burden
on the back of a plaintiff suing a sovereign in tort. Under this rule:

               It is well settled that a statute will not be construed to alter the common law,
       further than the act expressly declares or than is necessarily implied from the fact that
       it covers the whole subject-matter. Horne v. Railroad Co., 1 Cold., 77; State v.
       Miller, 11 Lea, 621; McCrea v. Galey, 1 Tenn. 251; Eaton v. Dickinson, 3 Sneed,
       404; Moyers v. Brown, 10 Humph., 77; Shaw v. Merchants’ National Bank of St.
       Louis, 101 U.S., 557, 25 L.Ed., 892.”

State v. Cooper, 120 Tenn. 549, 553; 113 S.W. 1048, 1049 (Tenn.1908); Olson v. Sharpe, 235
S.W.2d 11, 12 (Tenn.1950); see also, Lillienkamp v. Rippetoe, 133 Tenn. 57, 63, 179 S.W. 628
(1915).

        We begin therefore with the premise that at common law the state was absolutely immune
from tort liability as were cities and counties within the state. The immunity of the state and the
separate immunities of cities and counties developed along different paths through statutory modi-
fications and partial abrogations of immunity.

       As to the immunity of the state, the Supreme Court of Tennessee has provided the following
guidance:

              As background, we think it important and significant to outline the rights of
       the State of Tennessee as a sovereign. According to Article I, Section 17 of the
       Constitution of the State of Tennessee, suits may be brought against the State in such
       a manner and in such courts as the Legislature may by law direct, and in no other
       manner.
              In view of this, the Legislature has expressly provided by statute (T.C.A. §
       20-1702) as follows:
                       No court in the state shall have any power, jurisdiction, or
              authority to entertain any suit against the state, or against any officer
              of the state acting by authority of the state, with a view to reach the
              state, its treasury, funds, or property, and all such suits shall be
              dismissed as to the state or such officers, on motion, plea, or demurrer
              of the law officer of the state, or counsel employed for the state.
              In the case of State, ex rel. Allen v. Cook, supra, the Court said:



                                                 -4-
                        Article 1, section 17, of the Constitution, delegating to the
               Legislature the power to authorize suits against the state, being in
               derogation of the state’s inherent exemption from suit, must itself be
               strictly construed; hence legislation authorizing suits against the state
               must strictly pursue the constitutional requirements, and be so plain,
               clear, and unmistakable in its provisions as to the manner and form
               in which such suits may be brought as to leave nothing to surmise or
               conjecture. 171 Tenn. at 611, 106 S.W.2d at 860.

Brewington v. Brewington, 387 S.W.2d 777, 778-79 (Tenn.1965).

        Sovereign immunity of counties in Tennessee developed on the basis that a county was an
arm of the state and since it could exercise only the sovereignty delegated to it by the state
legislature, it was shielded by the sovereign immunity of the state.

                In Wood v. Tipton County, 7 Bax., 112, it was held that a county was no more
       liable to be sued for the neglect of its officers than is the State for the negligence of
       its officers in the discharge of their public duties.
                But in such matters it can do only such acts as may be allowed, that is,
       authorized by law. Shannon, sec. 496. It can exercise that portion of the sovereignty
       of the State communicated to it by the Legislature, and no more. Grant v. Lindsay,
       11 Heis., 651; Railway Co. v. Wilson County, 5 Pick., 604.
                Its liability to suit only extends to matters of contract and not to torts or the
       negligence of its employees. Hence an action for damages will not lie for laying off
       a public road by the County Court, which was afterwards declared by the court to be
       a shun-pike and ordered to be closed. Turnpike Co. v. Davidson County, 14 Lea, 74;
       Grant v. Lindsay, 11 Heis., 651; Hawkins v. Justices, 12 Lea, 356.
                The general rule is that counties are not liable for torts or negligence in the
       condition, use, and management of public institutions. Many reasons are assigned.
                1.       That there is no fund out of which satisfaction could be had.
                2.       That it is better that an individual should suffer than that the public
       should sustain an inconvenience.
                3.       That it is a subordinate political or governmental division of the State.
                4.       That its function or action in regard to such institutions are legislative,
       and that neither the State or county could be sued on such account.
                5.       That counties are instrumentalities of government and partake of the
       immunities of States while acting in a governmental capacity.

McAndrews v. Hamilton County, 105 Tenn. 399, 403-04, 58 S.W.483 (1900).

       The common law immunity of cities is essentially based upon the same considerations.
Cruse v. City of Columbia, 922 S.W.2d 492 (Tenn.1996); Hawks v. City of Westmoreland, 960
S.W.2d 10 (Tenn.1997).


                                                   -5-
       We are not concerned in this case with the separate statutory development of the limited
abrogation of sovereign immunity made applicable to cities and counties by the Tennessee
Governmental Tort Liability Act. Tenn.Code Ann. §§ 29-20-101, et seq. This act is not and never
has been applicable to the State of Tennessee or its agencies and departments. Tennessee Dep’t of
Mental Health, et al. v. Hughes, 531 S.W.2d 299 (Tenn.1975).

        Prior to the effective date of either the Tennessee Governmental Tort Liability Act in 1973
or the Tennessee Claims Commission Act in 1984, Tennessee recognized a common law immunity
for a public official in the performance of a discretionary act.

                The authorities seem to be in accord to the effect that public officials, who
       owe the performance of a ministerial duty to a particular individual, are liable to one
       injured as the proximate result of their nonfeasance or misfeasance in the
       performance of such duty. Where the duty is absolute, certain, and imperative, and
       is simply ministerial, the officer is liable in damages to any one specially injured,
       either by his omitting to perform the task or by performing it negligently or
       unskillfully. On the other hand, where his powers are discretionary, and to be exerted
       or withheld according to his own judgment, he is not liable to any private person for
       a neglect to exercise those powers, nor for the consequences of a willful exercise of
       them, where no corruption or malice can be imputed to him, and he keeps within the
       scope of his authority. Some of the cases refer to an officer possessing such
       discretionary powers as judicial or quasi-officer. But this rule goes no further than
       to relieve public officials of liability for nonfeasance and for the misfeasance of their
       servants or agents. Moynihan v. Todd, 188 Mass., 301, 74 N.E., 367, 108 Am. St.
       Rep., 473; Smith v. Zimmer, 45 Mont., 282, 125 Pac., 420; Shearman & Redfield on
       Neg. (3 Ed.), section 156; Doeg v. Cook, 126 Cal., 213, 58 Pac., 707, 77 Am. St.
       Rep., 171; Tholkes v. Decock, 125 Minn., 507, 147 N.W., 648, 52 L.R.A. (N.S.), 142,
       and notes.

Hale v. Johnston, 140 Tenn. 182, 197-98, 203 S.W. 949, 952-53 (1918).2

         At common law the sovereign entity, be it the state, a city, or a county, had no “discretionary
act” immunity and indeed needed none. The sovereign entity was already absolutely immune under
the common law doctrine of sovereign immunity. Because of sovereign immunity the entity was not
liable in respondeat superior for the acts or omissions of its agents, servants, or employees, except
in cases where such immunity was modified by statute or the entity was exercising proprietary
functions. Memphis v. Kimbrough, 59 Tenn. 133 (1873).

       “Discretionary act” immunity developed to protect officers, employees and agents of the
governmental entity in their individual capacity since they otherwise were not protected by the
umbrella of sovereign immunity. As one authority stated:


        2
            The rule stated in Hale v. Johnston is exhaustively annotated in 52 L.R.A. (new series) 142 (1914).

                                                         -6-
                The liability of public officers for the negligent failure to discharge
       ministerial duties expressly imposed upon them by law, in consequence of which
       injury is suffered by an individual member of the community, is well settled. The
       general rule is tersely stated by Mr. Justice Bunn in Howley v. Scott, 123 Minn. 159,
       51 L.R.A. (N.S.) 137, 143 N.W. 257, and as there laid down is followed and applied
       by practically all the courts. 23 Am. & Eng. Enc. Law, 377; 2 Shearm. & Redf. Neg.
       303 et seq.; Anne Arundel County v. Duckett, 83 Am. Dec. 557, and note (20 Md.
       468); 1 Dill. Mun. Corp. 5th ed. 483. This is true notwithstanding the fact that the
       county, town, or other municipality which they may represent is not responsible at
       the suit of a private person, either for their nonfeasance or misfeasance. The wrong
       of the officer is not the wrong of the municipal subdivision he may represent, but that
       of the officer, and he alone is responsible therefor, except perhaps where by law the
       municipality is equally liable. The county is not responsible to private persons for
       the torts of its sheriff, county auditor, or other officer, yet the officer himself, for his
       negligence in respect to the performance of his ministerial duties, is liable to any
       person who may suffer in consequence of such neglect.

Tholkes v. Decock, 125 Minn. 507, 509, 147 N.W. 648, 52 L.R.A. (N.S.) 142, 146-47 (1914).

       If Tholkes v. Decock applied to all acts of public officials rather than only to those purely
ministerial, the position of a public employee would indeed be precarious. To modify this general
exposure to liability, both the common law and statutory enactments developed “discretionary act”
immunity. As one authority has observed:

               Executive officers and employees. Public employees of the executive branch
       –everyone who is not in the legislative or judicial branches–were originally liable for
       their torts and certainly for those committed in excess of their authority. One
       solution holds state officers liable only for gross negligence or for specified conduct.
       In the twentieth century, state courts developed immunities for officers and
       employees of public entities. A little authority even provides an absolute immunity
       to higher level state officers, at least as to defamation or as to matters in which it is
       especially important for high level officers to feel unhampered by possible legal
       actions. More generally, officers and employees are said to enjoy qualified immunity
       for discretionary acts, but not for ministerial acts. The discretionary immunity is
       qualified or conditional because it is usually lost if the officer is guilty of bad faith,
       malice, corruption, wanton misconduct or the like.

Dobbs “The Law of Torts, Vol. 1, Ch. 15, sec. 273, 734-35 (2001).

       The term “discretionary function” was introduced into the law of Tennessee when the
Tennessee Governmental Tort Liability Act was enacted by Chapter 345 of the Public Acts of 1973.
This Act, applicable to local government entities, partially abrogated governmental immunity with
Tennessee Code Annotated section 29-20-205 providing, in part: “Immunity from suit of all


                                                   -7-
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.”

        This Act served the dual purpose (within the limits provided by the statute) of removing
immunity of the sovereign entity and shielding the employee, acting within the scope of his authority,
from liability to third persons. Hill v. City of Germantown, 31 S.W.3d 234 (Tenn.2000).

       The Act did not define “discretionary function” leaving Tennessee courts to fill the void
thereby created by falling back on the “discretionary” and “ministerial” definitions in Hale v.
Johnston. Noting that other jurisdictions had interpreted their statutory “discretionary function”
language, Judge Franks, dissenting in Davis v. City of Cleveland, 709 S.W.2d 613
(Tenn.Ct.App.1986), urged adoption of a “planning-operational” test as the proper standard. Davis,
709 S.W.2d at 616. The supreme court responded in Bowers v. City of Chattanooga, 826 S.W.2d
427 (Tenn.1992), a case predicated upon the Tennessee Governmental Tort Liability Act, by
adopting a “planning-operational” test and modifying Hale v. Johnston’s standard accordingly.

          As we have observed, the Tennessee Governmental Tort Liability Act is not applicable to the
case at bar and this discussion is made only in response to the position of the State of Tennessee that
it is entitled, under Tennessee Code Annotated section 9-8-307(d), to assert “discretionary function”
immunity in this case. The position of the State is not persuasive as it contradicts Tennessee Code
Annotated section 9-8-307(d).

THE CLAIMS COMMISSION ACT

     Keeping in mind that sovereign immunity is the rule, we turn now to the Tennessee Claims
Commission Act.

               Central to the resolution of the issue before us is the Claims Commission’s
       jurisdictional authority. Article I, § 17, of the Tennessee Constitution provides that
       the state may be sued in such manner and in such courts as the legislature by law
       directs. From 1796 until 1984, the General Assembly was extremely reticent in
       permitting claims against the state. Moreover, the courts’ reticence was evidenced
       by repeatedly pointing out that suits against the state were in derogation of the
       common law and that statutes purporting to permit these suits should be strictly
       construed. See, e.g., State ex rel. Allen v. Cook, 171 Tenn. 605, 106 S.W.2d 858, 860
       (1937); Stokes v. University of Tenn., 737 S.W.2d 545, 547 (Tenn.App.1987), cert.
       denied, 485 U.S. 935, 108 S.Ct. 1110, 99 L.Ed.2d 271 (1988). However, in 1984 the
       legislature enacted a sweeping procedure for filing monetary claims against the state.
       See Act of May 24, 1984, ch 972, 1984 Tenn. Pub. Acts 1026; Tenn.Code Ann. §§
       9-8-305, -307 (Supp.1984). The following year, the legislature amended the statute
       by adding the following statement: “It is the intent of the general assembly that the


                                                 -8-
      jurisdiction of the claims commission be liberally construed to implement the
      remedial purposes of this legislation.” Tenn.Code Ann. § 9-8-307(a)(Supp.1985).
Hembree v. State, 925 S.W.2d 513, 516 (Tenn.1996).

        The Tennessee Claims Commission Act, subject to its monetary cap on recoverable damages,
accomplished a sweeping abrogation of sovereign immunity as to the State of Tennessee relative to
acts or omissions of state employees.3 Pursuant to the statute, sovereign immunity is abrogated as
to:
                (C) Negligently created or maintained dangerous conditions on state
        controlled real property. The claimant under this subsection must establish the
        foreseeability of the risks and notice given to the proper state officials at a time
        sufficiently prior to the injury for the state to have taken appropriate measures;

                  ....

                  (I) Negligence in planning and programming for, inspection of, design of,
         preparation of plans for, approval of plans for, and construction of, public roads,
         streets, highways, or bridges and similar structures, and negligence in maintenance
         of highways, and bridges and similar structures, designated by the department of
         transportation as being on the state system of highways or the state system of
         interstate highways;
                  (J) Dangerous conditions on state maintained highways. The claimant under
         this subsection must establish the foreseeability of the risk and notice given to the
         proper state officials at a time sufficiently prior to the injury for the state to have
         taken appropriate measures;

Tenn. Code Ann. § 9-8-307(a)(C)(I)(J) (2003 Supp.).

       While the Tennessee Governmental Tort Liability Act applicable to local government entities
provides immunity to the local government entity in performance by an employee of a “discretionary
function,” (Tenn. Code Ann. § 29-20-205(a)), the Tennessee Claims Commission Act provides no
such immunity for the State of Tennessee. The controlling part of the Claims Commission Act
provides:

                 (c) The determination of the state’s liability in tort shall be based on the
         traditional tort concepts of duty and the reasonably prudent person’s standard of care.
                 (d) The state will be liable for actual damages only. No award shall be made
         unless the facts found by the commission would entitle the claimant to a judgment


         3
           A “state employee,” as pertinent to this case, is defined as “any person who is a state official, including
members of the General Assembly and legislative officials elected by the General Assembly, or any person who is
employed in the service of and whose compensation is payable by the state, or any person who is employed by the state
whose compensation is paid in whole or in part from federal funds.” Tenn.Code Ann. § 8-42-101(3)(A).

                                                         -9-
        in an action at law if the state had been a private individual. The state will not be
        liable for punitive damages and the costs of litigation other than court costs. The
        state will not be liable for willful, malicious, or criminal acts by state employees, or
        for acts on the part of state employees done for personal gain. The state may assert
        any and all defenses, including common law defenses, which would have been
        available to the officer or employee in an action against such an individual based
        upon the same occurrence. The state may assert any absolute common law
        immunities available to the officer or employee, however, good faith common law
        immunity may not be asserted.

Tenn. Code Ann. § 9-8-307(c)(d)(Supp.2003)(emphasis added).

         The Supreme Court of Tennessee has noticed the clash between the strict construction rule
established in State v. Cook, 171 Tenn. 605, 106 S.W.2d 858 (Tenn.1937) and Brewington v.
Brewington, 215 Tenn. 475, 387 S.W.2d 777 (Tenn.1965), and the legislatively-mandated liberal
construction rule established by Tennessee Code Annotated section 9-8-307(a)(3) relative to the
jurisdiction of the Claims Commission. See Stewart v. State, 33 S.W.3d 785, 791 (Tenn.2000); Cf.
Northland Insurance Co. v. State, 33 S.W.3d 727, 730 (Tenn.2000). However, there is room for
neither strict construction nor liberal construction when the controlling statutory provision is clear
and unambiguous. “When the language contained within the four corners of a statute is plain, clear,
and unambiguous, the duty of the courts is simple and obvious, ‘to say sic lex scripta, and obey it.’
” ATS Southeast, Inc. v. Carrier Corp., 18 S.W.3d 626, 629-30 (Tenn.2000); see also Hawks v. City
of Westmoreland, 960 S.W.2d 10, 16 (Tenn.1997); Miller v. Childress, 21 Tenn. 320, 321-22 (1841).

        The entire statutory purpose of the Tennessee Claims Commission Act is to establish the
state’s liability in tort based on the traditional tort concepts of duty and the reasonably prudent
persons’ standard of care. See Tenn. Code Ann. § 9-8-307(c)(Supp.2003). As restraint on this
purpose, the same statute provides: “For causes of action arising in tort, the state shall only be liable
for damages up to the sum of three hundred thousand dollars ($300,000) per claimant and one
million dollars ($1,000,000) per occurrence.” Tenn. Code Ann. § 9-8-307(e). Within these
prescribed monetary limits, the abrogation of sovereign immunity in Tennessee Code Annotated
section 9-8-307(a)(C)(I)(J) is unconditional as to liability in tort for actual damages.

        It is the provision of the statute reserving to the state certain preexisting defenses on which
the decision in this case must be predicated. The statute provides in part: “The state may assert any
and all defenses, including common law defenses, which would have been available to the officer
or employee in an action against such an individual based upon the same occurrence. The state may
assert any absolute common law immunities available to the officer or employee, however, good
faith common law immunity may not be asserted.” Tenn. Code Ann. § 9-8-307(d)(Supp.2003).

      Clearly only “absolute” common law immunities remain available to the state. Absolute
immunity is a well defined doctrine at common law. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct.



                                                  -10-
984, 47 L.Ed.2d 128 (U.S.1976). “Qualified immunity” is likewise well defined at common law.
Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (U.S.1982).

                The Supreme Court has consistently held that government officials are
       entitled to some type of immunity from suits for damages. “[P]ublic officers require
       this protection to shield them from undue interference with their duties and from
       potentially disabling threats of liability.” Harlow v. Fitzgerald, 457 U.S. 800, 806,
       102 S.Ct. 2727, 2732, 73 L.Ed.2d 396 (1982). Two types of immunity defenses have
       generally been recognized: absolute immunity and qualified immunity. Absolute
       immunity defeats a suit at the outset, provided that the official’s actions are within
       the scope of the immunity. Imbler v. Pachtman, 424 U.S. 409, 419 n. 13, 96 S.Ct.
       984, 989 n. 13, 47 L.Ed.2d 128 (1976). Qualified immunity is asserted as a defense,
       and shields government officials performing discretionary functions from civil
       liability if their conduct does not violate clearly established statutory or constitutional
       rights of which a reasonable person would have known. Harlow v. Fitzgerald, supra,
       457 U.S. at 818, 102 S.Ct. at 2738.
                “[O]fficials whose special functions or constitutional status require[]
       complete protection from suit” are accorded absolute immunity. Id. at 807, 102 S.Ct.
       at 2732. Absolute immunity from suit has been accorded to judges, Stump v.
       Sparkman, 435 U.S. 349, 98 S.Ct. 109, 55 L.Ed.2d 331 (1978), prosecutors, Imbler
       v. Pachtman, supra, legislators, Eastland v. United States Servicemen’s Fund, 421
       U.S. 491, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975), and to federal agency officials who
       perform adjudicatory or prosecutorial functions. Butz v. Economou, 438 U.S. 478,
       98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). The Supreme Court has been cautious in
       extending the protection of absolute immunity, and has noted that “federal officials
       who seek absolute exemption from personal liability for unconstitutional conduct
       must bear the burden of showing that public policy requires an exemption of that
       scope.” Id. at 506, 98 S.Ct. at 2911.
                The Supreme Court has provided that qualified immunity from damages
       liability is the general rule for executive officials charged with constitutional
       violations. Id. at 507, 98 S.Ct. at 2911. Qualified immunity is an attempted balance
       of the competing values of protecting individuals’ constitutional rights and protecting
       officials who are required to exercise their discretion, in order to encourage the
       vigorous exercise of official authority. Harlow v. Fitzgerald, supra, 457 U.S. at 813-
       14, 102 S.Ct. at 2736; Butz v. Economou, supra, 438 U.S. at 506, 98 S.Ct. at 2910.

Ray v. Pickett, 734 F.2d 370, 371-2 (C.A.Mo., 1984).

       Qualified immunity has been historically referred to as “good faith immunity.” See
Winchester v. Little, 996 S.W.2d 818, 826 (1998), perm. app. denied July 6, 1999, cert. denied 528
U.S. 1026, 120 S.Ct. 543, 145 L.Ed.2d 421 (Nov.29,1999); Gomez v. Toledo, 446 U.S. 635, 64
L.Ed.2d 572, 100 S.Ct. 1920, (1980); Wood v. Strickland, 420 U.S. 308, 43 L.Ed.2d 214, 95 S.Ct.
992 (1975). While the “good faith” standard was adjusted in Harlow v. Fitzgerald, 457 U.S. 800,


                                                  -11-
73 L.Ed.2d 396, 102 S.Ct. 2727 (U.S.1982) to shield government officials from liability where “their
conduct does not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” 73 L.Ed.2d at 410, it is clear that Harlow did not convert qualified
“good faith” immunity into absolute immunity since the case was remanded for reconsideration
rather than simply dismissed. Absolute immunity defeats a suit at the outset and nothing remains
to be addressed by an order of remand. It is only qualified immunity that would allow remand for
consideration of the factual basis for either a “good faith” standard as pre-existed Harlow v.
Fitzgerald, or a factual determination post Harlow v. Fitzgerald that official conduct “does not
violate clearly established statutory or constitutional rights of which a reasonable person would have
known.”

        It has long been recognized that absolute immunity envisions the tyranny of abuse of power
on an individual basis by persons clothed with authority. The justification for absolute immunity
is nowhere better expressed than by Judge Learned Hand in Gregoire v. Biddle, 177 F.2d 579, (2nd
Cir.1949).

                It does indeed go without saying that an official, who is in fact guilty of using
       his powers to vent his spleen upon others, or for any other personal motive not
       connected with the public good, should not escape liability for the injuries he may so
       cause; and, if it were possible in practice to confine such complaints to the guilty, it
       would be monstrous to deny recovery. The justification for doing so is that it is
       impossible to know whether the claim is well founded until the case has been tried,
       and that to submit all officials, the innocent as well as the guilty, to the burden of a
       trial and to the inevitable danger of its outcome, would dampen the ardor of all but
       the most resolute, or the most irresponsible, in the unflinching discharge of their
       duties. Again and again the public interest calls for action which may turn out to be
       founded on a mistake, in the face of which an official may later find himself hard put
       to it to satisfy a jury of his good faith. There must indeed be means of punishing
       public officers who have been truant to their duties; but that is quite another matter
       from exposing such as have been honestly mistaken to suit by anyone who has
       suffered from their errors. As is so often the case, the answer must be found in a
       balance between the evils inevitable in either alternative. In this instance it has been
       thought in the end better to leave unredressed the wrongs done by dishonest officers
       than to subject those who try to do their duty to the constant dread of retaliation.
       Judged as res nova, we should not hesitate to follow the path laid down in the books.
                The decisions have, indeed, always imposed as a limitation upon the
       immunity that the official’s act must have been within the scope of his powers; and
       it can be argued that official powers, since they exist only for the public good, never
       cover occasions where the public good is not their aim, and hence that to exercise a
       power dishonestly is necessarily to overstep its bounds. A moment’s reflection
       shows, however, that that cannot be the meaning of the limitation without defeating
       the whole doctrine. What is meant by saying that the officer must be acting within
       his power cannot be more than that the occasion must be such as would have justified


                                                 -12-
         the act, if he had been using his power for any of the purposes on whose account it
         was vested in him.

Gregoire v. Biddle, 177 F.2d at 581.

        The Court of Appeals for the Sixth Circuit, affirming the trial court in a rather celebrated civil
rights case, delineated the time-honored distinctions between absolute immunity on the one hand and
qualified immunity on the other in unmistakable terms in the case of Spurlock v. Satterfield, 167
F.3d 995 (6th Cir.1999). In that case Spurlock and his co-defendant Marshall had been prosecuted
for murder predicated in part upon the testimony of Deputy Sheriff Danny Satterfield. Further
investigation, after the conviction of Spurlock, established that other persons had committed the
murder and the Spurlock-Marshall convictions were set aside. In the civil rights action, Satterfield
claimed in defense that he was entitled to absolute immunity for his witness testimony and also
absolute immunity for his non-testimonial acts.4

       As to his witness testimony the court held that he was entitled to absolute immunity. Said
the court:

                  The issue here is not simply one of providing false testimony at trial, or even,
         for that matter, conspiring to give false testimony. It is well-settled that witnesses are
         granted absolute immunity from suit for all testimony provided in judicial
         proceedings. See Briscoe v. LaHue, 460 U.S. 325, 330-31, 103 S.Ct. 1108. 75
         L.Ed.2d 96 (1983). Thus, it is clear that Satterfield would be insulated from liability
         for any testimony that he provided as a witness at trial, no matter how egregious or
         perjurious that testimony was alleged to have been. Accordingly, the district court
         correctly found that Satterfield was absolutely immune from suit for his testimony
         during Spurlock’s criminal trial, and we easily affirm the district court’s conclusion
         in that regard. Moreover, we note also that the mere fact that plaintiffs may allege
         a conspiracy to render false testimony, as opposed to simply alleging that one person
         testified falsely at trial, does not waive absolute testimonial immunity. See Alioto v.
         City of Shively, Kentucky, 835 F.2d 1173, 1174-75 (6th Cir.1987); Macko v. Byron,
         760 F.2d 95, 97 (6th Cir.1985). Thus, Satterfield is correct that an alleged conspiracy
         to provide false testimony does not abrogate his right to absolute testimonial
         immunity.

167 F.3d 995, 1001 (6th Cir.1999).

       As to his non-testimonial actions, the court first rejected his claim of absolute immunity and
then addressed his alternative claim of qualified immunity.


         4
           Satterfield, in addition to his false testimony, attempted to persuade a co-defendant, Apple, to lie and claim
to have been a witness to the murder and further gave Apple “hush money” after the plaintiffs’ trials in order to induce
his continued silence.

                                                         -13-
               Qualified immunity, like absolute immunity, is also available as an
       affirmative defense that protects public officials not only from liability, but also from
       the “burdens of trial and discovery.” English, 23 F.3d at 1089. See also Noble v.
       Schmitt, 87 F.3d 157, 161 (6th Cir.1996). Officials who are not entitled to absolute
       immunity may, in certain instances, “enjoy the protection of qualified immunity.”
       Achterhof, 886 F.2d ta 829. In examining a claim for qualified immunity, we must
       balance the need for public officials to be free from the constant fear of lawsuits
       brought while performing their official duties, with the recognition that “[i]n
       situations of abuse of office, an action for damages may offer the only realistic
       avenue for vindication of constitutional guarantees.” Harlow v. Fitzgerald, 457 U.S.
       800, 814, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In Harlow, the Supreme Court
       articulated the test for qualified immunity and stated that “government officials
       performing discretionary functions generally are shielded from liability for civil
       damages insofar as their conduct does not violate clearly established statutory or
       constitutional rights of which a reasonable person would have known.” Id. at 818,
       102 S.Ct. 2727 (abandoning the subjective good faith approach to addressing
       qualified immunity for the more objective reasonableness test); see also Noble, 87
       F.3d 375, 386 (6th Cir.1994); Adams v. Metiva, 31 F.3d 375, 386 (6th Cir.1994).

167 F.3d 995, 1005 (6th Cir.1999).

        The court thereupon rejected Satterfield’s claim of qualified immunity and affirmed the trial
court’s judgment for Spurlock on the basis of his alleged non-testimonial acts.

      As to the procedural aspects of a qualified immunity defense, the Sixth Circuit Court of
Appeals has observed:

               “Qualified or ‘good faith’ immunity is an affirmative defense that is available
       to government officials performing discretionary functions.” Rich v. City of Mayfield
       Hts., 955 F.2d 1092, 1094 (6th Cir.1992). “The ultimate burden of proof is on the
       plaintiff to show that the defendants are not entitled to qualified immunity.” Id. at
       1095 (emphases added). The Sixth Circuit, en banc, has recently defined the
       components of the qualified immunity defense:
               Government officials performing discretionary functions generally are
               shielded from liability for civil damages insofar as their conduct does
               not violate clearly established [federal] statutory or constitutional
               rights of which a reasonable person would have known. The
               procedure for evaluating claims of qualified immunity is tripartite:
               First, we determine whether a constitutional violation has occurred;
               second, we determine whether the right that was violated was a
               clearly established right of which a reasonable person would have
               known; finally, we determine whether the plaintiff has alleged
               sufficient facts, and supported the allegations by sufficient evidence,


                                                 -14-
               to indicate that what the official allegedly did was objectively
               unreasonable in light of the clearly established constitutional rights.
               Williams v. Mehar, 186 F.3d 685, 691 (6th Cir.1999) (en banc)
               (quotations omitted; brackets added) (citing Harlow v. Fitzgerald,
               475 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Dickerson
               v. McClellan, 101 F.3d 1151, 1157-58 (6th Cir.1996)).

Scott v. Clay County, Tennessee, 205 F.3d 867, 873-74, n. 9 (6th Cir.2000).

        The Claims Commission, in its August 5, 2002 Order, states “it appears that what the state
calls the ‘qualified immunity doctrine’ is in reality just an adaptation of the discretionary acts
doctrine to actions brought under 42 U.S.C., section 1983.” While there is, in the context of this
case, barely marginal distinction between the qualified immunity doctrine and the discretionary acts
doctrine, qualified immunity is of ancient origin. In Scheuer v. Rhodes, 416 U.S. 232, 40 L.Ed.2d
90, 94 S.Ct. 1683 (U.S.1974), while tracing the origin of qualified immunity to the statute of
Westminster I, 3 Ewd., 1, c. 24 (1275) and observing that “good-faith performance of a discretionary
duty has remained, it seems as a defense,” and after referring to absolute immunity the Court goes
on to state:

       [I]f, on the other hand, the immunity is not absolute but rather one that is qualified
       or limited, an executive officer may or may not be subject to liability depending on
       all the circumstances that may be revealed by evidence. The concept of the immunity
       of government officers from personal liability springs from the same root
       considerations that generated the doctrine of sovereign immunity. While the latter
       doctrine–that the “King can do no wrong” –did not protect all government officers
       from personal liability, the common law soon recognized the necessity of permitting
       officials to perform their official functions free from the threat of suits for personal
       liability.

Scheuer, 416 U.S. at 239.

       Any lingering doubt that “discretionary function” immunity is, in fact, a qualified immunity
and not an absolute immunity is settled by the United States Supreme Court in Anderson v.
Creighton, 483 U.S. 635, 97 L.Ed. 523, 107 S.Ct. 3034 (1987) wherein the court observed the
tension between government officials abusing their offices on the one hand and being honestly
mistaken as to their conduct on the other. Said the court:

       Our cases have accommodated these conflicting concerns by generally providing
       government officials performing discretionary functions with a qualified immunity,
       shielding them from civil damages liability as long as their actions could reasonably
       have been thought consistent with the rights they are alleged to have violated. See,
       e.g., Malley v. Briggs, 475 U.S. 335, 341, 89 L.Ed.2d 271, 106 S.Ct. 1092 (1986)
       (qualified immunity protects “all but the plainly incompetent or those who knowingly


                                                -15-
         violate the law”); id., at 344-345, 89 L.Ed.2d 271, 106 S.Ct. 1092 (police officers
         applying for warrants are immune if a reasonable officer could have believed that
         there was probable cause to support the application); Mitchell v. Forsyth, 472 U.S.
         511, 528, 86 L.Ed.2d 411, 105 S.Ct. 2806 (1985) (officials are immune unless “the
         law clearly proscribed the actions” they took); Davis v. Scherer, 468 U.S. 183, 191,
         82 L.Ed.2d 139, 104 S.Ct. 3012 (1984); id., at 198, 82 L.Ed.2d 139, 104 S.Ct. 3012.
         (Brennan, J., concurring in part and dissenting in part); Harlow v. Fitzgerald, supra,
         at 819, 73 L.Ed.2d 396, 102 S.Ct. 2727. Cf., e.g., Procunier v. Navarette, 434 US
         555, 562, 55 L.Ed.2d 24, 98 S.Ct. 855 (1978). Somewhat more concretely, whether
         an official protected by qualified immunity may be held personally liable for an
         allegedly unlawful official action generally turns on the “objective legal
         reasonableness” of the action, Harlow, 457 U.S., at 819, 73 L.Ed.2d 396, 102 S.Ct.
         2727, assessed in light of the legal rules that were “clearly established” at the time
         it was taken, id., at 818, 73 L Ed 2d 396, 102 S Ct 2727.

Anderson, 483 U.S. at 638-39, 107 S.Ct. 3038, at 530 (1987).

         Before discussing further the controlling issue involving “discretionary function” immunity
it is helpful to consider the legislative history of the controlling provisions of the Tennessee Claims
Commission Act. In the original Act creating the Claims Commission, the controlling provision
simply stated: “The state may assert any and all defenses, including common law defenses, which
would have been available to the officer or employee in an action against such individuals based
upon the same occurrence.” 1984 Tenn. Pub. Acts 972, sec. 8(d). Since the cases are clear through-
out the country that common law immunities are affirmative defenses, we may assume, that under
the original Act, both absolute immunities and good faith immunities were available to the state
under this provision of the Act. Chapter 105 of the Public Acts of 1985 amended the Claims
Commission Act by adding to the above sentence a provision that “the state may assert any absolute
common law immunities available to the officer or employee, however, good faith common law
immunity may not be asserted.” 1985 Tenn. Pub. Acts 105, sec. 6.5 By this section of Chapter 105,
the legislature clearly determined to separate common law defenses from common law immunities,
and to restrict the state to the use of only absolute common law immunity.

       At bar the discussion in brief and argument centered around whether or not “discretionary
function” immunity was in fact “good faith” immunity and thus foreclosed to the state under the
express provisions of Tennessee Code Annotated section 9-8-307(d). The discussion is academic,
as under no circumstances is any immunity available to the state which could not be characterized
as “absolute immunity,” such being the only type of immunity that survived the enactment of the
Tennessee Claims Commission Act, as amended by Chapter 105 of the Public Acts of 1985.




        5
             Section 1 of Chapter 105 added the provision that “it 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.”

                                                        -16-
         Efforts to superimpose the “planning-operational” test of Bowers v. City of Chattanooga onto
the Tennessee Claims Commission Act are to no avail given the explicit language used by the
legislature in limiting immunities available to the state to “absolute” immunities. The “planning
operational” test of Bowers involves a construction of the “discretionary function” provisions of the
Tennessee Governmental Tort Liability Act. Tenn. Code Ann. § 29-20-205(a). Aside from the fact
that such discretionary function immunity is foreign to the Tennessee Claims Commission Act, it
fails to qualify as an “absolute” immunity.

        The decision herein is at odds with certain language in four Tennessee cases, these being
chronologically Cox v. State, 844 S.W.2d 173 (Tenn.Ct.App.1992); Youngblood v. Clepper, 856
S.W.2d 405 (Tenn.Ct.App.1993); Waters v. State, 03A01-9808-BC-00243, 1998 WL 880911
(Tenn.Ct.App.1998) and Bolton v. State, E2001-02960-COA-R9-CV; 2002 WL 1798538 (Tenn.Ct.
App.2002). In Cox, an inmate on work release attacked, raped and sodomized a claimant. One
section of this Court’s opinion dealt with discretionary function immunity, but the case was decided
on the issue of foreseeability. The entire discussion in the case as to discretionary function immunity
provided:

                Claimant argues that the acts complained of are not discretionary functions.
       However, the State maintains that it has never asserted discretionary function
       immunity as a defense to this claim. The Commissioner found that “all actions
       complained of herein deal with discretionary duties of State employees for which
       such employees are immune from liability” and that “pursuant to [T.C.A. §] 9-8-
       307(d) the State may assert this common law immunity.”
                We agree that, under T.C.A. § 9-8-307(d), the State may assert the common
       law immunity which has developed in this State with regard to discretionary actions
       of State employees. See State ex rel. Robertson v. Farmers’ State Bank, 162 Tenn.
       499, 39 S.W.2d 281 (1931); Buckner v. Carlton, 623 S.W.2d 102 (Tenn.App.1981).
       In the recent case of Bowers ex rel. Bowers v. City of Chattanooga, 826 S.W.2d 427
       (Tenn.1992), the Supreme Court adopted the “planning-operational test,” under
       which “decisions that rise to the level of planning or policy-making are considered
       discretionary acts which do not give rise to tort liability, while decisions that are
       merely operational are not considered discretionary acts and, therefore, do not give
       rise to immunity.” Id. at 430.
                Because we affirm the findings of the Commissioner with regard to the issue
       of foreseeability, however, we find it unnecessary to determine whether the acts
       complained of were discretionary. This issue is pretermitted.

Cox v. State, 844 S.W.2d 173, 176 (Tenn.Ct.App.1992).

        Thus, while the Commissioner applied discretionary function immunity, one must take note
of the fact that the State never asserted discretionary function immunity as a defense in that case.
In the discussion of Tennessee Code Annotated section 9-8-307(d) the court opines that “the state
may assert the common law immunity which has developed in this state with regard to discretionary


                                                 -17-
actions of state employees.” Id. In support of this statement the court relies on two cases, State ex
rel. Robertson v. Farmers State Bank, 162 Tenn. 499, 39 S.W.2d 281 (1931); Buckner v. Carlton,
623 S.W.2d 102 (Tenn.Ct.App.1981). Both of these cases predated the enactment of the Claims
Commission Act in 1984. Permission to appeal in Cox v. State was denied by the Supreme Court
on October 26, 1992.

       Youngblood v. Clepper, 856 S.W.2d 405 (Tenn.Ct.App.1993) was a suit not before the
Claims Commission but before the Circuit Court of Marion County, and not against the State of
Tennessee but against a Tennessee Highway patrolman in his individual capacity. The acts in issue
occurred on August 12, 1984, which predated the effective date of section 8 of Chapter 972 of the
Public Acts of 1984 (the Claims Commission Act), which effective date was January 1, 1985.
Section 8 of the Claims Commission Act was codified as Tennessee Code Annotated section 9-8-
307.

        Thus, this Court in Youngblood v. Clepper specifically held that Tennessee Code Annotated
section 9-8-307 was not applicable to that case and the decision applied case law predating the
Claims Commission Act. Youngblood, 856 S.W.2d at 406.

         Waters v. State, 03A01-9808-BC-00248, 1998 WL 880911 (Tenn.Ct.App. Dec.17,1998) and
Bolton v. State, E2001-02960-COA-R9-CV, 2002 WL 1798538 (Tenn.Ct.App. Aug.6,2002) are
unreported decisions of the Court of Appeals in which applications to appeal to the Supreme Court
were not filed.6 In Waters, the claimant appealed an adverse decision of the Claims Commission in
a traffic accident on Highway 64 in Polk County resulting in the death of Mr. Waters. The Claims
Commission dismissed the action holding that installation of the guardrails was discretionary and
the State was therefor immune from suit. The Commission also held that the claimant failed to
establish any negligence by the State in its design for maintenance of the highway, or that its actions
were the proximate cause of the accident. The Court of Appeals sustained the action of the Claims
Commission on the basis that “the Claims Commission properly determined that the State is immune
from suit on this evidence under T.C.A. §§ 9-8-307(a)(1)(I) and (J).” Waters, 1998 WL 880911, *
3. The appellate court then declined to address the other basis on which the Claims Commission had
dismissed the claim. The court predicates its opinion upon its statement:

                T.C.A. § 9-8-307 provides the Commission has exclusive jurisdiction to
        decide certain monetary claims against the State. In this case, the Claimant brought
        claims under T.C.A. § 9-8-307(a)(1)(I) and T.C.A. § 9-8-307(a)(1)(J). Under T.C.A.
        § 9-8-307(d), the State “may assert any and all defenses, including common law
        defenses, which would have been available to the officer or employee in an action
        against such an individual based upon the same occurrence.” Additionally, T.C.A.
        § 9-8-307(g) provides “[n]o language contained in this chapter is intended to be
        construed to abridge the common law immunities of state officials and employees.”


        6
             Under Tennessee Supreme Court rule 4(H)(1), an unpublished opinion is controlling authority between the
parties to the case but for all other purposes is considered persuasive authority.

                                                       -18-
       Thus, under T.C.A. § 9-8-307(d), “the State may assert the common law immunity
       which has developed in this State with regard to discretionary actions of State
       employees.” Cox v. State, 844 S.W.2d 173,176 (Tenn.App.1992)
Waters, 1998 WL 880911, * 1 (Tenn.Ct.App. Dec.19,1998).

       The language of Tennessee Code Annotated section 9-8-307(g) is limited to the common law
immunities of state officials and employees. No state official or employee was a defendant either
in Waters or in the case at bar. The common law immunities of state officials and employees does
not enure to the benefit of the state except to the extent that section 307(d) allows the state to assert
such immunities, and that allowance is limited to absolute immunities.

        The difficulty with this reliance on the provision of Tennessee Code Annotated section 9-8-
307(d) that the State “may assert any and all defenses, including common law defenses, which would
have been available to the officer or employee in an action against such an individual based upon
the same occurrence,” is that the same statute makes an express distinction between “common law
defenses” and “common law immunities.” The Waters’ court then relies on the statement from Cox
v. State, 844 S.W.2d 173, 176 (Tenn.App.1992) that “the State may assert the common law
immunity which has developed in this State with regard to discretionary actions of state employees.”
The actual provision of Tennessee Code Annotated section 9-8-307(d) as to such common law
immunities is “the State may assert any absolute common law immunities available to the officer or
employee, however, good faith common law immunity may not be asserted.”

        In Bolton v. State, E2001-02960-COA-R9-CV, 2002 WL 1798538 (Tenn.Ct.App. Aug.6,
2002) the State appealed the action of the Claims Commission denying its Motion for Summary
Judgment based on discretionary function immunity. Janet Bolton was injured in September of 1995
in an automobile accident on U.S. Highway11. She sued under Tennessee Code Annotated section
9-8-307(a)(1)(I) and (J), the same provisions of the statute on which the case at bar is predicated.
Without elaboration the Claims Commission overruled the summary judgment motion of the State.
Certain concessions by the parties must be noted.

        The State, in its reply brief, however, concedes it is not entitled to summary judgment
        on Plaintiffs’ claim that the portion of Highway 11 that includes the intersection was
        negligently designed or constructed but instead argues Plaintiffs did not raise this
        claim at the trial level.
                 Plaintiffs contend the Claims Commission correctly denied the State’s Motion
        for Summary Judgment and argue the State is not entitled to discretionary function
        immunity for the negligent design and construction and the dangerous condition of
        the intersection under Tenn.Code Ann. §§ 9-8-307(a)(1)(I) and (J). Plaintiffs,
        however, concede the State is entitled to judgment as a matter of law under the
        discretionary function immunity defense for its decision whether or not to install a
        traffic control device at the intersection.

Bolton, 2002 WL 1798538 * 2.


                                                  -19-
       The critical portion of the opinion of the Court of Appeals states:

                Furthermore, under Tenn.Code Ann. § 9-8-307(d), “ ‘the State may assert the
       common law immunity which has developed in this State with regard to discretionary
       actions of State employees.’ ” Waters v. State, No. 03A01-9808-BC-00243, 1998
       Tenn.App. LEXIS 844, at * 2-3 (Tenn.Ct.App. Dec.17,1998), no appl. perm. app.
       filed, (quoting Cox v. State, 844 S.W.2d 173, 176 (Tenn.Ct.App.1992)). The State
       is immune from suit for discretionary acts under this defense. Courts, when
       determining whether a particular decision of the State is discretionary, are to apply
       the planning-operational test. Id. at * 3; Cox v. State, 844 S.W.2d at 176. When
       using the planning-operational test, courts are to consider “ ‘ (1) the decision-making
       process and (2) the propriety of judicial review of the resulting decision.’ ” Waters
       v. State, 1998 Tenn.App. LEXIS 844, at * 3 (quoting Bowers v. Chattanooga, 826
       S.W.2d 427, 431 (Tenn.1992)).

2002 WL 1798538 * 4.

         Reliance is once again placed on the language from Cox v. State, 844 S.W.2d 173, 176
(Tenn.Ct.App.1992) that “the state may assert the common law immunity which has developed in
this state with regard to discretionary actions of state employees.” Once again this language is not
what the statute says. The only other authority relied on in Bolton is the same language from Waters
v. State.

       Footnote 3 in the Bolton opinion states:

               This Court in Waters v. State held that, while our Supreme Court in Bowers
               v. City of Chattanooga applied the planning-operational test to an action
               against a municipality under the Tennessee Governmental Tort Liability Act,
               the test was also applicable to actions against the State where the State raises
               the defense of common law immunity. Waters v. State, 1998 Tenn.App.
               LEXIS 844, at * 3.

Waters, 2002 WL 1798538, *4 at n. 3.

        The difficulty with this position is that while discretionary function immunity upon which
Bowers v. City of Chattanooga is predicated is specifically applicable to counties and cities under
the Tennessee Governmental Tort Liability Act, it is not applicable to the State of Tennessee under
the Claims Commission Act, section 9-7-307(d) as only “absolute” immunities are available to the
state. Discretionary function immunity is a qualified (good faith) immunity rather than an absolute




                                                -20-
immunity and by the express provisions of section 307(d) of the statute cannot be relied upon by the
State in an action before the Claims Commission.7

        Even in the absence of a clear legislative mandate such as is contained in Tennessee Code
Annotated section 9-8-307(d), the State could not assert discretionary function immunity as a matter
of law so as to justify summary judgment.

                 Although absolute immunity from § 1983 actions is available to government
         officials performing legislative functions at the municipal level, generally only
         qualified or “good faith” immunity has been extended to government officials
         performing discretionary functions that are characteristically executive or
         administrative. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90
         (1974); Harlow, supra; Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86
         L.Ed.2d 411 (1985). See, also, Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034,
         97 L.Ed2d 523 (1987); Section 1983: Sword and Shield, supra, at 340-42; and
         Federal Civil Rights Acts, supra, §§ 108, 109. Consequently, because the United
         States Supreme Court has applied a “function” test in determining the extent of
         immunity granted to government officials, and because that Court has strongly
         suggested, and other courts have held, that government officials performing at the
         municipal level should not be classified differently from government officials
         performing at the federal or state level, we conclude that immunity is available to
         government officials performing discretionary functions at the municipal level that
         are executive or administrative in nature, but that that immunity is limited to the
         qualified or “good faith” variety.

Point Properties, Inc. v. Anderson, 584 So.2d 1332, 1338 (Ala.1991).

       A case closely analogous to the case at bar is Savage v. State, 127 Wash.2d 434, 899 P.2d
1270 (1995). The legislature of Washington had enacted a sweeping abrogation of sovereign
immunity similar to the Tennessee Claims Commission Act. In a suit against the State for alleged
negligent supervision of a prisoner who raped the plaintiff, the finding of the Supreme Court of
Washington denied the effort of the State to assert sovereign immunity:

                In addition, the Court of Appeals’ holding on the immunity issue is based on
         a premise we cannot sustain: that the immunity of a government agent will be
         extended to the State unless expressly prohibited by the Legislature. Savage, 72
         Wash.App. at 490, 864 P.2d 1009. That conclusion simply cannot be reconciled with

         7
            The metamorphosis of the position of the State on this issue is interesting and predictable. In Cox v. State,
“the state maintains that it has never asserted discretionary function immunity as a defense to this claim.” 844 S.W .2d
173, 176 (Tenn.Ct.App.1992). W hen in spite of this assertion the Claims Commission in Cox applied discretionary
function immunity and the Court of Appeals approved such actions, although in a section of the opinion not necessary
to a decision in the case, the State promptly accepted this invitation and in both Waters and Bolton, specifically relied
on discretionary function immunity as it has relied on such immunity in the case at bar.

                                                         -21-
the legislative abrogation of sovereign immunity. That abrogation would be pointless
if the Legislature were required, in order to give it effect, to reiterate it at every
occasion in which it might apply. There is no basis for treating RCW 4.92.090 as a
nullity, particularly as it is one of the broadest waivers of sovereign immunity in the
country. See Comment, Abolition of Sovereign Immunity in Washington, 36
Wash.L.Rev. 312, 313 (1961).

                                          B

            The Extension of Qualified Personal Immunity for the State

        The proper starting point for a discussion of whether the State is immune for
the qualifiedly immune acts of its officers must begin with the legislative abrogation
of sovereign immunity.
        Article 2, § 26 of the Washington State Constitution provides: “[t]he
legislature shall direct by law, in what manner, and in what courts, suits may be
brought against the state.” In 1961 the Legislature waived the State’s sovereign
immunity from civil liability. Laws of 1961, ch. 136, § 1 (codified as RCW
4.92.090). As subsequently amended, that section provides:
                The state of Washington, whether acting in its governmental
        or proprietary capacity, shall be liable for damages arising out of its
        tortious conduct to the same extent as if it were a private person or
        corporation.
        This provision operates to make the State presumptively liable in all instances
in which the Legislature has not indicated otherwise. (underscoring added).
        Quite apart from the legislative mandate abrogating sovereign immunity, the
different functions personal and governmental immunity are designed to serve
support maintaining state liability in this context, even where the agent enjoys
qualified personal immunity. One court has explained the difference as follows:
        [T]he fundamental reasons for the two immunities differ; for the
        officer it is to encourage unrestrained execution of responsibility,
        while for the sovereign it is to prevent judicial scrutiny of basic
        policies formulated by coordinate branches of government. To
        insulate the Government from liability for the inevitable mishaps
        which will occur when its employees perform their functions without
        fear of liability not only is unjust, but also serves no purpose for
        which sovereign immunity need exist.
        Downs v. United States, 382 F.Supp. 713, 750 (M.D.Tenn.1974) (in a Federal
Tort Claims Act case it was unnecessary to decide whether government agents were
immune, because the government would not be immune even if they were), rev’d on
other grounds, 522 F.2d 990 (6th Cir.1975); see also Lutheran Day Care v.
Snohomish Cy., 119 Wash.2d 91, 108, 829 P.2d 746 (1992), cert. denied, ____ U.S.
_____, 113 S.Ct. 1044, 122 L.Ed.2d 353 (1992).


                                         -22-
       The Restatement (Second) of Torts recognizes this notion:

               With respect to some government functions, the threat of individual
               liability would have a devasting [sic] effect, while the threat of
               governmental liability would not significantly impair performance.
       Restatement (Second) of Torts § 895D cmt. j, at 420 (1979).
               A fact and policy specific inquiry also suggests the rationale underlying the
       grant of qualified personal immunity to parole officers does not apply with equal
       force to the State. Parole officers supervising parolees are called upon to make
       difficult decisions under difficult circumstances. Taggart v. State, 118 Wash.2d 195,
       215, 822 P.2d 243 (1992). Given these conditions, the prospect of personal liability
       may reasonably be expected to have an unduly inhibiting effect on the performance
       of their professional duties.
               As was the case in Babcock v. State, 116 Wash.2d 596, 616-19, 809 P.2d 143
       (1991), the same cannot be said about state liability. On the contrary, maintaining
       the potential of state liability, as established in RCW 4.92, can be expected to have
       the salutary effect of providing the State an incentive to ensure that reasonable care
       is used in fashioning guidelines and procedures for the supervision of parolees.

Savage v. State, 127 Wash.2d 434, 444, 899 P.2d 1270, 1275-76 (Wash.1995).

        The Claims Commission, both in Commissioner Baker’s March 1, 2002 order and in the en
banc order of August 5, 2002 exhaustively construed Tennessee Code Annotated section 9-8-307
and the cases deemed applicable to such construction and reached the conclusion that the State was
not entitled to rely upon discretionary function immunity. The reasoning of the Commission is
impressive but we are content to sustain the position of the Claims Commission on the basis that the
statute is clear and unambiguous and needs no construction. Whether one refers to “qualified
immunity,” “discretionary function immunity,” “discretionary acts immunity,” or “good faith
immunity” is, in the context of this case, academic. None of these characterizations qualify as an
“absolute immunity” and only absolute immunities are available to the state under Tennessee Code
Annotated section 9-8-307(d).

        The State argues that even after it is determined that there is a dangerous condition, “then the
State must be able to use its discretion in making a decision whether there are funds and other
resources available to correct the dangerous condition.” In such situations, the argument goes, the
state has the discretion to decide that the correction is too expensive or that monetary considerations
require delay in correction until other projects are completed or even that a warning is not feasible.
“The State must have the discretion to make these decisions without fear of law suits challenging
the decisions made.”

       This position is inconsistent with Tenn. Code Ann. § 9-8-307(a)(1)(I) and (J). It is also
inconsistent with the Claims Commission Act provision that the State’s liability in tort “shall be
based on the traditional concepts of duty and the reasonably prudent person’s standard of care.”


                                                 -23-
Tenn. Code Ann. § 9-8-307(c). Under generally-applicable principles of tort law, all persons have
a duty to use reasonable care under the circumstances to refrain from conduct that will foreseeably
cause injury to others. Doe v. Linder Constru. Co., Inc., 845 S.W.2d 173, 178 (Tenn. 1992). In
determining whether, in a particular situation, there is a duty to act responsibly so as to protect others
from unreasonable risks of harm, Tennessee has adopted an approach that balances the foreseeable
probability and severity of harm against the burden upon the defendant to engage in alternative
conduct that would have prevented the harm. Staples v. CBL & Associates, Inc., 13 S.W.3d 83, 89
(Tenn. 2000); McClung v. Delta Square Limited Partnership, 937 S.W.2d 891, 894-95 (Tenn. 1996);
McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995). In determining whether a risk is an
unreasonable one, the court must consider several factors, including

         The foreseeable probability of the harm or injury occurring; the possible magnitude
         of the potential harm or injury; the importance or social value of the activity engaged
         in by defendant; the usefulness of the conduct to defendant; the feasibility of
         alternative, safer conduct and the relative costs and burdens associated with that
         conduct; the relative usefulness of the safer conduct; and the relative safety of
         alternative conduct.

Staples, 15 S.W.3d at 89, quoting Coln v. City of Savannah, 966 S.W.2d 34, 39 (Tenn. 1998);
McCall v. Wilder, 913 S.W.2d at 153.

        Thus, under general tort law principles, the feasibility and costs associated with correcting
a dangerous condition or taking other steps to avoid injury because of that condition would be factors
relevant to a determination of duty, not a bar to recovery by an injured plaintiff.8 Our Supreme Court
has applied traditional tort theories to claims under the Claims Commission Act, pursuant to Tenn.
Code Ann. §9-8-307(c). See Stewart v. State, 33 S.W.3d 785, 793 (Tenn. 2000) (applying common
law principles of assumption of a duty where one is not legally imposed to a claim for negligent
control).

CONCLUSION

        The seed from which the problem developed in this case was planted in Cox v. State, when
after the State correctly conceded that it could not rely on discretionary function immunity under
Tennessee Code Annotated section 9-8-307(d) the Claims Commission applied the doctrine anyway.
When this Court in dicta approved the action of the Claims Commission the State changed its
position. Thereafter, in Waters and in Bolton and in the case at bar, the State asserted discretionary
function immunity based upon Cox. Continued reliance on the dicta in Cox simply compounds the
problem.




         8
           The Savage court sidestepped this question by affirming the trial court judgment on the basis that the State
had tendered no proof as to such considerations or as to the economic resources available to the state.

                                                         -24-
         Subject to monetary caps and limitations to actual damages and court costs, the Claims
Commission Act was a sweeping abrogation of sovereign immunity. Hembree v. State, 925 S.W.2d
513 (Tenn.1996). It was the same broad waiver of sovereign immunity as was effected in Savage,
899 P.2d 1270 (Wash.1995). By way of exception to this broad abrogation, the legislature gave back
to the state the right to plead absolute immunity. The legislature specifically prohibited the state
from relying on “good faith” immunity. The controlling point is that no matter how one may define
“discretionary function” immunity it cannot be defined as an absolute immunity, and since the statute
restricts the state to the defense of absolute immunity only, it necessarily follows that the State
simply cannot rely on “discretionary function” immunity.

       The Claims Commission has already held that the question of notice of dangerous conditions
remains for trial. It has further already granted summary judgment to the State under Tennessee
Code Annotated section 28-3-202 for all claims predicated upon acts or omission occurring more
than four years before the respective dates of claims in these cases. As these issues were not
appealed, they are not currently before the Court. Foreseeability remains an issue of fact to be tried.

        On the sole issue before this Court which is the availability of “discretionary function”
immunity to the State under the Tennessee Claims Commission Act, we affirm the action of the
Claims Commission for reasons stated herein and remand these cases for trial on their respective
merits “based upon the traditional tort concepts of duty and a reasonably prudent persons’ standard
of care.” Tenn.Code Ann. § 9-8-307(d).

       Costs of the cause are assessed to the State of Tennessee.



                                                        ____________________________________
                                                        WILLIAM B. CAIN, JUDGE




                                                 -25-
