                  IN THE SUPREME COURT OF TENNESSEE
                             AT KNOXVILLE
                                 September 5, 2013 Session

         KENNETH E. KING v. ANDERSON COUNTY, TENNESSEE

          Appeal by Permission from the Court of Appeals, Eastern Section
                        Circuit Court for Anderson County
                   No. B0LA0397      Donald Ray Elledge, Judge


               No. E2012-00386-SC-R11-CV - Filed November 21, 2013




G ARY R. W ADE, C.J., dissenting.

       I respectfully dissent.

                                              I. Facts
        On October 27, 2009, Charles Faircloth, a deputy with the Anderson County Sheriff’s
Department, stopped a car driven by Kenneth King (the “Plaintiff”) for driving his vehicle
into the path of the deputy’s car and for failing to operate his vehicle’s headlights while it
was raining. During a routine check of the Plaintiff’s driver’s license, Deputy Faircloth
received erroneous information that the Plaintiff’s license had been suspended. Deputy
Faircloth then notified the Plaintiff that he was under arrest and would be taken into custody.
In response, the Plaintiff insisted that there must be “some mistake” and asked Deputy
Faircloth to verify the information. He also asked permission to telephone a family member
to notify his children of his circumstances. The deputy refused to allow a call. At that point,
the Plaintiff argued with Deputy Faircloth and cursed at him. When the Plaintiff was booked
into the Anderson County Detention Facility for driving on a suspended license, officers
labeled him as “medium security” based upon his resistance to the arrest process and his
uncooperative behavior. The Plaintiff was assigned to cell 306G, which contained six other
inmates, four of whom were charged with violent crimes: Cody Brown, charged with
domestic assault and false imprisonment; Gary Russell, charged with aggravated robbery and
aggravated assault; Bradford Pate, charged with murder, aggravated burglary, aggravated
robbery, and aggravated kidnapping; and Brandon Paul, charged with attempted second
degree murder. The Plaintiff remained in the cell throughout the night, apparently without
incident.
        On the following morning, the Plaintiff was transported by officers to General
Sessions Court for a hearing. At about 11:00 a.m., when it was discovered that the Plaintiff
had a proper license, the judge ordered the Plaintiff to be released. The Plaintiff was then
returned to the detention facility to await the arrival of Officer Terri McCloud, who had the
responsibility of processing his release. When Officer McCloud had not arrived after more
than three hours, the Plaintiff was returned to the same cell he had occupied the previous
night. Although Officer McCloud had no other release responsibilities during the delay, the
evidence in the record does not otherwise indicate why the Plaintiff was returned to the cell
rather than being released as ordered by the judge.1

       Within an hour after his return to the cell, the Plaintiff was assaulted by Mr. Paul.
Although what provoked the altercation is unclear from the record, there was evidence that
the Plaintiff claimed that he had access to drugs and had cursed one of his cellmates. The
Plaintiff’s injuries, which were described as serious, included a broken nose and a broken
orbital bone. The Plaintiff had also reported to the detention facility’s nurse that his
cellmates, in a futile search for drugs, had fondled his testicles and digitally penetrated his
rectum.

       Afterward, the Plaintiff filed suit against Anderson County, claiming that it had been
negligent in three ways: (1) by classifying him as a medium security inmate; (2) by failing
to properly supervise the inmates in his cell; and (3) by failing to release him in a timely
manner.

       Following a bench trial, the trial court rejected the Plaintiff’s claims that Anderson
County was negligent in either classification or supervision, but ruled that Anderson County
was, in fact, negligent by unreasonably delaying the release of the Plaintiff. The court
awarded the Plaintiff $170,000 in damages and apportioned fifty-five percent of the fault to
Anderson County while attributing forty-five percent of the fault to the Plaintiff. The
judgment, therefore, amounted to $93,500. The trial court also ordered Anderson County to
pay the Plaintiff’s medical bills, which totaled $42,317.34.

       The Court of Appeals affirmed, concluding that the injury was reasonably foreseeable
because the Plaintiff, after the clerical mistake affecting his license was revealed and the
judge ordered him released, was not timely released, and was returned to the same cell as
inmates charged with violent crimes, thereby creating a foreseeable potential for harm. King
v. Anderson Cnty., No. E2012-00386-COA-R3-CV, 2012 WL 5960838, at *5 (Tenn. Ct.
App. Nov. 29, 2012). The Court of Appeals further concluded that the evidence did not
preponderate against the trial court’s finding that Anderson County was fifty-five percent at

       1
           Neither Deputy Faircloth nor Officer McCloud appeared as a witness for Anderson County.

                                                   2
fault for the incident. Id.


                                      II. Analysis
        Initially, in order to demonstrate a prima facie claim of negligence, basically defined
as injuring another through failure to exercise reasonable care, a plaintiff must establish the
following essential elements: “(1) a duty of care owed by defendant to plaintiff; (2) conduct
below the applicable standard of care that amounts to a breach of that duty; (3) an injury or
loss; (4) cause in fact; and (5) proximate, or legal, cause.” Giggers v. Memphis Hous. Auth.,
277 S.W.3d 359, 364 (Tenn. 2009) (quoting McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.
1995)).

       The majority has, in my view, properly determined that Anderson County owed a duty
of care, that by failing to timely release the Plaintiff from custody the conduct of Anderson
County officers fell below the applicable standard, that the Plaintiff suffered injuries, and that
the deviation from the standard of care was the cause in fact of the injuries. Where I part
ways with the majority is the application of the fifth element of the Plaintiff’s negligence
claim—proximate cause.

       Proximate cause is established by a three-prong test:

       (1) the tortfeaser’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 been foreseen or anticipated by a person of ordinary intelligence
       and prudence.

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

       I agree with the majority’s conclusion that the first prong was established. I cannot
agree, however, that public policy considerations should limit liability in this circumstance
and that Anderson County officials had no reason to foresee or anticipate the prospect of
violence—the remaining two prongs in the analysis. For Anderson County to prevail on the
second prong, the court must determine that there is an express public policy ground that
prevents liability for “otherwise foreseeable consequences.” See Smith v. Gore, 728 S.W.2d
738, 749 (Tenn. 1987) (emphasis added) (“[I]f some definable policy relieves [d]efendants
of the responsibility for the otherwise foreseeable consequences . . . , then they cannot be
held liable . . . .”). This prong recognizes that, at times, personal recovery for an injury
should yield to the interests of the general welfare. See id. at 746-47. Our state’s public

                                                3
policy “is to be found in [our] constitution, statutes, judicial decisions and applicable rules
of common law.” Id. at 747 (quoting State ex rel. Swann v. Pack, 527 S.W.2d 99, 112 n.17
(Tenn. 1975)). Although our state’s public policy clearly establishes that prisons and jails
are not subject to strict liability for inmate injuries, see Gillespie v. Metro. Gov’t, No.
01A01-9109-CV-00317, 1992 WL 9441, at *1 (Tenn. Ct. App. Jan. 24, 1992), it does not
prevent recovery for foreseeable injuries, Tenn. Code Ann. § 29-20-205 (2012) (removing
governmental immunity for injuries that are proximately caused by a government employee’s
negligent act); see also Gillespie, 1992 WL 9441, at *1 (recognizing that jails are subject to
liability when they fail to use reasonable care in preventing foreseeable attacks). I would
hold, therefore, that the trial court properly found no limitation of recovery grounded in
public policy.

        As to the third prong, in order to have granted relief, the trial court had to have found
that the incident was reasonably foreseeable under these specific circumstances. I would
hold that the evidence does not preponderate against that finding.2

       Because the analysis of foreseeability is not limited to an examination of whether the
detention facility was on actual notice of a likely attack, see Sanchez v. State, 784 N.E.2d
675, 679 (N.Y. 2002) (holding that foreseeability does not require “proof . . . that the State
actually knew that the assault was about to take place”), the inquiry should include an
assessment of all of the relevant facts, direct and circumstantial, as to the risk of potential
harm, see id. (concluding that facts relevant to foreseeability include “what the State
reasonably should have known—for example, from its knowledge of risks to a class of
inmates based on the institution’s expertise or prior experience, or from its own policies and
practices designed to address such risks”). Notably, in the prison context, foreseeable
injuries can even include harm that an inmate is likely to suffer because of his or her own
self-destructive conduct. See, e.g., Cockrum v. State, 843 S.W.2d 433, 436 (Tenn. Ct. App.
1992) (“[C]ourts consistently hold that custodians have a duty to protect prisoners . . . from
reasonably foreseeable self-destructive acts.”); see also Bartlett v. Commonwealth, 418
S.W.2d 225, 227 (Ky. 1967) (allowing a negligence claim involving an inmate-on-inmate
attack to proceed where the injured party was “an individual who was prone to irritate and
exasperate his fellow inmates”).




        2
           Because of its determination of the proximate cause element, the majority does not reach the issue
of apportionment of damages. A trier of fact has broad discretion in allocating fault, Wright v. City of
Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995), and the amount of damages awarded will only be altered if
the trial court adopted the wrong measure of damages or the evidence preponderates otherwise, Huskey v.
Rhea Cnty., No. E2012-02411-COA-R3-CV, 2013 WL 4807038, at *12 (Tenn. Ct. App. Sept. 10, 2013).
In my assessment, the trial court had a proper evidentiary basis for the award of damages.

                                                     4
        Because foreseeability is a question for the trier of fact, McClenahan, 806 S.W.2d at
775, proximate cause should be decided by trial courts rather than the appellate courts,
“unless the uncontroverted facts and inferences to be drawn from them make it so clear that
all reasonable persons must agree on the proper outcome.” Wilson v. Americare Sys., Inc.,
397 S.W.3d 552, 559 (Tenn. 2013) (emphasis added) (quoting Hale v. Ostrow, 166 S.W.3d
713, 718 (Tenn. 2005)). Although subject to de novo review, findings of fact must be
evaluated with a presumption of correctness. Tenn. R. App. P. 13(d). That is, the ruling
should not be overturned unless the evidence preponderates otherwise. Id.3 In my view, the
trial court in this instance, as the finder of fact, had an evidentiary basis for concluding that
the type of harm suffered by the Plaintiff was reasonably foreseeable.

        After having been arrested and transported to jail based upon erroneous information
as to the status of his driver’s license, the Plaintiff was, as pointed out by the trial court,
understandably upset. Because of his vociferous insistence that his arrest had to be some
kind of mistake, the Plaintiff, charged with a minor traffic offense, was classified as
“medium security” and placed in a cell with six other inmates, four of whom were charged
with violent crimes. On the following morning, when appearing before the General Sessions
Court, the mistake was discovered, and the Plaintiff was ordered to be released. Instead of
being immediately released from the detention facility, however, the Plaintiff waited more
than three hours for the officer who was charged with the responsibility of processing


        3
          There are important policy considerations underlying our limited scope of appellate review in
regard to findings of fact. As one commentator has observed,

                 Standards of review help judges in trial and appellate courts maintain a healthy
        respect for the others’ strengths. . . . They force the appellate court to recognize that the trial
        court proceedings were not just a warm-up exercise for the appellate court and that the
        decision reached in the lower court should be the final determination unless, of course, the
        error was harmful.

Amanda Peters, The Meaning, Measure, and Misuse of Standards of Review, 13 Lewis & Clark L. Rev. 233,
239 (2009) (footnotes omitted).

         One of the primary strengths of the trial court as a trier of fact is that it is “in the best position to
discern the truth, having heard testimony first-hand along with all the eye-twitches, sweaty brows, pregnant
pauses and other non-verbal cues that accompany it. [Fact finders] also get to see the physical evidence in
person.” Randall H. Warner, All Mixed Up About Mixed Questions, 7 J. App. Prac. & Process 101, 104
(2005). “All the appellate court gets,” in contrast, “is a cold record.” Id.; see also Chad M. Oldfather,
Appellate Courts, Historical Facts, and the Civil-Criminal Distinction, 57 Vand. L. Rev. 437, 445 (2004)
(“Whether judge or jury, the finder of fact at the trial level is present in court as the evidence comes in. The
fact finder thus enjoys an advantage over appellate courts in that it experiences the introduction of evidence
and testimony as it happens. Because of this, the factfinder can assess not only what a witness says, but also
how she says it.” (footnote omitted)).

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releases. When that officer failed to exercise her duty, the indignant Plaintiff, who had been
ordered released, was returned to the same cell—a potentially volatile situation.

       In its ruling, the trial court found that the Plaintiff openly expressed his frustration
during the arrest process and, after being ordered released at his court appearance on the
following morning, he continued to

       ha[ve an] attitude once [he was taken] back to jail[,] . . . after [he] should
       ha[ve] been released . . . . And when one of the inmates said something to
       [him], whether it was about drugs or anything else, [he] went off . . .
       [exhibiting] exactly the same reaction that [he] had [earlier] with [the officer]
       . . . and maybe justifiably so.

(Emphasis added.) After an extensive recitation of the evidence, the trial court made the
following observation: “I have no doubt in my mind when [Officer McCloud] didn’t show
up [the Plaintiff] was mad just like he was mad with” the arresting officer on the night
before. This factual assessment is determinative, in my view, on the foreseeability
component. That is, the detention facility officers were more likely than not on notice of the
volatility of the situation.

       The majority relies in great measure on the trial court’s comment that the assault was
“spur of the moment” as support for its conclusion that the assault was not reasonably
foreseeable. In my opinion, this statement, in proper context, was a reference to whether the
Anderson County officials were negligent in supervision—only one of the three theories of
recovery—a theory the trial court rejected. During its discourse, the trial court stated that

               Anderson County was a direct supervision jail, and I so find. And
       again, it’s based upon not just the total hours that they’re outside in the facility,
       it’s based upon all the things including that the officer is in the pod with them,
       has direct contact many times, often every day. [The expert’s] opinion was
       that [the Plaintiff] was assaulted because he had been talking about the drugs
       and that’s part of the reason for the spur of the moment assault.
       ....
               [The expert] found that . . . it’s [a] direct supervision jail, that [the
       Plaintiff] was appropriately supervised, and I so find.

      Like the Court of Appeals, I construe this statement as a determination that Anderson
County properly supervised the inmates and did not have any further responsibility under the
circumstances to segregate the Plaintiff or provide additional security. King, 2012 WL
5960838, at *5. Construed this way, the trial court’s determination that the assault was “spur

                                                6
of the moment” simply means that it occurred very suddenly. Applying this interpretation
to the Plaintiff’s claim of negligent supervision, the trial court concluded that even with
reasonable supervision by jail authorities, the sudden altercation between the Plaintiff and
Mr. Paul could not have been prevented. See Sanchez, 784 N.E.2d at 679 (observing that
reasonable supervision does not require “constant guarding and watching” (quoting Flaherty
v. State, 73 N.E.2d 543, 544 (N.Y. 1947))). The same principle applies differently to the
theory of timely release, however, because it is foreseeable that incarcerating a
temperamental inmate beyond the time of his entitlement to release could result in harm, and
that officials may easily prevent that harm by processing releases in a timely fashion. I do
not, therefore, believe that the trial court’s “spur of the moment” reference should be
extended to the officers’ failure to release the Plaintiff on a timely basis.

        Our review is limited to the transcript of the proceeding. The trial judge saw and
heard the witnesses firsthand. This Plaintiff was found by the trial court to have been
mistakenly charged with a traffic offense. When he strenuously protested being taken into
custody, he was jailed with inmates charged with violent crimes. After a night in jail, the
Plaintiff was taken to court and ordered released. After more than a three-hour wait for
processing, officers, absent any basis for doing so, placed him back into the same cell with
the same inmates, where he was assaulted. Under these circumstances, it is my opinion that
the trial court properly found as foreseeable that the Plaintiff, wrongly imprisoned, would
lodge strong and perhaps offensive objections, whether to law enforcement officers or to
individuals in his cell, and that Anderson County officials should have timely processed his
release as a means of avoiding the conflict. The trial court described the Plaintiff as
justifiably indignant.4 I would defer to those findings.

                                       III. Conclusion
        In summary, I do not find that the facts preponderate against the trial court’s finding
of proximate cause and award of damages. Accordingly, I would affirm the judgments of
the trial court and the Court of Appeals.


                                                            ______________________________
                                                            GARY R. WADE, CHIEF JUSTICE


        4
          The trial court found that the Plaintiff was angry about being incarcerated and was confrontational.
Although the Plaintiff testified that he was “scared” when he was initially housed in his cell, only the
emotional state apparent to the detention facility officials at the time the Plaintiff should have been released
is relevant in assessing whether the injury was reasonably foreseeable. See Doe v. Linder Constr. Co., 845
S.W.2d 173, 178 (Tenn. 1992) (“Foreseeability must be determined as of the time of the acts or omissions
claimed to be negligent.”).

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