                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                    August 15, 2005 Session

RICKEY W. PENDLETON v. THE METROPOLITAN GOVERNMENT OF
            NASHVILLE AND DAVIDSON COUNTY

                  Direct Appeal from the Circuit Court for Davidson County
                          No. 02C-3205 Thomas Brothers, Judge



                   No. M2004-01910-COA-R3-CV - Filed September 1, 2005


Plaintiff seeks to recover from the Metropolitan Government of Nashville and Davidson County for
injuries received when he was arrested by officers of the Nashville Metropolitan Police.
In his complaint, Plaintiff asserts that the actions of the officers constituted an assault and battery,
and further argues that the government is vicariously liable through respondeat superior. The trial
court granted summary judgment in favor of the government after finding that a stand alone
allegation of respondeat superior was insufficient to sustain a claim under the Tennessee
Governmental Tort Liability Act for damages resulting from intentional torts. Rather, the court held
that Plaintiff needed to plead a separate and distinct claim of negligence on the part of the
Metropolitan Government. Plaintiff has appealed the ruling of the trial court. Because we find that
the trial court correctly found that the GTLA requires a plaintiff to assert separate claims of
negligence against governmental entities in cases arising from intentional torts, we affirm.

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

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and ALAN E. HIGHERS, J., joined.

Phillip L. Davidson, Nashville, Tennessee, for the appellant, Rickey Pendleton.

Kevin C. Klein and J. Brooks Fox, Nashville, Tennessee, for the appellees, The Metropolitan
Government of Nashville and Davidson County.

                                              OPINION

                          Factual Background and Procedural History

       On November 18, 2001, Plaintiff Rickey Pendleton (“Pendleton”) visited an
acquaintance, Pamela Scott (“Scott”), at the Homestead Suites located on McGavock Pike in
Nashville, Tennessee. Upon arrival, Pendleton discovered Scott “going berserk” and tearing up
her hotel room. Pendleton suspected Scott of drug use and noticed syringes in the room. As a
result of Scott’s behavior, the hotel manager called the Nashville Metro Police and Sergeant
Swisher, Officer Christy, and Officer Henshaw (cumulatively referred to as “the officers”)
responded to the scene. When Ms. Scott ignored the police officers’ request that she come out of
her hotel room, the officers grabbed her by the arm and escorted her outside.

         Due to Scott’s resistance, the officers placed Scott face down on the ground and
attempted to handcuff her. Believing that the officers were using unnecessary force in Scott’s
arrest, Pendleton tried to intervene, but was instead escorted away by Sergeant Swisher. During
this encounter, Pendleton told Sergeant Swisher that he had a gun. In response, Swisher pushed
Pendleton into the wall and Pendleton fell to the ground, injuring his head. Pendleton also
claims that the officers hit him with nightsticks, stomped on his back, and kicked him in the ribs.
After handcuffing Pendleton, the officers found a loaded gun in his back pocket.

        Pendleton filed suit against the Metropolitan Government of Nashville and Davidson
County (“Metropolitan Government”) on November 8, 2002, asserting liability for assault and
battery under the Tennessee Governmental Tort Liability Act (“GTLA”). Pendleton later
amended his complaint to further allege liability against the Metropolitan Government because
his injuries were proximately caused by the negligent actions of the police officers, who acted
within the scope of their employment.1 None of Pendleton’s pleadings set forth any claim of
negligence against the Metropolitan Government.2

        On April 30, 2004, the Metropolitan Government filed a motion for summary judgment
arguing that Pendleton’s assault and battery claim failed under the GTLA because Pendleton
could not show that the Metropolitan Government acted negligently in failing to prevent the
alleged harm. In support of its motion, the Metropolitan Government provided affidavit proof
that the officers were extensively trained and had received no prior complaints for excessive
force. In response, Pendleton again failed to assert that the Metropolitan Government acted
negligently, but rather argued that the Metropolitan Government was vicariously liable pursuant
to the doctrine of respondeat superior. The trial court granted summary judgment for the
Metropolitan Government, holding that a specific claim of negligence must be asserted against a
municipality in order for a waiver of governmental immunity to occur under the GTLA.
Pendleton appeals from the trial court’s ruling raising the issue of whether, under the GTLA, the
Metropolitan Government can be held vicariously liable for the intentional actions of its


         1
          Although Pendleton later claimed that the officers acted negligently, he continued to only assert claims of
assault and battery against them. It is well settled in Tennessee that assault and battery constitute intentional torts, not
acts of negligence. See Limbaugh v. Coffee Medical Center, 59 S.W .3d 73, 84 (Tenn. 2001).

         2
           In his final Amended Complaint, Pendleton alleges that it was foreseeable on the part of the Metropolitan
Government that police officers in general could commit acts of assault and battery. However, Pendleton asserted no
facts showing that the Metropolitan Government had notice of any violent propensities on the part of the police officers
in this case.

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employees solely under the doctrine of respondeat superior. For the reasons contained herein, we
hold that Pendleton cannot proceed against the Metropolitan Government under a claim of
respondeat superior and affirm the trial court.

                                        Standard of Review

        Summary judgment is appropriate only when the moving party can demonstrate that there
are no disputed issues of material fact and that it is entitled to judgment as a matter of law. Tenn.
R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993). Specifically, the moving
party must affirmatively negate an essential element of the nonmoving party's claim or
conclusively establish an affirmative defense. McCarley v. West Quality Food Serv., 960 S.W.2d
585, 588 (Tenn.1998). When a party makes a properly supported motion for summary judgment,
the burden shifts to the nonmoving party to establish the existence of disputed material facts. Id.

        A mere assertion that the nonmoving party has no evidence does not suffice to entitle the
moving party to summary judgment. Id. Rather, in determining whether to award summary
judgment, the trial court must view the evidence in the light most favorable to the nonmoving
party and draw all reasonable inferences in that party's favor. Staples v. CBL & Assocs., 15
S.W.3d 83, 89 (Tenn. 2000). The court should award summary judgment only when a reasonable
person could reach only one conclusion based on the facts and the inferences drawn from those
facts. Id. Summary judgment is not appropriate if there is any doubt about whether a genuine
issue of material fact exists. McCarley, 960 S.W.2d at 588. We review an award of summary
judgment de novo, with no presumption of correctness afforded to the trial court. Guy v. Mut. of
Omaha Ins. Co., 79 S.W.3d 528, 534 (Tenn. 2002).

                                            GTLAClaim

        In 1973, the Tennessee General Assembly codified the rules of governmental immunity
by enacting the GTLA, which partially waived immunities previously afforded to the government
under common law. 1973 Tenn. Pub. Acts ch 345, codified at Tenn. Code Ann. § 29-20-101 et
seq. (2005). Section 29-20-205 of the GTLA removes governmental immunity “for injury
proximately caused by a negligent act or omission of any employee within the scope of his
employment.” However, § 29-20-205(2) of the Act, often referred to as the “intentional tort
exception,” specifically preserves governmental immunity for any claims arising from “false
imprisonment pursuant to a mittimus from a court, false arrest, malicious prosecution, intentional
trespass, abuse of process, libel, slander, deceit, interference with contract rights, infliction of
mental anguish, invasion of right of privacy, or civil rights.”

        As previously stated, the only issue raised on appeal is whether, in accordance with the
GTLA, a governmental entity may be held vicariously liable under respondeat superior for the
commission of an assault and battery by a governmental employee. Specifically, Pendleton
asserts that the trial court erred in holding that he needed to plead a separate and distinct claim of
negligence on the part of the Metropolitan Government in order to retain it as a defendant.


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Pendleton argues in his brief to this Court that the negligence requirement is almost impossible to
meet since even well selected, well supervised, well trained, well acting law enforcement officers
can, on occasion, use more force than is necessary when arresting a citizen.

         The Tennessee Supreme Court has previously addressed the issue of government liability
under the GTLA for assault and battery in Limbaugh v. Coffee Medical Center, 59 S.W.3d 73
(Tenn. 2001). The plaintiff in Limbaugh, on behalf of his elderly mother, filed suit under the
GTLA against the Coffee Medical Center, a state run nursing facility, to recover damages for
injuries his mother received after being physically assaulted by a nursing assistant. Id. at 76. At
trial, the court found that the medical center had prior knowledge of violent acts committed by
the nursing assistant, but nevertheless failed to take reasonable precautions to protect residents
and guests of the center. Id. at 77. In finding that the plaintiff could assert an assault and battery
claim against the medical center under the GTLA, the Supreme Court made two critical findings.
First, the court held that the “intentional tort exception,” enumerated in section 29-20-205(2)
does not immunize governmental entities from liability arising out of assault and battery claims
since such claims are “not specifically enumerated in the intentional tort exception.” Id. at 81.
Next, the court found a waiver of governmental immunity under Tenn. Code Ann. § 29-20-205
because the injuries suffered by the plaintiff’s mother were proximately caused by the Coffee
Medical Center’s negligence “in failing to take reasonable precautions to protect [her] from the
foreseeable risk that she would be assaulted by a staff member known to be physically
aggressive.” Id. at 76, 81.

         Later decisions applying the ruling in Limbaugh affirm that the GTLA does not allow
plaintiffs to hold governmental entities vicariously liable for intentional torts not exempted under
section 29-20-205(2), but rather requires a direct showing negligence on the part of the
governmental entity. In Baines v. Wilson Co, 86 S.W.3d 575 (Tenn. Ct. App. 2002), the plaintiff,
Baines, filed a retaliatory discharge claim under the GTLA against Wilson County, Tennessee,
after a county employee, Hale, fired him for filing a workers’ compensation claim. Id. at 577. In
finding Wilson County immune from suit, this Court engaged in a similar analysis set forth in
Limbaugh and held that

       [r]etaliatory or wrongful discharge is not one of the intentional torts enumerated in
       Tenn. Code Ann. § 29-20-205(2). Thus, under Limbaugh, Wilson County...would
       not enjoy immunity for negligently allowing an employee...to intentionally cause
       Mr Baines’s injury. However, Mr. Baines made no claim that Wilson County was
       negligent in hiring, training, supervising, or retaining Mr. Hale. There were no
       allegations as to the foreseeability of Mr. Hale’s actions or any other of the
       elements required to be plead in a negligence cause of action. In other words,
       there was no claim of independent acts of negligence by the governmental entities
       or their employees. Thus, Limbaugh does not save Mr. Baines’s action against the
       governmental entities.

Baines, 86 S.W.3d at 581 (emphasis added).


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        The case at bar is analogous to that in Baines because, like the Baines plaintiff, Pendleton
has also failed to assert a separate and distinct claim of negligence against the Metropolitan
Government. Despite this, Pendleton nevertheless asserts that this Court should find his claim
against the Metropolitan Government actionable under respondeat superior. We disagree. The
GTLA is a statutory abrogation of the common law and, as a result, this Court must strictly
interpret its provisions. Limbaugh, 59 S.W.3d at 83. As previously construed by the Tennessee
Supreme Court in Limbaugh and later affirmed by this Court in Baines, the GTLA clearly
requires a showing of negligence on the part of a governmental entity before it can be held liable
for intentional torts committed by its employees. Limbaugh, 59 S.W.3d at 83; Baines, 86
S.W.3d at 581. Therefore, since Pendleton failed to show any act of negligence on the part of the
Metropolitan Government, we find no waiver of governmental immunity under the GTLA and
thus hereby affirm the grant of summary judgment by the trial court. Costs of this appeal are
taxed to the Appellant, Rickey W. Pendleton, and his surety.



                                                      ___________________________________
                                                      DAVID R. FARMER, JUDGE




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