                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                  February 12, 2003 Session

                   JOHN S. DOE v. RANDALL E. PEDIGO, ET AL.

                        Appeal from the Circuit Court for Knox County
                                         No. 2-380-95

                                      FILED JUNE 30, 2003

                                 No. E2002-01311-COA-R3-CV




CHARLES D. SUSANO, JR., J., concurring in part and dissenting in part.


        While I agree with the bulk of the majority opinion, I write separately to express my
disagreement with the majority’s judgment that there is a genuine issue of material fact as to whether
Dr. Pedigo, “at the time of [the] occurrence [at his condominium]” was “acting by virtue of or under
color of the office [of deputy sheriff].” Tenn. Code Ann. § 8-8-302 (2002).

        The only material fact in dispute pertaining to the Tenn. Code Ann. § 8-8-302 analysis is
whether Dr. Pedigo was a deputy sheriff at the time of the occurrence at his condominium. For the
purpose of the following discussion, I will assume that he was. Obviously, this assumption is
beneficial to the plaintiff’s theory of the case. However, even assuming the best possible scenario
for the plaintiff on this issue, I conclude that the undisputed facts and this assumption can lead to
only one reasonable conclusion, i.e., what happened at Dr. Pedigo’s condominium was purely
personal in nature and totally unrelated to his official duties.

        When Dr. Pedigo and the plaintiff went to the doctor’s condominium, they were not going
there on any official business related to Dr. Pedigo’s assumed status as a deputy sheriff. They were
going there to “pass the time” as they awaited a possible call to respond to a crime scene. While they
were there, Dr. Pedigo suggested that he inject the plaintiff with a Hepatitis B vaccine and the
plaintiff agreed. It is obvious beyond any doubt that the plaintiff agreed to the injection not because
Dr. Pedigo was a deputy sheriff but rather because he was a medical doctor. Again, I find no nexus
between what happened at the condominium and Dr. Pedigo’s assumed position as a deputy sheriff.

       In my judgment, the opinion of this Court in the case of J.W. ex rel. Watts v. Maury County,
No. M2001-02768-COA-R3-CV, 2003 WL 1018138 (Tenn. Ct. App. M.S., filed March 11, 2003),
perm. app. filed May 12, 2003, and the instant case can be distinguished on the facts of the two
cases. In J.W., it is arguable that the child went to the defendant’s home so the defendant could
counsel a troubled youth at that house as a part of the defendant’s duties as a school resource officer.
In the instant case, the plaintiff went to Dr. Pedigo’s condominium to relax while the two of them
awaited a possible call to duty for Dr. Pedigo. The former situation involved the defendant’s official
duties; the latter does not.

        With respect to the language in the opinion in J.W. – “or takes advantage of such actual or
purported capacity” – upon which the majority relies, this language must be read in the context of
the facts of that case. Nat’l Life & Accident Ins. Co. v. Eddings, 188 Tenn. 512, 523, 221 S.W.2d
695, 699 (1949).

        I would affirm the trial court’s judgment in its entirety.




                                                        _______________________________
                                                        CHARLES D. SUSANO, JR., JUDGE




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