                                                                                         04/19/2017




               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                 March 7, 2017 Session

      SHARYN HAYNES, ET AL. v. WAYNE COUNTY, TENNESSEE

                  Appeal from the Circuit Court for Wayne County
                         No. 4525    Russell Parkes, Judge
                     ___________________________________

                           No. M2016-01252-COA-R3-CV
                       ___________________________________

This is an appeal from the trial court’s grant of summary judgment to the defendant,
Wayne County, in a wrongful death action filed under the Governmental Tort Liability
Act. The plaintiff’s grandson committed suicide several hours after being released from
the defendant’s jail. The plaintiff filed this wrongful death action alleging that his death
was caused by the defendant’s negligence in releasing him from custody in an intoxicated
state without a mental health evaluation and without notifying his family of suicidal
threats that he made while incarcerated. Having reviewed the record, we conclude that
the plaintiff’s evidence at the summary judgment stage is insufficient to establish that the
defendant breached its duty of care to the decedent or that its conduct was a proximate
cause of his death. We therefore affirm the trial court’s grant of summary judgment.

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

ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and RICHARD H. DINKINS, J., joined.

Russell Belk and Taylor Sutherland, Nashville, Tennessee, for the appellant, Sharyn
Haynes.

Robyn Beale Williams and Ross V. Smith, Nashville, Tennessee, for the appellee, Wayne
County, Tennessee.

                                        OPINION

                     I. BACKGROUND AND PROCEDURAL HISTORY

      The decedent, twenty-year-old Philip Haynes, was arrested for underage
consumption, public intoxication, and resisting arrest in the early morning hours of July
17, 2010. Mr. Haynes, his cousin, and another man had stopped to use the restroom at a
truck stop in Clifton, Tennessee. All three men had been drinking, but Mr. Haynes was
the most intoxicated of the group. Mr. Haynes caught the attention of police officers in
the truck stop’s parking lot when he stumbled getting out of the car. The officers asked
the men to step out of the car and instructed them to sit on a nearby trailer while they
investigated. While they were sitting on the trailer, Mr. Haynes became upset.
According to his cousin, Mr. Haynes started crying and saying “this is it” repeatedly.
The cousin, fearful that Mr. Haynes would try to get back into the car and follow through
on past threats to commit suicide by running into a semi-trailer truck, tried to calm Mr.
Haynes. Despite his efforts, Mr. Haynes attempted to run back to the car. The officers
stopped Mr. Haynes before he reached the car and put him in handcuffs. The officers
placed Mr. Haynes under arrest and transported him to the Wayne County Jail.

       The officers arrived at the Wayne County Jail with Mr. Haynes at approximately
3:00 a.m. There, they transferred him to the custody of Wayne County Sheriff’s Deputies
Jonathan Prince and Kevin Clayton. According to Deputy Prince, Mr. Haynes was
“really, really intoxicated to the point of passing out” when he arrived at the jail. Mr.
Haynes had vomited on himself in the patrol car and was unable to walk into the jail
without assistance. After they walked him into the jail, Mr. Haynes asked Deputies
Prince and Clayton if their guns were real. When the deputies replied that they were, Mr.
Haynes asked the deputies to shoot him. Deputy Clayton reported Mr. Haynes’s
statement to the booking officer, Correctional Officer Kent Dugger. As part of the
booking process, Officer Dugger asked Mr. Haynes a series of standard medical
questions and recorded his answers on a medical form. The medical form reflects that
Mr. Haynes told Officer Dugger that he was suffering from depression and had attempted
to commit suicide “several times” in the past.

       Due to his concern that Mr. Haynes posed a suicide risk, Officer Dugger put Mr.
Haynes in a suicide prevention suit and placed him on suicide watch in an isolated cell
with cameras. Officer Dugger monitored Mr. Haynes for the remainder of his shift, and
Mr. Haynes slept in his cell without incident. At the time, a non-profit health care
organization called Centerstone had a mobile crisis response team that would evaluate
and provide mental health services to suicidal inmates at the jail free of charge. The jail
did not have a contract with Centerstone, but Officer Dugger was aware of its services
and had called Centerstone in the past when an inmate attempted to hang himself in his
cell. Officer Dugger testified in his deposition that he elected not to call Centerstone to
evaluate Mr. Haynes because Mr. Haynes had only made a suicidal threat as opposed to
an actual suicide attempt. In any event, Centerstone’s policies stated that services to
intoxicated individuals would not be offered until the individual was no longer in an
intoxicated state. Wayne County Sheriff Rick Wilson also testified in his deposition that

                                           -2-
Centerstone’s mobile crisis response team would not come to the jail to evaluate
intoxicated inmates.

        When Officer Dugger’s shift ended at 6:00 a.m., he was replaced by Correctional
Officer Justin Sanders. Officer Dugger advised Officer Sanders of Mr. Haynes’s suicidal
threat and that Mr. Haynes was on suicide watch. He also advised Officer Sanders that
Mr. Haynes would be eligible for release after Officer Sanders finished making his
morning rounds. Officer Sanders testified in his deposition that he offered breakfast to
Mr. Haynes around 6:30 a.m., but Mr. Haynes declined it. Between one and two hours
later, Mr. Haynes called for Officer Sanders and requested a blanket. Rather than give
Mr. Haynes a blanket, Officer Sanders informed Mr. Haynes that he was eligible to be
released. Officer Sanders testified that he then asked Mr. Haynes if he remembered
making a suicidal threat the night before. According to Officer Sanders, Mr. Haynes
replied in a joking manner that he remembered making the statement but was just drunk
and did not mean it. Officer Sanders then removed Mr. Haynes from his cell and began
filling out paperwork for his release from custody. According to Officer Sanders, the
release process took about an hour and Mr. Haynes seemed fine during that time. Officer
Sanders testified that Mr. Haynes was joking and laughed about the vomit on his clothes.
Officer Sanders testified that he did not feel that there was any need to contact a medical
provider before releasing Mr. Haynes because Mr. Haynes was fine.

        Officer Sanders released Mr. Haynes from the Wayne County Jail at
approximately 9:30 a.m. Sometime around 10:00 a.m., Mr. Haynes called his cousin who
had been with him the night before and asked to be picked up from a McDonald’s
restaurant. Because he did not have a car, the cousin told Mr. Haynes’s grandmother and
guardian, Sharyn Haynes, that Mr. Haynes had been arrested and needed to be picked up.
Ms. Haynes and the cousin drove to the McDonald’s to pick up Mr. Haynes, but he was
not there when they arrived. After driving to the jail to look for him there, they
eventually found Mr. Haynes walking on the side of the road. Ms. Haynes testified in her
deposition that Mr. Haynes appeared to be still intoxicated when they picked him up.
She also testified that Mr. Haynes appeared to be angry with himself and that they sat in
silence on the ride back to her house. Ms. Haynes drove Mr. Haynes to her house and
left him there alone while she took the cousin back to his mother’s house. Mr. Haynes
fatally shot himself shortly thereafter at approximately 11:49 a.m.

       In July 2011, Ms. Haynes (hereinafter “Plaintiff”), acting as Mr. Haynes’s heir and
next friend, filed a wrongful death action against Wayne County (“Defendant”).1 Her

1
 Plaintiff also named the Wayne County Sheriff’s Department and the Wayne County Sheriff’s Office
Division of Corrections as defendants in her complaint. During the trial court’s summary judgment
hearing, however, Plaintiff’s counsel conceded that those two entities were not proper parties to the
                                                -3-
complaint alleged that Mr. Haynes’s death was the result of Defendant’s negligence in
releasing him from custody in an intoxicated state without having him evaluated by a
mental health professional and without notifying his family of the suicidal threats that he
made while incarcerated. In its answer, Defendant denied the allegations of negligence
and asserted that any negligent conduct on its part was not the proximate cause of Mr.
Haynes’s death. Following a period of discovery, Defendant filed a properly supported
motion for summary judgment in July 2015. Plaintiff opposed the motion in September
2015. In October 2015, the trial court granted Defendant’s motion for summary
judgment, concluding that Defendant had negated the breach of duty and proximate
causation elements of Plaintiff’s negligence claim. Thereafter, Ms. Haynes filed a timely
notice of appeal to this Court.

                                                II. ISSUES

        Ms. Haynes presents the following issue on appeal, as we have restated it:

        1. Whether the trial court erred in granting Defendant’s motion for
           summary judgment.

        Wayne County presents the following additional issue, as we have restated it:

        1. Whether Ms. Haynes has standing to bring this cause of action.

                                     III. STANDARD OF REVIEW

       This is an appeal from the trial court’s grant of a motion for summary judgment.
We review a trial court’s summary judgment ruling de novo with no presumption of
correctness. Abshure v. Methodist Healthcare-Memphis Hosps., 325 S.W.3d 98, 103
(Tenn. 2010). In doing so, we must make a fresh determination as to whether the
requirements of Rule 56 of the Tennessee Rules of Civil Procedure have been satisfied.
Id.

       Rule 56 provides that 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. When
the party moving for summary judgment will not have the burden of proof at trial, it may
satisfy its initial burden of production either (1) by affirmatively negating an essential

lawsuit. The trial court therefore dismissed all claims as to those two parties. Plaintiff does not challenge
that ruling on appeal.
                                                   -4-
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 v. Women’s Care Ctr. of Memphis, MPLLC,
477 S.W.3d 235, 264 (Tenn. 2015). If the moving party fails to meet its initial burden of
production, then the nonmoving party’s burden is not triggered, and the court should
dismiss the motion for summary judgment. Town of Crossville Hous. Auth. v. Murphy,
465 S.W.3d 574, 578-79 (Tenn. Ct. App. 2014) (citing Martin v. Norfolk S. Ry. Co., 271
S.W.3d 76, 83 (Tenn. 2008)). If, however, the moving party does make a properly
supported motion for summary judgment, then the burden of production shifts to the
nonmoving party to demonstrate the existence of a disputed fact requiring trial. Id. at 578
(citing Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)).

        To survive a properly supported motion for 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.’” Rye, 477 S.W.3d at 265 (quoting Tenn. R. Civ. P. 56.06). The nonmoving
party must demonstrate the existence of specific facts in the record that could lead a
rational trier of fact to find in favor of the nonmoving party. Id. If adequate time for
discovery has passed and 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, then
the motion for summary judgment should be granted. Id. As such, even when the
determinative issue is ordinarily a question of fact for the jury, summary judgment is
appropriate if the uncontroverted facts and inferences to be drawn from those facts make
it clear that a reasonable person can reach only one conclusion. White v. Lawrence, 975
S.W.2d 525, 529-30 (Tenn. 1998).

                                      IV. DISCUSSION

       Defendant contends Plaintiff lacks standing to file a wrongful death action on
behalf of Mr. Haynes. Although Plaintiff initiated this appeal from the trial court’s grant
of summary judgment, we must address the issue of standing first because deciding the
case on summary judgment presupposes that Plaintiff had standing to file the action.

              A. Plaintiff’s Standing to Initiate a Wrongful Death Action

        Standing is the doctrine by which the courts determine whether a particular litigant
is entitled to pursue judicial relief as to a particular issue or cause of action. Am. Civil
Liberties Union of Tenn. v. Darnell, 195 S.W.3d 612, 619 (Tenn. 2006). Grounded in
concern for the proper–and properly limited–role of the courts in a democratic society,
the doctrine of standing precludes courts from adjudicating an action at the instance of
                                            -5-
one whose rights have not been invaded or infringed. Id. (citing Warth v. Seldin, 422
U.S. 490, 498 (1975); Mayhew v. Wilder, 46 S.W.3d 760, 767 (Tenn. Ct. App. 2001)).
Persons whose rights or interests have not been affected have no standing and are,
therefore, not entitled to judicial relief. State v. Harrison, 270 S.W.3d 21, 28 (Tenn.
2008). The sort of distinct and palpable injury that will create standing must be an injury
to a recognized legal right or interest. Id. Such a legal right or interest may be created or
defined by statute. Id. “When a statute creates a cause of action and designates who may
bring an action, the issue of standing is interwoven with that of subject matter jurisdiction
and becomes a jurisdictional prerequisite.” Osborn v. Marr, 127 S.W.3d 737, 740 (Tenn.
2004).

       Wrongful death actions are governed purely by statute in Tennessee. At common
law, there was no action that survivors could bring for the wrongful death of a relative.
Foster v. Jeffers, 813 S.W.2d 449, 452 (Tenn. Ct. App. 1991). As a result, it was more
economically prudent in some cases to kill a person than to merely inflict a nonfatal
injury. Id. To negate that moral dilemma, legislatures enacted wrongful death statutes
aimed at keeping a decedent’s cause of action from dying with the decedent. Id.
Tennessee’s wrongful death statute provides:

       The right of action that a person who dies from injuries received from
       another, or whose death is caused by the wrongful act, omission, or killing
       by another, would have had against the wrongdoer, in case death had not
       ensued, shall not abate or be extinguished by the person’s death but shall
       pass to the person’s surviving spouse and, in case there is no surviving
       spouse, to the person’s children or next of kin[.]

Tenn. Code Ann. § 20-5-106(a). Notably, the statute does not create any right of action
existing independently of that which the decedent would have had, if he or she had
survived. Kline v. Eyrich, 69 S.W.3d 197, 206-07 (Tenn. 2002). Although the living
beneficiaries of the action may seek limited recovery for their own losses in addition to
those of the decedent, the right of action itself remains one that is single, entire, and
indivisible. Id. at 206 (citing Hill v. Germantown, 31 S.W.3d 234, 239 (Tenn. 2000);
Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 598 (Tenn. 1999)).

       Because multiple actions may not be brought to resolve a single wrongful death
claim, the wrongful death statutes carefully prescribe the priority of those who may assert
the action on behalf of the decedent and his or her other beneficiaries:

       The [wrongful death] action may be instituted by the personal
       representative of the deceased or by the surviving spouse in the surviving

                                            -6-
       spouse’s own name, or, if there is no surviving spouse, by the children of
       the deceased or by the next of kin[.]

Tenn. Code Ann. § 20-5-107(a). The statutes governing intestate succession govern
priorities among next of kin. See House v. Gibson, 827 S.W.2d 310, 311 (Tenn. Ct. App.
1991). Thus, the superior right to bring a wrongful death action falls first to a surviving
spouse, then to any children, then to a parent, then to a sibling, then to a grandparent. See
Tenn. Code Ann. § 31-2-104. An inferior beneficiary may not sue until those persons
with a superior right waive their right of action. Koontz v. Fleming, 62 S.W.2d 821, 824
(Tenn. Ct. App. 1933). Notably, however, an adult beneficiary may waive his or her
superior right to maintain a wrongful death action by permitting an inferior beneficiary’s
action to stand without objection. Busby v. Massey, 686 S.W.2d 60, 62 (Tenn. 1984)
(citing Koontz, 62 S.W.2d at 824).

       In its motion for summary judgment, Defendant argued that Plaintiff lacked
standing to institute a wrongful death action on behalf of Mr. Haynes because as many as
three other individuals held a superior right to bring such an action. Specifically,
Defendant asserted that the whereabouts of Mr. Haynes’s biological father were
unknown, that Mr. Haynes may have been adopted by his mother’s ex-husband, and that
Mr. Haynes had a half-brother.2 The trial court rejected Defendant’s argument, noting
that an inferior beneficiary may initiate a wrongful death action as long as the other
beneficiaries have waived their superior rights to do so.

        On appeal, Defendant argues that the trial court’s decision was erroneous because
Plaintiff did not present any evidence that Mr. Haynes’s other beneficiaries waived their
superior rights. Defendant’s argument suggests that, in bringing a wrongful death action,
an inferior beneficiary must affirmatively demonstrate that all individuals who may hold
a superior right to file the action have waived it. That is not the case. A beneficiary may
impliedly waive his or her superior right to file a wrongful death action by permitting the
plaintiff’s action to stand without objection. See Busby, 686 S.W.2d at 62. Nothing in
the record suggests that Mr. Haynes’s adoptive father or half-brother have taken any
action to maintain control over this action. Furthermore, the statute prescribing the
priority of those who may assert a wrongful death action is intended to protect defendants
from the expense of defending multiple lawsuits arising from a single injury to a single
individual, not to allow defendants to escape liability for a wrongful act. To conclude
otherwise would resurrect the very moral dilemma that the wrongful death statutes were
enacted to resolve.


2
  It is undisputed that Mr. Haynes was not married and did not have any children. It is likewise
undisputed that he was predeceased by his mother.
                                             -7-
       Neither party disputes that, as Mr. Haynes’s maternal grandmother, Plaintiff is a
person authorized by statute to institute a wrongful death action on his behalf. See Tenn.
Code Ann. § 20-5-107(a). In the absence of any indication that Mr. Haynes has other
beneficiaries who hold a superior right to bring this action and object to her doing so, we
conclude that Plaintiff is a proper party with standing in this case.


                             B. Plaintiff’s Negligence Claim

       Having resolved the issue of standing, we now consider the trial court’s decision
to dismiss Plaintiff’s wrongful death action at the summary judgment stage. Plaintiff’s
wrongful death action is based on a claim for negligence. To prevail on a claim for
negligence, a plaintiff must establish the following essential elements: (1) a duty of care
owed by the defendant to the plaintiff, (2) conduct falling 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 cause. Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 364 (Tenn.
2009). The elements at issue in this case are duty, breach, and proximate cause. We will
address each of those elements in turn.

                                            Duty

       Whether Defendant’s conduct constitutes a breach of duty depends on the nature
and scope of its duty of care. Defining the existence and scope of a duty is a question of
law to be determined by the court. Cullum v. McCool, 432 S.W.3d 829, 832-33 (Tenn.
2013). In its motion for summary judgment, Defendant asserted that it did not owe a duty
of care to Mr. Haynes in light of the undisputed fact that he was not in its custody at the
time of his suicide. Defendant argued that, because Mr. Haynes was not in its custody at
the time, his suicide was an intervening act that relieved it of liability as a matter of law.
We, like the trial court, decline to adopt such a broad rule.

        Generally, individuals do not have an affirmative duty to act to protect others from
dangers or risks except for those that they themselves have created. Satterfield v.
Breeding Insulation Co., 266 S.W.3d 347, 355 (Tenn. 2008). The fact that a person
realizes or should realize that some action on his or her part is necessary for another’s aid
or protection does not, by itself, impose on that person a duty to take that action. Id.
This long-standing principal of tort law, often referred to as the “no duty to act rule” or
the “no duty to rescue rule,” has been subject to considerable criticism for the harsh
results it can produce. Id. For example, a passerby on a bridge who cannot be bothered
to throw a rope to a person in distress in the waters below may face justifiable societal
outrage but no legal liability. Id. at 358.

                                            -8-
        Despite its criticism, Tennessee courts have preserved the no duty to act rule in an
effort to prioritize individual liberty over altruism in circumstances where the defendant
did not create the risk of harm. Id. They have, however, carved out certain exceptions to
the no duty to act rule in an effort to mitigate some of its harshest applications. These
exceptions arise when the defendant has a special relationship with either the person who
is the source of the danger or the person who is foreseeably at risk from the danger. Id. at
359 (citing Biscan v. Brown, 160 S.W.3d 462, 478 (Tenn. 2005); Bradshaw v. Daniel,
854 S.W.2d 865, 871 (Tenn. 1993)). The special relationship creates an affirmative duty
to either control the person who is the source of the danger or protect the person who is
endangered. Id. (citing Restatement (Second) of Torts §§ 314A, 314B, 315).
Accordingly, the law provides that while “an actor is always bound to prevent his acts
from creating an unreasonable risk to others, he is under the affirmative duty to act to
prevent another from sustaining harm only when certain socially recognized relations
exist which constitute the basis for such legal duty.” Turner v. Jordan, 957 S.W.2d 815,
818 (Tenn. 1997) (quoting Bradshaw, 854 S.W.2d at 871).

       One class of special relationship that creates an affirmative duty to act is that in
which an individual or entity voluntarily takes custody of another under circumstances
that deprive the other of his or her normal opportunities for protection. See Downs ex rel.
Downs v. Bush, 263 S.W.3d 812, 820 (Tenn. 2008) (citing Restatement (Second) of Torts
§ 314A). Tennessee courts have recognized in both prison and psychiatric hospital
settings that custodians have an affirmative duty to prevent the occurrence of foreseeable
harm to individuals in their custody. Cockrum v. State, 843 S.W.2d 433, 436-37 (Tenn.
Ct. App. 1992) (citations omitted). As such, the suicide death of an inmate may give rise
to a compensable claim for negligence. Atkinson v. State, 337 S.W.3d 199, 205 (Tenn.
Ct. App. 2010).

        Generally, prison officials only have a duty to exercise ordinary and reasonable
care for the protection of the persons in their custody. Id. (quoting Cockrum, 843 S.W.2d
at 436). “The scope of this duty does not generally extend to protecting prisoners from
self-inflicted injury or death.” Id. (quoting Cockrum, 843 S.W.2d at 436). “However, it
can be expanded to include self-inflicted injury or death when the prison officials know
or should know that the prisoner might harm himself or herself.” Id. (quoting Cockrum,
843 S.W.2d at 436).

       Defendant argues that it did not owe a duty of care to protect Mr. Haynes at the
time of his suicide because its special relationship with him ended when he was released.
Defendant cites two cases from other jurisdictions in support of its argument: Coscia v.
Town of Pembroke Massachusetts, 659 F.3d 37 (1st Cir. 2011) and Clemets v. Heston,
485 N.E.2d 287 (Ohio Ct. App. 1985). In Coscia, the decedent repeatedly threatened to
kill himself during his arrest and incarceration. Coscia, 659 F.3d at 38. After several
                                           -9-
hours of incarceration, he was released on his own recognizance without being examined
by a doctor. Id. at 39. He committed suicide fourteen hours later. Id. The decedent’s
estate sued the town and police officers, claiming due process violations based on their
failure to have the decedent evaluated by medical professionals before releasing him. Id.
at 38. The court dismissed the claim, explaining that “although the existing law does
recognize a custodial duty to take some preventive action, its rationale does not extend
official protective responsibility as far as the plaintiff would take it.” Id. at 40. In
Clemets, the decedent was arrested for driving while intoxicated. Clemets, 485 N.E.2d at
289. During the arrest, the police officer observed a shotgun in plain view on the car
seat. Id. at 289-90. After issuing a citation, the officer released the decedent, who was
apparently still intoxicated, back to his car. Id. at 290. Shortly thereafter, the decedent
used the shotgun to commit suicide. Id. The decedent’s estate filed a wrongful death
action against the officer, and the court dismissed the claim. Id. at 294. In doing so, the
court recognized that a special relationship arises when an officer takes custody of an
arrestee and the officer has an affirmative duty to protect the arrestee from harm for the
duration of that relationship. Id. at 291. The court explained, however, that special
relationships do not extend indefinitely, and the law does not pose any additional duty on
custodial officers to ensure that released prisoners are free from danger in any form. Id.
at 293. The court concluded that dismissal was appropriate because the complaint did not
allege a breach of duty during the special relationship and the officer did not owe any
additional duty to the decedent after the special relationship between them ended. Id.

       Defendant’s reliance on Coscia and Clemets is misplaced because both cases were
ultimately resolved on the issue of causation, not the absence of a duty. The court in
Coscia held that, in the absence of some allegation that the defendants gave rise to or
intensified the decedent’s suicidal inclination or weakened his instinct for self-
preservation, the chain of proximate causation ended with his release. Coscia, 659 F.3d
at 41. Likewise, the court in Clemets recognized that the police officer could be held
liable for the decedent’s suicide if he negligently released the decedent from custody.
Clemets, 485 N.E.2d at 292. It simply held that the officer had no reason to anticipate
that the decedent would commit suicide immediately after his release and therefore acted
reasonably under the circumstances. Id. at 293-94.

        It is, of course, important to note that Mr. Haynes was no longer in custody at the
time of his suicide, but that fact is relevant to the issue of causation, not duty. While
special relationships do not extend indefinitely, a breach of duty during the special
relationship may give rise to a compensable claim for negligence even though the
resulting injury or loss actually occurs after the special relationship has ended. To
conclude otherwise would allow prison officials to avoid liability for the foreseeable
death of a suicidal inmate by simply releasing the inmate. It might also encourage
inmates to feign suicidal ideations in effort to obtain an early release. Obviously, no
                                          - 10 -
reasonable person would endorse such behavior. We therefore conclude that Defendant
assumed a duty to protect Mr. Haynes from foreseeable harm when it took him into its
custody, regardless of whether he was still in its custody when the harm occurred.

        Having concluded that Defendant owed a duty of care to Mr. Haynes, we think it
prudent, given the specific facts of the case, to clarify the scope of its duty. Plaintiff
contends that Mr. Haynes’s suicidal threats conferred on Defendant a heightened duty of
care to protect him from self-inflicted harm. She contends that Defendant breached that
heightened duty when it prematurely released Mr. Haynes without calling Centerstone for
a mental health evaluation or notifying his family of his suicidal threats. Because all of
the alleged negligent conduct pertains to Defendant’s decision to release Mr. Haynes, our
inquiry is limited to determining what duty Defendant owed Mr. Haynes at the time of his
release.

        Defendant acknowledges that Mr. Haynes’s suicidal threats triggered a heightened
duty of care to protect him from self-inflicted harm. Defendant contends, however, it
was relieved of that heightened duty after Mr. Haynes stated to Officer Sanders that he
was just drunk and did not mean his suicidal threats. Defendant argues that it was no
longer foreseeable that Mr. Haynes intended to commit suicide at that time, and it
therefore only had a duty to exercise ordinary and reasonable care for his protection at
that time. Plaintiff, on the other hand, contends that Mr. Haynes’s statements to Officer
Sanders did not relieve Defendant of its heightened duty because there is a factual dispute
regarding Mr. Haynes’s sobriety during that conversation. In support of that argument,
Plaintiff relies on her own deposition testimony that Mr. Haynes appeared to be
intoxicated when she picked him up after his release from Defendant’s custody. Plaintiff
also points out that Officer Sanders had no formal training in determining the intoxication
level of inmates. Plaintiff therefore argues that she, rather than Officer Sanders, would
have been more readily able to assess Mr. Haynes’s sobriety at the time.

       Even viewing the facts and inferences to be drawn from them in the light most
favorable to Plaintiff, no rational trier of fact could conclude that Mr. Haynes’s suicide
was foreseeable to Defendant at the time of his release. Although the suicidal statements
Mr. Haynes made when he arrived at the jail triggered Defendant’s heightened duty to
protect him from self-inflicted harm, it is important to note that Mr. Haynes was highly
intoxicated when he made them. Several hours later, Mr. Haynes told Officer Sanders
that he was just drunk and did not mean it when he expressed a desire to commit suicide.
Officer Sanders testified that Mr. Haynes was joking and did not appear to be intoxicated
during that interaction. Although Plaintiff contends that there is a factual dispute
regarding Mr. Haynes’s sobriety during his conversation with Officer Sanders, the
testimony she cites in support of that assertion amounts to little more than speculation:

                                          - 11 -
       Q And what made you believe [Mr. Haynes] was intoxicated [when you
       picked him up after his release]?

       A His expression and I could smell the alcohol on him.

       Q Well, if he had been drinking the night before, he might still have the
       smell of alcohol about him, correct?

       A Possibly.

       Q So, what was it about him that made you think he was still intoxicated?

       A Well, it was the timeline. From the time he was picked up and the
       amount of alcohol he had on him and the time he was released from jail
       wouldn’t be enough to clear alcohol from a person’s system.

       Q Had [Mr. Haynes’s cousin] informed you on how much he had had to
       drink?

       A No. Because today he had to think about it.

          ...

       Q Did he tell you it was vodka?

       A No. I didn’t have any idea what they were drinking, where they were
       drinking.

       Q Okay. And, so, you really didn’t know how much he had had to drink
       either?

       A Not at the time, no.

       Additionally, Mr. Haynes’s cousin, who was also present when Plaintiff picked up
Mr. Haynes after his release, testified that Mr. Haynes did not appear to be intoxicated at
the time:

       Q Okay. When you drove back to Sharyn Haynes’s house the next
       morning, did he appear to be drunk then?


                                          - 12 -
        A He looked really rough. I don’t know whether or not he had blood
        alcohol content. From what I could tell, I didn’t think he was drunk. He
        wasn’t like he was when he was arrested.

        Q Was he slurring his speech?

        A Not that I can remember.

            ...

        Q Okay. But as you sat beside him in the car, were there any of the tell-
        tale signs that you had seen before that would indicate he was drunk?

        A No.

        In any event, the relevant inquiry is not whether Mr. Haynes was actually still
intoxicated when he spoke with Officer Sanders. Rather, it is whether Defendant had any
objective reason to foresee that Mr. Haynes might commit suicide following his release
from custody. In our view, it did not. It is undisputed that Mr. Haynes was intoxicated to
the point of passing out when he arrived at the jail. He vomited in the patrol car and
required assistance to walk into the jail. It was in that highly intoxicated state that he
made statements that indicated his desire to commit suicide. While Plaintiff suggests that
Mr. Haynes may have still been intoxicated when he disavowed those statements several
hours later, she has not presented any evidence to rebut the testimony of Officer Sanders
that, objectively, Mr. Haynes appeared to be fine during their conversation. Like the trial
court, we see no reason, regardless of Mr. Haynes’s actual mental state, why Defendant
should have given more credence to the statements Mr. Haynes made when he was
intoxicated to the point that he could not walk without assistance than it did to those he
made when, according to the uncontroverted testimony of Officer Sanders, he seemed
fine. Likewise, despite the fact that Mr. Haynes also stated while intoxicated that he was
depressed and had attempted suicide in the past, it was not foreseeable to Defendant that
he would commit suicide if he was released in light of his express statement to the
contrary approximately six hours later.3

        3
         We think it is worth noting that Plaintiff’s own deposition testimony reflects her awareness of
the dramatic effect that alcohol could have on Mr. Haynes’s demeanor:

        A [H]e got drunk one night and . . . he was talking about running the car head-on into a
        semi, and evidently got quite drunk at the time. He was never like that sober. The only
        time I ever saw him like that was when he was drunk and he was very drunk.

            ...
                                                - 13 -
       For those reasons, we conclude that Defendant’s heightened duty to protect Mr.
Haynes from self-inflicted harm expired during Mr. Haynes’s conversation with Officer
Sanders. Because Mr. Haynes expressly disavowed his previous suicidal threats during
that conversation, Defendant did not have any reason to anticipate or foresee that Mr.
Haynes still had a desire to commit suicide. As such, Defendant only had a duty to
exercise ordinary and reasonable care for Mr. Haynes’s protection for the remainder of
his time in its custody and in releasing him.

                                              Breach

       Having established the nature and scope of Defendant’s duty of care in releasing
Mr. Haynes, we consider now whether Plaintiff has presented evidence from which a
rational trier of fact could find that Defendant breached that duty. In doing so, we note
that prison officials are not insurers of inmate safety. Atkinson, 337 S.W.3d at 205;
Cockrum, 843 S.W.2d at 438. Their conduct must only be reasonably commensurate
with the inmate’s known condition at the time. Atkinson, 337 S.W.3d at 205; Cockrum,
843 S.W.2d at 438. If the allegedly negligent conduct of the prison staff is not clearly
improper, expert proof outlining the precise scope of the staff’s duty and evaluating the
adequacy of the staff’s conduct is essential, and the plaintiff cannot recover without it.
Atkinson, 337 S.W.3d at 205; Cockrum, 843 S.W.2d at 438. In our view, it was not
clearly improper for Defendant to release Mr. Haynes without calling Centerstone or
notifying his family of his suicidal threats in light of our determination that Defendant no
longer had a heightened duty to protect him from self-inflicted harm at the time of his
release. For that reason, Plaintiff was required to present expert proof to establish a
breach of duty in this case.


       Q Did you ever sense, you know, the depression?

       A When he was sober, he was always happy and cheerful and, like I said, let’s go do
       something kind of person.

       Q So his demeanor would change –

       A Drastically.

       Q Okay. Drastically between drunk and sober?

       A Yes.

       Q And, so, to your knowledge, it was only on those occasions when he was drunk that
       he had the depressive thoughts of suicide?

       A As far as I knew, yeah.
                                               - 14 -
       Plaintiff submitted the expert witness report of Ron McAndrew in response to
Defendant’s motion for summary judgment. As it relates to the allegation that Defendant
acted negligently by prematurely releasing Mr. Haynes, Mr. McAndrew’s report states:

      It is my professional opinion that Mr. Haynes, an extremely intoxicated,
      underage citizen with stated suicidal threats, without medical referral and/or
      treatment and without safe transportation, and without continuity of care,
      was improperly released only a few hours following his book-in at the
      Wayne County Jail.

As it relates to the allegation that Defendant acted negligently in declining to call
Centerstone prior to releasing Mr. Haynes, Mr. McAndrew’s report states:

      The jail failed to exercise ordinary care by not calling Centerstone or any
      other medical professional at the time of these suicidal ideations and at the
      very least when he woke up the next morning from intoxication.

Mr. McAndrew’s report does not contain any opinion related to Defendant’s failure to
notify Mr. Haynes’s family of his suicidal threats.

       The opinions set forth in Mr. McAndrew’s report are not sufficient to overcome
summary judgment. While the courts are not permitted to determine the weight to be
given to an expert opinion at the summary judgment stage, the opinion must be based on
“trustworthy facts or data sufficient to provide some basis for the opinion.” Church v.
Perales, 39 S.W.3d 149, 166 (Tenn. Ct. App. 2000). An expert opinion lacking such a
basis cannot create a genuine dispute of material fact at the summary judgment stage. Id.
at 167. Here, the facts underlying the opinions set forth in Mr. McAndrew’s report are
inconsistent with the record. Although Mr. McAndrew’s report states that Defendant
failed to exercise ordinary care when it declined to call Centerstone at the time of Mr.
Haynes’s suicidal statements, it is undisputed that Mr. Haynes was highly intoxicated
when he made those statements and that Centerstone did not provide services to
intoxicated inmates until they were no longer in an intoxicated state. In apparent
recognition of that fact, Mr. McAndrew’s report states that Defendant should have, at the
very least, called Centerstone when Mr. Haynes woke up from his intoxicated state. It is
undisputed, however, that Mr. Haynes disavowed his suicidal statements when he woke
up from his intoxicated state. As we stated previously, we see no reason why Defendant
should have given more credence to the statements Mr. Haynes made when he was
intoxicated to the point that he could not walk without assistance than it did to those he
made when he, according to the uncontroverted testimony of Officer Sanders, seemed
fine. Because it was no longer foreseeable that Mr. Haynes would harm himself, no call
to Centerstone was necessary. Likewise, the record does not support the facts underlying
                                          - 15 -
the opinion set forth in Mr. McAndrew’s report that Defendant acted improperly in
releasing Mr. Haynes. While Mr. McAndrew’s report does not provide a specific basis
for its assertion that Mr. Haynes’s release was “improper,” it states that Mr. Haynes was
“an extremely intoxicated, underage citizen with stated suicidal threats” at the time. The
uncontroverted evidence in the record demonstrates, however, that Mr. Haynes seemed
fine at the time of his release, was over the age of majority, and had disavowed his
previous suicidal threats. There is no evidence in the record to suggest that Defendant’s
decision to release Mr. Haynes was otherwise improper.

        In any event, Plaintiff only argues on appeal that Defendant’s alleged conduct
constituted a breach of its heightened duty to protect Mr. Haynes from foreseeable self-
inflicted harm. As we explained above, Defendant was only required to exercise ordinary
and reasonable care for Mr. Haynes’s protection at the time of his release. For that
reason, and because the facts underlying the opinions set forth in Mr. McAndrew’s report
are inconsistent with the uncontroverted evidence in the record, we are satisfied that
Plaintiff failed to present evidence sufficient to establish a breach of duty at the summary
judgment stage. We therefore conclude that the trial court’s grant of summary judgment
to Defendant was appropriate.

                                    Proximate Cause

        Despite our conclusion with regard to the element of breach, we also consider
whether the record contains evidence from which a rational trier of fact could find that
Defendant’s conduct was the proximate cause of Mr. Haynes’s death. Proximate cause
focuses on “whether the policy of the law will extend responsibility for that negligent
conduct to the consequences that have occurred.” King v. Anderson Cnty., 419 S.W.3d
232, 246 (Tenn. 2013). It is the means by which courts put a limit on the causal chain of
liability such that, even though the injury would not have happened but for the
defendant’s conduct, the defendant will not be held liable for injuries that were not
substantially caused by or were not a reasonably foreseeable result of their conduct. Id.
at 246-47. To establish the element of proximate cause in a negligence case, the plaintiff
must demonstrate that (1) the defendant’s conduct was a “substantial factor” in bringing
about the harm complained of, (2) there is no rule or policy that relieves the wrongdoer
from liability because of the manner in which the negligence resulted in the harm, and (3)
the harm giving rise to the action could have been reasonably foreseen or anticipated by a
person of ordinary intelligence. Hale v. Ostrow, 166 S.W.3d 713, 719 (Tenn. 2005).
        The evidence in the record conclusively establishes that Defendant’s conduct was
not a substantial factor in bringing about Mr. Haynes’s death. Plaintiff has not alleged or
presented any evidence that Defendant intensified Mr. Haynes’s depression or desire to
commit suicide. Likewise, Plaintiff has not alleged or presented evidence that Defendant
weakened Mr. Haynes’s desire to live or prevented him from seeking aid on his own after
                                           - 16 -
his release. To the contrary, the record reflects that Defendant provided Mr. Haynes with
the contact information for Centerstone when it released him. Thus, it does not appear
that Mr. Haynes was released from Defendant’s custody in any worse a position than he
was when he entered it.

       The record also conclusively establishes that Mr. Haynes’s suicide was not
reasonably foreseeable at the time of his release. No person is expected to protect against
harms or events that he or she cannot reasonably anticipate or foresee or that are so
unlikely to occur that the risk, although recognizable, would commonly be disregarded.
Rains v. Bend of the River, 124 S.W.3d 580, 593 (Tenn. Ct. App. 2003). As a general
matter, there is much less reason to anticipate intentional misconduct than negligence. Id.
As such, harm is even less foreseeable when it results from an act of the injured party so
obviously fraught with peril that it should deter one of reasonable intelligence. Id. (citing
Chattanooga Light & Power Co. v. Hodges, 70 S.W. 616, 618 (Tenn. 1902)). In this
case, the issue of foreseeability hinges on Mr. Haynes’s behavior and demeanor at the
time Defendant released him without calling Centerstone or notifying his family of his
suicidal threats. It is undisputed that Mr. Haynes was not a minor; he was over 18 years
old. Officer Sanders testified that Mr. Haynes seemed fine and was even joking and
laughing prior to his release. Additionally, Plaintiff and Mr. Haynes’s cousin saw Mr.
Haynes between his release and the time he committed suicide. Clearly, neither of them
suspected that he was suicidal at the time. While liability might have been appropriate if
Defendant had released Mr. Haynes with full knowledge that he would commit suicide
shortly thereafter, there is no evidence that Mr. Haynes’s conduct or demeanor should
have given Officer Sanders any reason to foresee or anticipate that he would do so.

       Generally, the act of suicide is, as a matter of law, an intervening act that breaks
the chain of causation and relieves a negligent actor of liability if the decedent knew and
understood the nature of his or her act or the act resulted from a moderately intelligent
power of choice. See White v. Lawrence, 975 S.W.3d 525, 530 (Tenn. 1998) (citations
omitted). In Lancaster v. Montesi, the Tennessee Supreme Court sustained the dismissal
of a wrongful death action in which the complaint alleged that the defendant had
deliberately tormented the decedent and continued to abuse her unmercifully despite the
fact that she had attempted to commit suicide the day before and threatened to do so
again. 390 S.W.3d 217, 219 (Tenn. 1965). Although the complaint alleged that the
decedent was “bereft of reason” at the time of her suicide, the court concluded that it
could not be said that she did not know and understand the nature of her act. Id. at 222.
Later, in a similar case, this Court emphasized that the cause of action in a wrongful
death action is that which the decedent would have had if he or she had survived.
Weathers v. Pilkinton, 754 S.W.2d 75, 78 (Tenn. Ct. App. 1988). Because the decedent
would not be able to maintain a cause of action against someone else for his or her

                                           - 17 -
deliberate, calculated, and voluntary act, the decedent cannot pass a cause of action to his
or her beneficiaries. Id.

       While suicide may give rise to a compensable claim for negligence in the custodial
setting, it is–as we alluded to previously–relevant to the issue of causation to note that
Mr. Haynes was no longer in Defendant’s custody when he committed suicide.
Defendant’s duty to prevent foreseeable harm to Mr. Haynes while he was in its custody
was a substitute for the duty that Mr. Haynes would have otherwise borne for himself. In
the absence of a clear causal connection, that substitute duty will not support liability
against Defendant for harm that occurred to Mr. Haynes after his release. There is no
evidence of such a causal connection in this case.

       Although no one can know what is going through the mind of a person at the time
he or she commits suicide, there is no evidence in the record that Mr. Haynes did not
know and understand the nature of his action or that his action did not result from a
moderately intelligent power of choice. It is undisputed that Mr. Haynes suffered from
depression and had suicidal ideations long before he was taken into Defendant’s custody.
Mr. Haynes’s cousin testified that Mr. Haynes suffered from depression for several years
prior to his death and spoke often about committing suicide. Mr. Haynes was, by all
accounts, an intelligent adult who, unfortunately, made a voluntary decision to end his
own life. In our view, a rational trier of fact could only conclude that Mr. Haynes knew
and understood the consequences of that decision. Thus, despite the tragedy that
followed his release from Defendant’s custody, we find no basis in the record for holding
Defendant liable for Mr. Haynes’s deliberate, calculated, and voluntary act. We therefore
conclude that the trial court’s decision to grant Defendant’s motion for summary
judgment was appropriate.

                                     V. CONCLUSION

      For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this
appeal are taxed to the appellant, Sharyn Haynes, and her surety, for which execution
may issue if necessary.


                                                    _________________________________
                                                    ARNOLD B. GOLDIN, JUDGE




                                           - 18 -
