                                                                                        03/05/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                         Assigned on Briefs February 1, 2019

                 JANET C. FLEMING v. CITY OF MEMPHIS

                  Appeal from the Circuit Court for Shelby County
                  No. CT-004846-10    Robert Samual Weiss, Judge


                            No. W2018-00984-COA-R3-CV


This appeal concerns whether the public duty doctrine, which immunizes public
employees and governmental entities from liability when their duty is owed to the general
public rather than any particular individual, survived the 1973 enactment of the
Governmental Tort Liability Act (“The GTLA”). While walking in Memphis, Janet C.
Fleming (“Plaintiff”) was bitten by a pit bull. Plaintiff sued the City of Memphis
(“Defendant”) in the Circuit Court for Shelby County (“the Trial Court”) alleging that
Defendant knew of the dog’s violent tendencies from prior incidents and should have
taken stronger preventative action. Defendant filed a motion for summary judgment
asserting the public duty doctrine. The Trial Court granted the motion. Plaintiff appeals,
arguing that the GTLA supersedes the public duty doctrine despite the fact that our
Supreme Court has held otherwise in a never-overturned opinion. Constrained to adhere
to our Supreme Court’s binding precedent, we hold that the public duty doctrine was not
superseded by the GTLA. We hold further that while the GTLA does not provide
immunity to Defendant, the public duty doctrine does because Defendant’s duty was to
the public at large and Plaintiff has not established a special duty exception. We,
therefore, affirm the judgment of the Trial Court.

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

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and KENNY W. ARMSTRONG, J., joined.

Jason J. Yasinsky and David A. Siegel, Memphis, Tennessee, for the appellant, Janet C.
Fleming.

Bruce McMullen, City Attorney; and, Sharon L. Petty, Senior Assistant City Attorney,
for the appellee, the City of Memphis.
                                         OPINION

                                        Background

       On March 20, 2010, Plaintiff went for a walk along Raleigh-LaGrange Road in
Memphis not far from where she lived. A pit bull named Diesel broke loose from where
he was chained to a tree and attacked Plaintiff. Badly mauled, Plaintiff was rushed to the
hospital with injuries to her legs. Diesel subsequently was removed from his owner and
quarantined.

       In September 2010, Plaintiff sued Defendant in the Trial Court.1 Plaintiff alleged,
in part, the following: “As a direct and proximate result of the Defendants’ negligence,
gross negligence, willful, wanton and reckless behavior, Plaintiff, Janet Fleming, suffered
excruciating pain and suffering, personal injury, permanent scarring, fright and shock,
mental anguish and inability to enjoy the normal pleasures of life.” According to
Plaintiff’s complaint, Defendant “had actual prior notice of this dog’s vicious
propensities.” Defendant filed an answer asserting the public duty doctrine as a defense.

        In September 2015, Defendant filed a motion for summary judgment. In its
supporting memorandum, Defendant again asserted the public duty doctrine and stated
that “[i]f a duty to issue a citation existed, it existed to the ‘public at large’, not to Ms.
Fleming specifically.” In her response, Plaintiff argued that the GTLA superseded the
public duty doctrine and that, even if the public duty doctrine survived, it would not
apply in Plaintiff’s case because she was a foreseeable plaintiff.

       In December 2015, the Trial Court heard Defendant’s motion for summary
judgment. In January 2016, the Trial Court entered its order granting summary judgment
in favor of Defendant. The Trial Court found and held, in relevant part:

              1. The Plaintiff, Janet Fleming was attacked by a pit bull (Diesel)
       while taking her regular walk along Raleigh-Lagrange Rd on March 20,
       2010[.]
              2. The dog was owned by Stephen Thornton and in the care and
       under the control of Samuel Thornton.
              3[.] On June 12, 2007, a one month old pit bull named Diesel bit a
       child on the stomach while the child was playing with the dog. The owner
       of the dog at that time was Stacey Powers. After required quarantine,
       Diesel was returned to Ms Powers.

1
 Plaintiff also sued Samuel Thornton, Stephen Thornton, and Samuel Thornton d/b/a Thornton AC &
Heating, but later dismissed them voluntarily. Only Defendant remains.
                                              -2-
        4. [A.I.], age 14, was attacked and bitten on his right thigh by a pit
bull named Diesel after Defendant, Samuel Thornton let the dog off his
chain[.] The animal was quarantined at the Memphis Animal Shelter from
March 6, 2010 to March 17, 2010[.]
        5. Based upon the information received from police, the animal
control worker, David Johnson, did not believe there were grounds upon
which supported seeking a petition to declare the dog dangerous and
vicious under City ordinance[.]
        6. On March 20, 2010, according to police report, Diesel broke its
collar and attacked Ms. Fleming. Samuel Thornton was issued a citation by
animal control and the dog was taken to the Memphis Animal Shelter.

                                     ***

        8. The Tennessee Governmental Tort Liability Act (hereinafter,
“GTLA”), Tenn. Code Ann § 29-2-101 et. seq., removes that immunity for
injuries arising from certain types of acts by public officers and employees,
but retains it for others
        9. Tenn. Code Ann. § 29-20-205 reads in pertinent part[:]
        Immunity from suit of all 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.
        10. In other words, local governments retain legal immunity for
negligent acts or omissions of their employees which lead to injury, if those
acts or omissions involved the performance of a discretionary function[.]

                                     ***

        12. In Bowers, the Supreme Court noted that it had previously
defined discretionary functions on the basis of a distinction between
ministerial functions, where the governmental officer’s duty is “absolute,
certain and imperative,” and all the other functions where some degree of
judgment, and therefore of discretion, is involved.
        13[.] The court declared that the discretionary/ministerial distinction
was imprecise and likely to lead to inconsistent results, and it substituted in
its place an analysis which distinguishes between those acts performed at


                                      -3-
the planning level and those performed at the operational level[.] Id[.] at
430-431[.]

                                 ***

        16. In the case a[t] bar, the animal control officer, David Johnson,
was required to exercise his discretion in how to deal with the pit bull
following the attack on Mr. [I.], but that did not transform the nature [of]
his actions from operational to discretionary.
        17. Therefore, the City of Memphis was not rendered immune from
liability under the GTLA.
        18. Just because a governmental entity is not rendered immune under
the GTLA, that does not prevent such a defendant from invoking the public
duty doctrine, another possible source of immunity in appropriate cases, nor
does it excuse a plaintiff from having to establish all the elements of a
claim before he or she can prevail.
        19. The public duty doctrine is a common law defense which shields
public employees from suits for injuries that are caused by the employee’s
breach of a duty owed to the public at large rather than to the individual
plaintiff, and it likewise shields local governmental entities from such
liability. Ezell v Cockrell, 902 S[.] W[.] 2d at 397 (Tenn. 1995)[.]

                                     ***

        21. In Ezell v Cockrell, our Supreme Court recognized an exception
to the immunity enjoyed by local governmental entities under the public
duty doctrine, which arises where a special relationship between the
plaintiff and the public employee creates a special duty which is more
specific to the plaintiff than the duty owed by the employee to the public at
large[.] Ezell, 902 S.W.2d at 401.
        22. The court, in Ezell, noted that while the Special Duty Exception
was recognized by most jurisdictions applying the public duty doctrine, its
application varied from jurisdiction to jurisdiction. After discussing
various formulations, the court concluded that,

       ... a special duty of care exists when 1) officials, by their
       actions, affirmatively undertake to protect the plaintiff, and
       the plaintiff relies upon the undertaking; 2) a statute
       specifically provides for a cause of action against an official
       or municipality for injuries resulting to a particular class of
       individuals, of which the plaintiff is a member, from failure to
                                       -4-
              enforce certain laws; or 3) the plaintiff alleges a cause of
              action involving intent, malice, or reckless misconduct[.] Id.
              at 402.

              23. In the case at bar, no special duty exists, the duty that was owed
       to Ms. Fleming was the same duty that was owed to the general public.
              24. Ms. Fleming being in the neighborhood does not rise to the level
       of a special class such that a special duty of care would apply.

In May 2018, the Trial Court entered an order of voluntary dismissal without prejudice
with respect to the other defendants in the case. Plaintiff timely appealed to this Court.

                                         Discussion

        We restate and consolidate the issues Plaintiff raises on appeal into the following
two dispositive issues: 1) whether the GTLA supersedes the public duty doctrine; and, 2)
if the public duty doctrine survives, whether the Trial Court erred in finding that it applies
in the instant case.

       This case was decided by means of summary judgment. As our Supreme Court
has instructed:

              Summary judgment is appropriate 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. We review a trial court’s ruling on a motion for
       summary judgment de novo, without a presumption of correctness. Bain v.
       Wells, 936 S.W.2d 618, 622 (Tenn. 1997); see also Abshure v. Methodist
       Healthcare–Memphis Hosp., 325 S.W.3d 98, 103 (Tenn. 2010). In doing
       so, we make a fresh determination of whether the requirements of Rule 56
       of the Tennessee Rules of Civil Procedure have been satisfied. Estate of
       Brown, 402 S.W.3d 193, 198 (Tenn. 2013) (citing Hughes v. New Life Dev.
       Corp., 387 S.W.3d 453, 471 (Tenn. 2012)).

                                             ***

       [I]n Tennessee, as in the federal system, when the moving party does not
       bear the burden of proof at trial, the moving party 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
                                             -5-
       party’s evidence at the summary judgment stage is insufficient to establish
       the nonmoving party’s claim or defense. We reiterate that a moving party
       seeking summary judgment by attacking the nonmoving party’s evidence
       must do more than make a conclusory assertion that summary judgment is
       appropriate on this basis. Rather, Tennessee Rule 56.03 requires the
       moving party to support its motion with “a separate concise statement of
       material facts as to which the moving party contends there is no genuine
       issue for trial.” Tenn. R. Civ. P. 56.03. “Each fact is to be set forth in a
       separate, numbered paragraph and supported by a specific citation to the
       record.” Id. When such a motion is made, any party opposing summary
       judgment must file a response to each fact set forth by the movant in the
       manner provided in Tennessee Rule 56.03. “[W]hen a motion for summary
       judgment is made [and] . . . supported as provided in [Tennessee Rule 56],”
       to survive summary judgment, the nonmoving party “may not rest upon the
       mere allegations or denials of [its] pleading,” but must respond, and by
       affidavits or one of the other means provided in Tennessee Rule 56, “set
       forth specific facts” at the summary judgment stage “showing that there is a
       genuine issue for trial.” Tenn. R. Civ. P. 56.06. The nonmoving party
       “must do more than simply show that there is some metaphysical doubt as
       to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.
       Ct. 1348. The nonmoving party must demonstrate the existence of specific
       facts in the record which could lead a rational trier of fact to find in favor of
       the nonmoving party. If a summary judgment motion is filed before
       adequate time for discovery has been provided, the nonmoving party may
       seek a continuance to engage in additional discovery as provided in
       Tennessee Rule 56.07. However, after adequate time for discovery has
       been provided, summary judgment should be granted if the nonmoving
       party’s evidence at the summary judgment stage is insufficient to establish
       the existence of a genuine issue of material fact for trial. Tenn. R. Civ. P.
       56.04, 56.06. The focus is on the evidence the nonmoving party comes
       forward with at the summary judgment stage, not on hypothetical evidence
       that theoretically could be adduced, despite the passage of discovery
       deadlines, at a future trial.

Rye v. Women’s Care Cntr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn.
2015).

       We first address whether the GTLA supersedes the public duty doctrine. In her
appellate brief, Plaintiff asserts that “[t]he GTLA controls tort immunities with respect to
all governmental entities, and the Public Duty Doctrine was either implicitly or
effectively abolished by the enactment of the GTLA.” Elsewhere in her brief, Plaintiff
                                              -6-
argues further that “the application of the Public Duty Doctrine constitutes an
impermissible violation of the separation of powers doctrine because it encroaches on
what can only be described as the plain intent of our legislature when it passed the GTLA
and removed immunities in all instances except those specifically defined in the act . . . .”

       As Plaintiff acknowledges, however, this question does not cover new ground.
The fate of the public duty doctrine post enactment of the GTLA was addressed nearly 25
years ago by our Supreme Court in Ezell v. Cockrell, 902 S.W.2d 394 (Tenn. 1995).
Holding that the public duty doctrine lives on, our Supreme Court stated in pertinent part:

              The public duty doctrine originated at common-law and shields a
       public employee from suits for injuries that are caused by the public
       employee’s breach of a duty owed to the public at large. Kelly M. Tullier,
       Governmental Liability for Negligent Failure to Detain Drunk Drivers, 77
       Cornell L.Rev. 873, 886 (1992). The doctrine can be traced to the United
       States Supreme Court’s decision in South v. Maryland, 59 U.S. (18 How.)
       396, 15 L.Ed. 433 (1855), which held that a sheriff is not liable for failing
       to protect a kidnap victim because the sheriff’s duty to keep the peace was
       “a public duty, for neglect of which he is amenable to the public, and
       punishable by indictment only.” Id. at 403.

                                            ***

               Although, as the plaintiff points out, the Legislature has waived
       immunity in the Act for some activities that were protected at common law
       by the public duty doctrine, many of the governmental activities
       traditionally shielded by the public duty doctrine are expressly excepted
       from the limited waiver of immunity for negligent acts or omissions of
       governmental employees, under which the plaintiff brought this lawsuit.
       See Tenn. Code Ann. § 29-20-205(1) (exercise or performance of a
       discretionary function); –205(3) (issuance of licenses); –205(4) (failure to
       inspect); –205(7) (civil unrest); and –205(8) (tax collection). Accordingly,
       we are not persuaded that the Tennessee Governmental Tort Liability Act,
       which actually reiterates and extends the rule of governmental immunity,
       abolished, or was intended to abolish, the longstanding common-law public
       duty doctrine.

              Moreover, we are in agreement with the courts which have identified
       valid policy considerations which warrant continued judicial application of
       the public duty doctrine. We conclude that the doctrine serves the
       important purpose of preventing excessive court intervention into the
                                             -7-
      governmental process by protecting the exercise of law enforcement
      discretion. As we observed in State v. Jefferson, 529 S.W.2d 674, 689
      (Tenn. 1975), “[i]t is essential to the protection of society that a wide
      discretion be vested in officers chosen to enforce our laws....” See also,
      Barratt v. Burlingham, 492 A.2d at 1222; Ashburn v. Anne Arundel County,
      510 A.2d at 1084; Fessler by Fessler v. R.E.J., Inc., 514 N.E.2d at 522; see
      generally, 38 A.L.R.4th at § 3, 1197-1202. Finally, public forms of redress,
      other than civil actions, exist in Tennessee, as in most other states, to insure
      that officers who fail to faithfully perform their duties are accountable.
      Internal disciplinary policies, criminal sanctions, and in the case of publicly
      elected law enforcement officials, ouster proceedings, are alternative forms
      of redress. See Tenn. Code Ann. § 38-8-301 to § 38-8-309 (1991); Tenn.
      Code Ann. § 39-16-401 to § 39-16-406 (1991); Tenn. Code Ann. § 8-47-
      101 to § 8-47-126 (1993). We think that on balance, the State is better
      served by a policy that both protects the exercise of law enforcement
      discretion and provides accountability for failure to perform a duty.

Ezell, 902 S.W.2d at 397, 400-01 (footnotes omitted).

       Plaintiff argues that Ezell was decided wrongly. However, even if that is so, there
is nothing this Court can do about it. We are an intermediate appellate court, and the
Tennessee Supreme Court has the final word on Tennessee law. On the matter of our
duty to abide higher court precedents, we have stated thusly:

      Even more importantly, intermediate courts are not free to depart from the
      Tennessee Supreme Court’s unequivocal holdings. “The Court of Appeals
      has no authority to overrule or modify Supreme Court’s opinions.”
      Bloodworth v. Stuart, 221 Tenn. 567, 572, 428 S.W.2d 786, 789 (Tenn.
      1968) (citing City of Memphis v. Overton, 54 Tenn.App., 419, 392 S.W.2d
      86 (Tenn. 1964) ); Barger v. Brock, 535 S.W.2d 337, 341 (Tenn. 1976). As
      such, “[o]nce the Tennessee Supreme Court has addressed an issue, its
      decision regarding that issue is binding on the lower courts.” Morris v.
      Grusin, No. W2009-00033-COA-R3-CV, 2009 WL 4931324, at *4 (Tenn.
      Ct. App. Dec. 22, 2009) (quoting Davis v. Davis, No. M2003-02312-COA-
      R3-CV, 2004 WL 2296507, at *6 (Tenn. Ct. App. Oct. 12, 2004) ); see also
      Thompson v. State, 958 S.W.2d 156, 173 (Tenn. Crim. App. 1997) (“[I]t is
      a controlling principle that inferior courts must abide the orders, decrees
      and precedents of higher courts. The slightest deviation from this rigid rule
      would disrupt and destroy the sanctity of the judicial process.”) (quoting
      State v. Irick, 906 S.W.2d 440, 443 (Tenn. 1995) ); Levitan v. Banniza, 34

                                            -8-
       Tenn. App. 176, 185, 236 S.W.2d 90, 95 (Tenn. Ct. App. 1950) (“This
       court is bound by the decisions of the Supreme Court.”).

O’Dneal v. Baptist Memorial Hospital-Tipton, 556 S.W.3d 759, 772-73 (Tenn. Ct. App.
Feb. 6, 2018).

       We are not at liberty to depart from binding Supreme Court precedent. If the
public duty doctrine’s existence post enactment of the GTLA is to be judicially revisited,
it must be done by our Supreme Court, not us.

       Plaintiff goes further still to argue what we can only interpret to mean that the
Supreme Court’s decision in Ezell itself was unconstitutional for its alleged usurpation of
the legislative power. Again, our courts have a hierarchical structure. Just as we may not
depart from binding Supreme Court precedent, we likewise have no authority or power to
declare an opinion of our Supreme Court unconstitutional.

        Having determined that the public duty doctrine still exists, we next address
Plaintiff’s alternative issue of whether the Trial Court erred in finding that the public duty
doctrine applies in the instant case. According to Plaintiff, even if the public duty
doctrine survives, it does not apply in this case because Defendant was on notice of the
dog’s propensities and should have foreseen an incident occurring such as what happened
to her. Plaintiff states “[i]f this doctrine were interpreted as requiring the actual plaintiff,
by name, to be known to the public official as a condition precedent to the imposition of
liability, there would be virtually no GTLA case that could ever survive a summary
judgment proceeding, because . . . all government employees, by definition, act for the
public at large in the constituency through which they serve.”

        Respectfully, Plaintiff’s concerns about the public duty doctrine rendering the
GTLA hollow are somewhat unfounded. Plaintiff is correct that under Ezell a
percentage, perhaps even a significant percentage, of cases brought against governmental
entities that would survive under the GTLA will be dismissed under the public duty
doctrine. Not every case involving a public employee or governmental entity necessarily
is predicated on the existence of a duty to the public at large. The entire basis of
Plaintiff’s claim rests on Defendant having had a duty to protect citizens from dangerous
animals. Under Plaintiff’s theory, the animal control officials were bound to act because
of their public duty and not because they owned the dog in question or somehow had a
personal responsibility to keep it confined. Our Supreme Court has discussed application
of the public duty doctrine in the context of the GTLA as follows:

             Both the GTLA and the public duty doctrine are affirmative
       defenses. Courts first look to the GTLA. If immunity is found under the
                                              -9-
       GTLA, a court need not inquire as to whether the public duty doctrine also
       provides immunity. If, however, the GTLA does not provide immunity,
       courts may look to the general rule of immunity under the public duty
       doctrine. If immunity is then found under the public duty doctrine, the next
       inquiry is whether the special duty exception removes the immunity
       afforded under the public duty doctrine.

Chase v. City of Memphis, 971 S.W.2d 380, 385 (Tenn. 1998).

        Although it is undisputed that the GTLA provides no immunity to Defendant here,
Defendant asserted the public duty doctrine as a defense. The doctrine protects
governmental entities like Defendant as well as public employees. See Ramsey v. Cocke
County, No. E2016-02145-COA-R3-CV, 2017 WL 2713213, at *7 (Tenn. Ct. App. June
23, 2017), Rule 11 appl. perm. appeal denied Nov. 17, 2017. As the alleged tortious
failure to act in this case necessarily constitutes a failure to observe a duty to the public at
large for the reasons discussed above, we find the public duty doctrine applies.

       The final stage of the analysis is to determine whether a special duty exception
exists to negate the public duty doctrine. Ezell formulated three categories of special
duty exception:

       1) officials, by their actions, affirmatively undertake to protect the plaintiff,
       and the plaintiff relies upon the undertaking; 2) a statute specifically
       provides for a cause of action against an official or municipality for injuries
       resulting to a particular class of individuals, of which the plaintiff is a
       member, from failure to enforce certain laws; or 3) the plaintiff alleges a
       cause of action involving intent, malice, or reckless misconduct.

Ezell, 902 S.W.2d at 402.

       Plaintiff, however, makes no effort to establish how her case fits into one of the
three types of special duty exception to the public duty doctrine. While Plaintiff alleged
in her complaint that Defendant’s conduct was reckless, which would fit into category 3),
she abandoned that position on appeal and argues only that if the public duty doctrine still
exists at all it should not apply here because she was a foreseeable plaintiff.
Foreseeability, while a factor in every negligence case, is not one of the valid special duty
exceptions. We will not attempt to find a special duty exception where none has been
argued. “It is not the responsibility of Tennessee’s appellate courts to research or
construct the parties’ arguments for them.” State v. Hester, 324 S.W.3d 1, 80 (Tenn.
2010).

                                             -10-
       The attack on Plaintiff was truly unfortunate and serious. Nevertheless, our
Supreme Court in Ezell made clear that governmental entities may assert the public duty
doctrine in those instances where their employee’s conduct involves a duty to the public
at large. Plaintiff has staked her appeal on our somehow departing from Ezell. Only our
Supreme Court can do that. Defendant made a properly supported motion for summary
judgment relying upon the public duty doctrine and is entitled to judgment as a matter of
law. We affirm the judgment of the Trial Court.

                                       Conclusion

       The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
Appellant, Janet C. Fleming, and her surety, if any.


                                          ____________________________________
                                          D. MICHAEL SWINEY, CHIEF JUDGE




                                           -11-
