                                                                                       07/27/2017
               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                           Assigned on Briefs July 3, 2017

                WILLIAM COOK, II V. STATE OF TENNESSEE

                  Appeal from the Tennessee Claims Commission
              No. T20120644 James A. Hamilton, III, Commissioner


                           No. W2016-01914-COA-R3-CV


The claimant initiated this action by filing a complaint in the Tennessee Claims
Commission to recover damages for personal injuries from the State of Tennessee
resulting from an attack by another inmate at West Tennessee State Penitentiary.
Following discovery, the State filed a motion for summary judgment on the ground that
the undisputed material facts established the assault was not reasonably foreseeable;
therefore, the claimant could not prove proximate cause, which is an essential element of
a negligence claim. The trial court agreed and summarily dismissed the complaint. This
appeal followed. We affirm.

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

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which THOMAS
R. FRIERSON, II, and BRANDON O. GIBSON, JJ., joined.

Matthew C. Edwards, Bolivar, Tennessee, for the appellant, William Cook, II.

Herbert H. Slatery III, Attorney General and Reporter, Andree Blumstein, Solicitor
General, and Pamela S. Lorch, Senior Counsel, Office of the Attorney General, Nashville
Tennessee, for the appellee, State of Tennessee.

                                       OPINION

        Claimant, William Cook, II, (“Cook”) was attacked and stabbed by his cellmate,
Chad Morrison (“Morrison”), on December 6, 2010, while both were serving as inmates
at West Tennessee State Penitentiary (“WTSP”) in Henning, Tennessee. Morrison used a
“shank,” or a handmade knife, in the assault and Cook sustained severe injuries as a
result.
       In Cook’s complaint filed with the Tennessee Claims Commission on March 23,
2012, he contended the State was liable because Morrison’s attack on him was reasonably
foreseeable. Cook alleged that the State was on notice of and aware of Morrison’s
dangerous propensity through:

      various incidents such as previously making a “shank” or knife in the
      prison shop and trying to conceal it and previously reported dangerous
      activity such as threatening a correctional officer. In spite of the fact of
      knowing Morrison’s dangerous propensity and previously reported
      dangerous activity, Defendant took no action to guard Claimant against or
      protect Claimant from Morrison nor did Defendant alert or notify Claimant
      of Morrison’s dangerous propensity or Morrison’s dangerous activity….

       The State answered the complaint by denying all assertions that the assault was
foreseeable and that prison authorities had any reason to anticipate Morrison’s attack on
Cook. The parties proceeded with discovery and ascertained the relevant facts
summarized below.

       Cook was remanded to the custody of the Tennessee Department of Correction
(TDOC) following his fourth DUI conviction, and he was transferred to WTSP in
October 2010 to serve his sentence. After completing the security assessment process,
WTSP determined that Cook required minimum security, which is the lowest level of
security.

       Morrison had been incarcerated at WTSP since March 24, 2010. Prior to his
transfer to WTSP, Morrison was housed at the Sullivan County Jail. During his
confinement there, Sullivan County Jail officials conducted a security assessment for
Morrison and found no record of previously resolved or pending violent charges, nor did
they consider or suspect that Morrison belonged to a security threat group. After
undergoing the classification process at WTSP, WTSP determined that Morrison required
minimum security.

      Cook and Morrison became cellmates at WTSP on October 21 or October 22,
2010. Morrison assaulted Cook on December 6, 2010. Prior to the assault, Cook and
Morrison had a good relationship, and Cook admitted that Morrison never threatened
him.

       After taking discovery, the State filed its motion for summary judgment
contending the assault was not foreseeable. More specifically, the State insisted that Cook
could not establish the essential elements of negligence, particularly proximate cause;
therefore, the State was entitled to summary judgment as a matter of law. The State
supported its motion with a statement of undisputed facts, which included the following:


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          1. Cook’s cellmate at WTSP, Morrison, was transferred from the local
              jail to WTSP on March 24, 2010.
          2. In the Classification Custody Assessment Form, Morrison scored
              minimum security.
          3. Minimum security is the lowest level of security.
          4. Morrison had no history of institutional violence and no prior
              assaultive-offense history.
          5. The local jail, Sullivan County Jail, also did an assessment on March
              24, 2010 and noted that Morrison had no record of any previously
              resolved or pending violent charges and was not a suspected or a
              confirmed member of a security threat group.
          6. Cook became Morrison’s cellmate on October 21 or October 22,
              2010.
          7. Prior to December 6, 2010, Cook had no problems with Morrison
              and reported no problems to the prison authorities.
          8. Inmates Cook and Morrison never fought.
          9. Cook did not feel at all threatened by Morrison.
          10. On December 6, 2010, inmate Morrison stabbed Cook.
          11. Morrison claimed he stabbed Cook because Cook tried to rape him.

        Cook filed a response to the motion for summary judgment supported by a
statement of disputed material facts. Cook contended that the State had ample notice that
Morrison posed a threat to Cook and to all inmates and staff. He based this assertion on
the fact that an instructor at the prison caught Morrison taking a piece of steel from the
prison school. He also contended that a prison staff member found Morrison in
possession of a knife. As a consequence of the theft from the prison school, WTSP
removed Morrison from the school program, identified him as a potential security threat,
and issued a non-disciplinary job drop. Prison officials did not issue a disciplinary report
for the knife incident.

      In response, the State insisted that Cook relied on “irrelevant and immaterial” facts
and contended that the incidents were “too remote and too generalized” to create a
genuine issue of material fact.

       The Commissioner granted the State’s motion for summary judgment. In its
ruling, the Commissioner found that Cook admitted to the following in his response to
the State’s statement of undisputed facts:

   1. Cook became Morrison’s cellmate on October 21 or 22, 2010.
   2. Prior to December 6, 2010, Cook had no problems with Morrison and
      reported no problems to the prison authorities.
   3. Inmates Cook and Morrison never fought.
   4. Cook did not feel at all threatened by Morrison.

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The Commissioner noted that when questioned during his deposition as to whether
Morrison posed a threat to him, Cook testified as follows:

              Q. So you didn’t feel that Mr. Morrison was a threat to you.
              A. None whatsoever.

       The Commissioner found:

       It is undisputed that during the time Claimant and Chad Morrison were
       cellmates William Cook never complained to correction officials at WTSP
       concerning Chad Morrison; Mr. Cook never told correction officials Mr.
       Morrison posed threat to him; Mr. Cook never requested that he be
       transferred away from Mr. Morrison and Mr. Morrison had never exhibited
       violent or threatening behavior toward Claimant. Prior to December 6,
       2010, Claimant thought Mr. Morrison posed no threat to him — “none
       whatsoever.”

Having determined that the material facts were not in dispute and that Cook could not
establish the essential element of proximate cause, the Commissioner granted the State’s
motion for summary judgment. This appeal followed.

                                          ISSUE

        Cook contends the Claims Commissioner erred by granting summary judgment
because material facts are in dispute concerning whether the State knew of or had reason
to anticipate an attack by Morrison and did not use reasonable care to prevent it.

                                 STANDARD OF REVIEW

       This court reviews the granting of a motion for summary judgment de novo
without a presumption of correctness. Rye v. Women’s Care Ctr. of Memphis, MPLLC,
477 S.W.3d 235, 250 (Tenn. 2015) (citing Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.
1997)). Accordingly, this court must make a fresh determination of whether the
requirements of Tenn. R. Civ. P. 56 have been satisfied. Id.; Hunter v. Brown, 955
S.W.2d 49, 50-51 (Tenn. 1997). In so doing, we consider the evidence in the light most
favorable to the non-moving party and draw all reasonable inferences in that party’s
favor. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002).

        Summary judgment should be granted when “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Tenn. R. Civ. P. 56.04. When the party moving for

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summary judgment does not bear the burden of proof at trial, it may satisfy its burden of
production “either (1) by affirmatively negating an essential element of the nonmoving
party’s claim or (2) by demonstrating that the nonmoving party’s evidence at the
summary judgment stage is insufficient to establish the nonmoving party’s claim or
defense.” Rye, 477 S.W.3d at 264 (emphasis in original).

       When a motion for summary judgment is made and supported as provided in
Tenn. R. Civ. P. 56, the nonmoving party may not rest on the allegations or denials in its
pleadings. Id. Instead, the nonmoving party must respond with specific facts showing that
there is a genuine issue for trial. Id. A fact is material “if it must be decided in order to
resolve the substantive claim or defense at which the motion is directed.” Byrd v. Hall,
847 S.W.2d 208, 215 (Tenn. 1993). A “genuine issue” exists if “a reasonable jury could
legitimately resolve that fact in favor of one side or the other.” Id.

        When a defendant moves for summary judgment based on an affirmative defense,
the defendant must establish the elements of the affirmative defense before the burden
shifts to the nonmovant. See Carr v. Borchers, 815 S.W.2d 528, 532 (Tenn. Ct. App.
1991). If the moving party makes a properly-supported motion, the burden shifts to the
nonmoving party to “set forth specific facts at the summary judgment stage showing that
there is a genuine issue for trial.” Rye, 477 S.W.3d at 265. A disputed fact is “material” if
it “must be decided in order to resolve the claim or defense at which the motion is
directed.” Byrd, 847 S.W.2d at 215. A “genuine issue” exists if “a reasonable jury could
legitimately resolve that fact in favor of one side or the other.” Id.

                                         ANALYSIS

       The issue of the liability of the State, a county, or a municipality arising from
inmate-on-inmate assaults in penal institutions is not new to this state. Harvey v. Dickson
Cty., No. M2007-01793-COA-R3-CV, 2008 WL 2165958, at *2 (Tenn. Ct. App. May 21,
2008). Our courts have repeatedly noted that penal institutions are not insurers of an
inmate’s safety. Id. (citing Gillespie v. Metropolitan Government, No. 01A01-9109-CV-
00317, 1992 WL 9441, at *1 (Tenn. Ct. App. Jan. 24, 1992)). The general rule is that the
penal institutions merely have a duty to use reasonable and ordinary care to prevent
foreseeable attacks on inmates by other inmates. Id. A penal institution breaches its duty
of care when “the institution’s authorities knew of or had reason to anticipate an attack
and did not use reasonable care to prevent it.” King v. Anderson County, 419 S.W.3d 232,
248 (Tenn. 2013) (quoting Gillespie, 1992 WL 9441, at *1).

       Cook alleges that the authorities at WTSP acted negligently in the supervision of
Morrison due to the custodial classification of Morrison as a minimum security risk. On
appeal, the primary focus of both parties has been on the issue of foreseeability in the
context of the proximate cause test. Accordingly, we will address the same factor.


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       Proximate cause focuses upon “whether the policy of the law will extend
responsibility for that negligent conduct to the consequences that have occurred.” Id. at
246 (quoting Kilpatrick v. Bryant, 868 S.W.2d 594, 598 (Tenn. 1993)). “Proximate cause
puts a limit on the causal chain, such that, even though the plaintiff’s injury would not
have happened but for the defendants’ breach, defendants will not be held liable for
injuries that were not substantially caused by their conduct or were not reasonably
foreseeable results of their conduct.” Id. at 246-47 (quoting Hale v. Ostrow, 166 S.W.3d
713, 719 (Tenn. 2005)).

       Tennessee courts use a three-pronged test to assess proximate cause:

       1) the tortfeasor’s conduct must have been a “substantial factor” in bringing
       about the harm being complained of; and 2) there is no rule or policy that
       should relieve the wrongdoer from liability because of the manner in which
       the negligence has resulted in the harm; and 3) the harm giving rise to the
       action could have reasonably been foreseen or anticipated by a person of
       ordinary intelligence and prudence.

McClenahan v. Cooley, 806 S.W.2d 767, 775 (Tenn. 1991) (emphasis added).

        The third element in the proximate cause analysis is foreseeability, and
here, the primary focus of the parties has been the issue of foreseeability.

       Foreseeability is [a] crucial factor in the proximate cause test because, if the
       injury that gives rise to a negligence case could not have been reasonably
       foreseen, there is no proximate cause and thus no liability despite the
       existence of negligent conduct. “A risk is foreseeable if a reasonable person
       could foresee the probability of its occurrence or if the person was on notice
       that the likelihood of danger to the party to whom is owed a duty is
       probable.” However, “[t]he plaintiff must show that the injury was a
       reasonably foreseeable probability, not just a remote possibility.”
       Foreseeability must be determined as of the time of the acts or omissions
       claimed to be negligent.

King, 419 S.W.3d at 248 (internal citations omitted).

        As noted earlier, in the context of an inmate-on-inmate assault, an assault is
foreseeable only if “the institution’s authorities knew of or had reason to anticipate an
attack and did not use reasonable care to prevent it.” Id. (citing Gillespie, 1992 WL 9441,
at *1).

       [T]o establish the proximate causation necessary to prevail in a negligence
       action against a penal institution for an inmate-on-inmate assault, the

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       institution must have “had prior notice of an attack.” Id. See e.g. Harvey,
       2008 WL 2165958, at *1; Kinningham, 2001 WL 1089501, at *2; Hanks,
       1999 WL 454459, at *3; see also Saunders, 446 A.2d at 751 (holding that
       the prior notice rule is, in effect, a more specific application of the general
       rule of foreseeability, requiring, for example, knowledge that an inmate’s
       dangerous propensities were likely to lead to an attack on a specific victim
       or group of victims).

       For purposes of assessing a penal institution’s liability, prior notice can be
       actual or constructive. Such notice may arise from knowledge of specific
       threats to a specific inmate or group of inmates from another individual or
       group of individuals, or an inmate’s prior institutional history of violent—
       including self-destructive or suicidal—behavior, or any other specific
       information or conditions that would provide prison officials with actual or
       constructive notice of foreseeable harm to specific individuals or groups of
       persons.

Id. at 248-49.

       Tennessee courts have consistently held that where a governmental entity had no
prior notice of an inmate-on-inmate attack, it cannot be liable for an assault. Id. at 249.
Here, there is no evidence that the State or any authorities at WTSP knew of or had
reason to anticipate an attack by Morrison, because he had no record of institutional
violence and had been classified for custodial purposes as a minimum security risk. It is
also undisputed that Cook spent more than six weeks in the same cell with Morrison
without incident, conflict, or concern and Cook never complained to prison authorities
that he felt threatened by Morrison in any fashion. Furthermore, in his deposition Cook
admitted that he never felt threatened by Morrison. As Cook succinctly explained it,
Morrison posed no threat to him, “none whatsoever.”

       The foregoing notwithstanding, although Cook admits that while he had no reason
to anticipate an attack on him by Morrison, he contends the State did. Cook relies on the
fact that Morrison was caught attempting to remove a piece of steel from the prison
school and that Morrison was previously caught in possession of a knife. The State
argues that this occurrence is not relevant because Morrison was caught, and thus, he was
not able to remove the piece of steel from the school. The State also argues that there was
no evidence that Morrison intended to make a weapon with it. As for having possessed a
knife at some point in his penal career, the State finds it significant that there is no proof
when that occurred, noting it may have been a long time ago. Moreover, the State
remarks that the knife was also confiscated, and there was no evidence that Morrison ever
used any weapon to assault an inmate or a prison guard prior to the assault on December
6, 2010. In summation, the State insists this evidence is “too remote and too generalized”
to create a genuine issue of material fact.

                                            -7-
       A finding that the assault was a reasonably foreseeable probability is the standard
for assessing proximate cause, which is necessary to impose liability in a negligence case.
Id. at 250. Cook failed to provide evidence to support a finding of foreseeability or to
even create a dispute of fact concerning the issue of foreseeability. As a consequence, he
cannot prove the essential element of proximate cause.

     For the foregoing reasons, we affirm the Claims Commission’s decision to grant
summary judgment in favor of the State.

                                    IN CONCLUSION

       The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against the appellant, William Cook, II.



                                                  ________________________________
                                                  FRANK G. CLEMENT JR., P.J., M.S.




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