                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                   January 17, 2006 Session

       DEWAYNE EDWARD HOLLOWAY v. STATE OF TENNESSEE

                  A Direct Appeal from the Tennessee Claims Commision
          No. 20401895    The Honorable Nancy C. Miller-Herron, Commissioner



                   No. W2005-01520-COA-R3-CV - Filed February 3, 2006


       This is a claim filed against the State by a minor-decedent’s father for the wrongful death of
the minor-decedent based on T.C.A. 9-8-307 (a)(1)(E) (Negligent Care, Custody and Control of
Person). Claims Commissioner found that the State did not have care, custody and control of the
minor child and, therefore, the Claims Commission is without jurisdiction to consider the claim.
Father appeals. We affirm.


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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and HOLLY M. KIRBY , J., joined.

Irvin M. Salky of Memphis for Appellant, Dewayne Edward Holloway

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General
for Appellee, State of Tennessee

                                            OPINION

       On June 16, 2004, DeWayne Edward Holloway (“Appellant”) filed a claim with the Division
of Claims Administration against the State of Tennessee (“State” or “Appellee”). Subsequently, the
Division of Claims transferred the claim to the Tennessee Claims Commission (“Claims
Commission”), pursuant to T.C.A. § 9-8-402 (c). The claim, as originally filed, states:

               Dewayne Edward Holloway’s son Dewayne Roreco Holloway was
               physically abused by his mother, Lisa Marie Butler, on or about April
               5, 2003. However, the Dept. of Children’s Services failed to properly
               investigate this incident or take appropriate action to prevent the
               mother from abusing the child again on June 17, 2003, causing his
               death.
        After the claim was transferred to the Claims Commission, a Complaint was filed, which
states in pertinent part:

                    2. Plaintiff is a citizen and resident of Memphis, Shelby
              County, Tennessee and is the natural father and next of kin to
              Dewayne Roreco Holloway, a deceased minor child.

                     3. At all times relevant to this cause of action, the deceased
              minor child Dewayne Roreco Holloway, was a resident citizen of
              Memphis, Shelby County, Tennessee.

                     4. The defendant State of Tennessee Department of
              Children’s Services is an official agency of the State of Tennessee,
              charged with the responsibility and duty to protect the safety and
              welfare of the children of Tennessee, with its principal office located
              in Nashville, Tennessee.

              5. On or about April 5, 2003, plaintiff’s minor son Dewayne Roreco
              Holloway was taken to Methodist Lebonheur Children’s Medical
              Center (“Lebonheur”) located at 50 N. Dunlap St., Memphis,
              Tennessee by his mother Lisa Marie Butler for medical treatment for
              the chief complaint of fever. Plaintiff would show that, upon
              examination of the minor by Lebonheur’s medical personnel,
              including but not limited to nurses and doctors, it became known and
              charted that the minor had suffered severe and traumatic physical
              injuries very recently to his head.

                     6. Subsequent to this visit at Lebonheur, the minor child’s
              mother presented him again for medical treatment on or about April
              10, 2003; and he was diagnosed and treated for left forearm fracture.

                     7. Subsequently, on June 17, 2003, the minor child was again
              brought to Lebonheur by his mother; and he was pronounced dead
              from blunt trauma to the head.

                      8. Upon being notified of the injuries and circumstances of
              the child Dewayne Roreco Holloway by one or more of his relatives,
              the defendant State of Tennessee Department of Children’s Services,
              through its employees and personnel, had a duty to conduct a
              complete and thorough investigation into those injuries and
              circumstances.




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                       9. Plaintiff alleges that had DCS conducted a proper
               investigation into the child’s welfare, it would have concluded that
               the child had been neglected and/or abused by his mother Lisa Marie
               Butler and/or others and would have further concluded that effective
               supervision or a change in custody or entry into foster care was
               necessary for the protection of the child from further abuse or neglect.

                       10. As a result of DCS’s failure to properly investigate this
               matter and to take appropriate action to prevent further abuse or
               neglect, Dewayne Roreco Holloway sustained further severe injuries
               which resulted in his death.

                       11. As a direct and proximate result of the negligent conduct
               and omissions of defendant State of Tennessee Department of
               Children’s Services, Dewayne Roreco Holloway suffered further
               severe injuries, physical pain, and mental suffering for the period of
               time from the date DCS was notified of the child’s injuries and
               circumstances until his death.

                       12. As a direct and proximate result of the negligent conduct
               of defendant State of Tennessee Department of Children’s Services,
               Dewayne Roreco Holloway suffered loss of earning capacity, loss of
               time, and the pecuniary value of his life.
                       13. As a direct and proximate result of the negligence of
               defendant State of Tennessee Department of Children’s Services,
               Claimant Dewayne Edward Holloway has been deprived of his son’s
               companionship, care, support, and the pecuniary value of his son’s
               life.

        The State filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Tenn.
R. Civ. P. 12.02 (1). On December 21, 2004, the Commissioner entered an order granting in part
the State’s motion to dismiss pertaining to the Mr. Holloway’s allegation that, if a proper
investigation of the child’s injury had been made, then the child would have been removed from the
home, and his death would not have ensued. The court considered this claim, pursuant to T.C.A. §
9-8-307 (a)(1)(N), which provides:

               9-8-307. Jurisdiction - Claims - Waiver of actions - Standard for
               tort liability - Damages - Immunities - Definitions - Transfer of
               claims.

                (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


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               defined in § 8-42-101(3), falling within one (1) or more of the
               following categories:

                       *                        *                        *

               (N) Negligent deprivation of statutory rights created under Tennessee
               law, except for actions arising out of claims over which the civil
               service commission has jurisdiction. The claimant must prove under
               this subdivision (a)(1)(N) that the general assembly expressly
               conferred a private right of action in favor of the claimant against the
               state for the state's violation of the particular statute's provisions; . .
               .

        Mr. Holloway argued that the State has a statutory duty to conduct a proper investigation and
was negligent in the fulfillment of that duty. The Commissioner found that, even if there was a duty,
she could not decide the law because there was no private right of action, and the claimant had not
properly stated a claim for relief. The court’s ruling in this regard was not presented as an issue on
this appeal.

        On May 24, 2005, the Commissioner entered an order of dismissal as to Appellant’s
remaining claim on the jurisdiction of the Claims Commission pursuant to T.C.A. § 9-8-307
(a)(1)(E). The Commissioner perceived that Mr. Holloway was asserting that the State’s liability
rests with its failure to decide whether to take care, custody and control of the deceased minor in
order to protect him from further harm. The Commissioner stated that there was no showing or
allegation that there was negligence by State employees while the minor decedent was in the care,
custody and control of the State.

       Claimant appeals and presents one issue for review:

                       Whether, as a matter of law and fact, the negligent conduct
               and omissions by the State of Tennessee’s Department of Children’s
               Services (“DCS”) in regard to appellant’s deceased child established
               subject matter jurisdiction before the Tennessee Claims Commission
               pursuant to Tennessee Code Annotated Section 9-8-307(a)(1)(E),
               “negligent care, custody and control of persons.”

        “Subject matter jurisdiction involves the nature of the cause of action and the relief sought
and can only be conferred on a court by a constitutional or a legislative act.” Northland Ins. Co. v.
State, 33 S.W. 2d 727, 729 (Tenn. 2000). There is no dispute as to the facts, and a determination
of whether subject matter jurisdiction exists is a question of law for the court. The standard of
review is de novo without a presumption of correctness. Northland at 729.




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         Tenn. Const. art. I, § 17 provides, in pertinent part, that “[s]uits may be brought against the
state in such a manner and in such courts as the legislature may by law direct.” It is well settled that
statutes passed by the Legislation, under the authority of article 1, section 17 must be strictly
construed, to wit:
                The courts of this state have traditionally held that any statute
                granting jurisdiction to hear a claim against the state must be strictly
                construed, as any such statute is in derogation of the common law
                rule of sovereign immunity. See, e.g., Norman v. Tennessee State
                Bd. of Claims, 533 S.W.2d 719, 722 (Tenn.1975) ("We further
                recognize that the statutory provisions governing the Board of Claims
                have been strictly construed, in view of the fact that they do represent
                an encroachment upon the sovereign immunity and upon the assets of
                the State."); State ex rel. Allen v. Cook, 171 Tenn. 605, 609, 106
                S.W.2d 858, 860 (1937) ("Statutes passed by the Legislature, under
                the authority of article 1, section 17, of the Constitution, permitting
                suits against the state, being in        derogation of the sovereign's
                exemption from suits, must be strictly construed.").

Stewart v. State, 33 S.W.3d 785, 790-91 (Tenn. 2000).

        The jurisdiction granted under the statutes that permit suits against the state, being in
derogation of the state’s inherent exemption from suit, cannot be enlarged by implication. Beare Co.
v. Olsen, 711 S.W.2d 603 (Tenn. 1986) (citing Hill v. Beeler, 199 Tenn. 325, 286 S.W.2d 868
(1956).

       Appellant argues that the Court should give due deference to the admonition of the legislature
in T.C.A. § 9-8-307 (a)(3): “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.” We have
no argument with the Appellant’s position. However, as our Supreme Court has stated in Stewart,
supra:

                If the legislature intends that its statutes waiving sovereign immunity
                are to “be liberally construed,” then the courts should generally defer
                to this expressed intention in cases where the statutory language
                legitimately admits of various interpretations. 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 AAA we are not privileged to create such a right under the guise


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               of a liberal interpretation of it.” Hamby v. McDaniel, 559 S.W.2d
               774, 777 (Tenn.1977).

Stewart, 33 S.W.3d at 791.
        In a case closely analogous to the case at bar, Draper v. State, No. E2002-02722-COA-R3-
CV, 2003 WL 22092544 (Tenn. Ct. App. Sept. 4, 2003), plaintiff-parent of deceased child filed a
claim against the Tennessee Department of Children’s Services and an individual, and the Claims
Commissioner found there was a lack of subject matter jurisdiction. The “plaintiff contends that the
Commission had jurisdiction pursuant to T.C.A. § 9-8-307 (a)(1)(E), which states that the
Commission has exclusive jurisdiction to determine a claim against the State based on the acts or
omissions of a State employee for the ‘negligent care, custody and control of persons.’” Draper at
*2. In Draper, as in the case at bar, there was no proof nor allegation that the State had taken the
child into its custody, care and control. The substance of the complaint was that the State should
have done so. This Court not only noted that there was not a grant of proper right of action for the
State’s failure to remove, but also found that the statute does not confer jurisdiction under T.C.A.
§ 9-8-307 (a)(1)(E) when the child was not taken into custody by the State.

        We agree with the Commissioner in the instant case that there is neither allegation nor proof
that the deceased child in this case was ever in the care, custody and control of the State. To the
contrary, Appellant’s action is premised on the failure of the State to take care, custody and control
of the minor decedent.

       Accordingly, the judgment of the Commissioner is affirmed. Costs of this appeal are
assessed to the Appellant, Dewayne Edward Holloway, and his surety.




                                               __________________________________________
                                               W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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