                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    November 7, 2000 Session

           BILLY HEMBREE, JR., ET AL. v. STATE OF TENNESSEE
                         Appeal from the Tennessee Claims Commission
                                          No. 201295

                     No. M2000-00767-COA-R3-CV - Filed May 30, 2001

Lester Peavyhouse, having been found not guilty by reason of insanity after an April 1985 attack
upon his sister with a hatchet, was committed by the Circuit Court of Stewart County to the Middle
Tennessee Mental Health Institute (“MTMHI”) in Nashville for involuntary care and treatment on
March 1, 1988. In January 1989, he was transferred from MTMHI to Luton Community Mental
Health Center subject to a mandatory outpatient therapy plan. In July 1989, he was transferred to
Vanderbilt Mental Health Center Adult Outpatient Services section. Ultimately, Peavyhouse
enrolled as a student at Austin Peay State University with out patient therapy through Harriet Cohn
Center in Clarksville. On October 31, 1991, Peavyhouse entered a private residence in Clarksville
with a .410 gauge shotgun and shot to death Misty Harding and Billy Hembree, seriously wounded
David Ross and Robert Huff, and committed aggravated assaults upon Charity Baggett, Deanna
Shepherd, Walter Scott Palmer, and Jeffery Underwood. Peavyhouse was convicted on all charges
and sentenced to two consecutive life terms in prison plus fifty-six years.1 The estates of Harding
and Hembree, together with the other victims of the October 31, 1991 assaults, brought suit against
the State of Tennessee before the Tennessee Claims Commission charging MTMHI with negligence
in the January 23, 1989 release of Peavyhouse from a secure treatment facility. The Tennessee
Claims Commission rendered judgment in favor of the claimants and the State of Tennessee
Appeals. We affirm the judgment of the Claims Commission.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Tennessee Claims Commission
                                             Affirmed
WILLIAM B. CAIN , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J.,M.S., and
WILLIAM C. KOCH , JR., J., joined.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Michael W.
Catalano, Associate Solicitor General and David T. Whitefield, Senior Counsel, Nashville,
Tennessee, for the appellant, State of Tennessee.

William B. Raiford, III, Clarksdale, Mississippi, for the appellees, Billy D. Hembree, Sr., and Sharon
Hembree, Wrongful Death Beneficiaries and Natural Parents of Billy Hembree, Jr., Deceased;
Richard Harding and Kathryn Harding, Wrongful Death Beneficiaries and Natural Parents of Misty
Harding, Deceased; Robert L. Huff, Jr., and David Ross.



       1
               Mr. Peavyho use committed suicide while incarc erated on these sentences.
                                           OPINION

        Much of the history of this case can be gleaned from the previous opinion of this Court,
reversing summary judgment for the State by the Claims Commission and the opinion of the
Supreme Court of Tennessee, sustaining this Court as reported in Hembree v. State, 925 S.W.2d 513
(Tenn. 1996). Further enlightenment is evidenced by State of Tennessee v. Peavyhouse, C.C.A. No.
01C01-9409-CC-00307, 1996 WL 129840 (Tenn. Crim. App. Mar. 22, 1996).

        After the hatchet assault upon his sister, Peavyhouse was committed to Middle Tennessee
Mental Health Institute (“MTMHI”) by the Circuit Court of Stewart County under the provisions of
Tennessee Code Annotated section 33-7-301(a) on September 26, 1985. His prior history is set forth
in detail in the interview findings and staff conference report from the Forensic Services Division
(“FSD”) of MTMHI under date of October 18, 1985.

       Lester Peavyhouse, a 33-year-old divorced white male, was admitted to the Forensic
       Services Division of Middle Tennessee Mental Health Institute on September 6, 1985
       from the Stewart County Circuit Court pursuant to the provisions of T.C.A. 33-7-
       301(a). This was his fourth admission to MTMHI. He is charged with Assault with
       Intent to Commit Murder. Following medical, psychological, and psychiatric
       examinations he was staffed on October 4, 1985.

       Mr. Peavyhouse is alleged to have attacked his sister with a hatchet during a family
       argument. Regarding the alleged incident, Mr. Peavyhouse related that he had
       recently returned from Duluth, Minnesota where he had been incarcerated for second
       degree assault. On the day of the alleged offense, Mr. Peavyhouse reportedly was
       telling his brother and his brother’s girlfriend about having been threatened in the
       Duluth jail. According to Mr. Peavyhouse, his brother’s girlfriend stated “you can’t
       fight the Mafia”. Reportedly Mr. Peavyhouse became extremely angry over that
       statement, ordered them to leave, and started smashing up the furniture with the
       hatchet. Mr. Peavyhouse stated that his sister got in his way and he hit her in the
       head accidentally.

       According to information in the social history, Mr. Peavyhouse first came to the
       attention of the court in August, 1972, when he was charged with flag desecration.
       After four months of incarceration he was transferred to MTMHI where he remained
       from December 12, 1972 until May 24, 1973. His discharge diagnoses were Acute
       Schizophrenic Reaction (in remission) and Drug Dependence, hallucinogens (in
       remission). He was arrested in November, 1977 for assault with intent to commit
       murder. Mr. Peavyhouse was evaluated at FSD in connection with that charge and
       was found competent to stand trial, not judicially committable, with no support for
       an insanity defense. He was diagnosed at that time as Paranoid Personality. He was
       returned to FSD for further evaluation because his attorney felt that he was
       incompetent; however, the recommendations and diagnoses remained the same. In


                                               -2-
September, 1978, he pled guilty as part of a plea bargain agreement and was given
time served plus three years probation. Since his last admission to MTMHI in 1978,
Mr. Peavyhouse has been seen at Harriet Cohn and Plateau Mental Health Centers.
His arrest record since that time reflects numerous brief incarcerations for such
offenses as assault, criminal trespassing, malicious mischief, disorderly conduct, and
violation of probation. Most recently, he was charged with second degree assault in
Duluth, Minnesota, after he reportedly stabbed a man who refused him admission to
a shelter. While in jail, Mr. Peavyhouse reportedly got into a fight with another
inmate and received additional charges. Although an insanity defense was supported
in that case, Mr. Peavyhouse’s attorney reportedly advised him to plea bargain and
he was placed on probation for two years. He returned to Tennessee from Minnesota
in March, 1985.

During his current stay at FSD, Mr. Peavyhouse has been very paranoid and
delusional. His delusional system is extensive and involves his brother, his defense
attorney, the sheriff and staff at the Stewart County Jail, and some staff members at
FSD. His affect has been labile and frequently inappropriate to his thought content.
During interviews, he repeatedly stated that he heard people talking about him in the
hall and that staff members and other patients were conspiring to have him killed.
He asked on several occasions for permission to contact the TBI because he
overheard his female attorney being beaten and raped while he was in jail. He
appeared to be terrified of returning to the jail in Stewart County and asked
repeatedly to be sent to another jail upon his release from FSD. He stated that while
he was in jail he heard his brother telling the sheriff to beat him up and reported that
the sheriff thought he was Hitler and they (the sheriff’s department staff) were going
to hang him. Psychological testing indicated that Mr. Peavyhouse is functioning in
the upper limits of the average range of intellectual ability. The Bender protocol
contraindicated the presence of organicity or brain damage. MMPI data were
suggestive of a suspicious, evasive, and defensive individual who presents such
symptoms as ideas of reference, delusions, emotional lability, and anxiety. The
results of psychological testing, in conjunction with Lester’s behavior on the ward
and during interviews, are consistent with a diagnosis of paranoid schizophrenia.

It was determined that at the time of the alleged offense, Mr. Peavyhouse was
exhibiting Chronic Paranoid Schizophrenia, which is a severe mental illness
characterized by delusions and hallucinations of a grandiose and persecutory nature.
As a result of his severe mental illness, Mr. Peavyhouse’s capacity to appreciate the
wrongfulness of the alleged offense was substantially impaired as was his capacity
to conform his conduct to the requirements of the law. Therefore, the forensic
findings can support a defense of insanity pursuant to Graham vs. State (1977).

It was also concluded that Mr. Peavyhouse is not mentally competent to stand trial
at this time. Although he has an adequate understanding of judicial procedure, his


                                          -3-
       extensive delusional system would prevent him from consulting meaningfully with
       his attorney or participating in his own defense. He is in need of chemotherapy to
       restore his mental competence.

       Mr. Peavyhouse meets the requirements for judicial commitment pursuant to T.C.A.
       33-7-301(b) and 33-6-104 in that he is not competent to stand trial and is suffering
       from a mental illness directly resulting in his being harmful to himself and to others.
       Since little improvement has been noted during his stay at FSD, it is recommended
       that treatment be continued in a secure facility.

       It is recommended that, due to the serious nature of his mental illness, Mr.
       Peavyhouse should remain hospitalized at MTMHI-FSD until his judicial
       commitment hearing. His return to jail at this time is contraindicated due to his
       psychiatric condition.

       RECOMMENDATIONS:

       1. Not mentally competent to stand trial;
       2. Can support a defense of insanity.

       Peavyhouse was diagnosed on October 18, 1985 as “Axis I: Paranoid Schizophrenia, Chronic
295.32.”

        After treatment, MTMHI staff determined in June 1986 that Mr. Peavyhouse could be moved
to the less secure civil side of the facility and he was transferred to the civil side on July 15, 1986.
From this less secure facility, Peavyhouse twice “eloped” (escaped). Once again, the Circuit Court
of Stewart County ordered him readmitted to secure facility on November 25, 1986. On February
17, 1987, the treatment team decided Peavyhouse was competent to stand trial. At the trial on March
25, 1987, the Stewart County Circuit Court found Peavyhouse not guilty of the assault upon his sister
by reason of insanity at the time of the crime and the court returned him to the FSD of MTMHI for
mandatory diagnosis and evaluation pursuant to Tennessee Code Annotated section 33-7-303(a).
Following this diagnosis and evaluation, Peavyhouse was committed to the custody of MTMHI for
involuntary treatment of his mental illness. This was done on order of the Circuit Court of Stewart
County on March 1, 1988 when, after a hearing, the court found “by clear, unequivocal and
convincing evidence that the respondent is mentally ill and, because of this illness, poses a likelihood
of serious harm, and all available less drastic alternatives to commitment to a mental hospital or
treatment resource are unsuitable.”

       At that time, Peavyhouse was diagnosed as suffering from two conditions: (1) Axis I
Paranoid Schizophrenia and (2) Axis II Schizoid Personality Disorder.

       At the time of his January 23, 1989 discharge by MTMHI, it is the insistence of the State that
his Axis I Paranoid Schizophrenia was in remission, his Axis II Schizoid Personality Disorder was


                                                  -4-
not a “mental illness” within the meaning of Tennessee Code Annotated section 33-6-109(b), and
that his discharge from involuntary secure confinement was mandated by due process of law
considerations.

        This decision of January 29, 1989 and the “outpatient only” treatment of Peavyhouse
thereafter presents the decisive issue in this case.

       Following the events of October 31, 1991, the Claims Commission dismissed the case on
motion of the State finding that it lacked subject matter jurisdiction of a case involving a “former”
mental patient at a state facility because such persons are not “persons in the care, custody and
control” of the state as the statute requires. On appeal, this Court reversed the Commissioner’s
judgment holding that he construed the jurisdictional statute (T.C.A. § 9-8-307(a)(1)(E)) too
narrowly. The Supreme Court then granted the appeal of the State but affirmed the decision of this
Court holding “[h]owever, as did the Court of Appeals in its well-reasoned opinion, we conclude that
confinement in the literal sense is not necessarily a prerequisite to the invocation of the Claims
Commission’s jurisdiction under Tenn. Code Ann. § 9-8-307(a)(1)(E).” Hembree v. State, 925
S.W.2d 513, 515 (Tenn. 1996).

       In holding that the Claims Commission had erred in granting summary judgment to the State,
the Supreme Court held:

               The state is responsible for the proper care and control of patients within its
       mental health facilities. See Tenn.Code Ann. § 33-6-109(b), (c) (Supp. 1995)
       (discharge criteria). This responsibility extends to the “release” decision; that is, the
       decision to release a patient into the community. This decision, if negligently made,
       may expose the State to liability. Such a construction is consonant with the
       legislature’s expressed intent that such decision be made carefully and cautiously.
               ....
               In the case before us, the claimants charge that the state was negligent in its
       decision to release Peavyhouse. At the time he was released, Peavyhouse was clearly
       within the “care, custody and control” of the state because, as the intermediate court
       correctly noted, “[r]elease decisions can only involve persons who are in the State’s
       care, custody and control.” 1995 WL 50066, slip op. at 8. Moreover,

               [e]xcept for several circumstances not applicable here, state officials
               have authority over the confinement of these individuals and exercise
               their professional judgment concerning the conditions of confinement
               and release from custody. Decisions to release or to relax or extend
               the conditions of confinement relate directly to the care, custody, and
               control of these inmates or patients. If made negligently, these
               decisions could result in injury or harm not [only] to the inmate or
               patient but also to [others]. Id.



                                                 -5-
              Because the alleged negligence arises out of acts or omissions which
              were alleged to have occurred at a time when Peavyhouse was clearly
              within the “care, custody and control” of the state, the claimants have
              stated a cause of action upon which relief can be granted; the
              Commission clearly has jurisdiction over this claim.

Id. at 517-18 (footnote ommitted).

        The case was remanded for trial to the Tennessee Claims Commission and on February 29,
2000, Commissioner W. R. Baker issued a thirty-eight page memorandum finding the state negligent
in the release of Lester Peavyhouse.

       The Commission summarized:

       1.     MTMHI negligently overlooked T.C.A. § 36-6-202(d)(4) about
              giving notice of the Mandatory Outpatient Treatment plan to the
              committing Court, and disregarded the Mental Health and Mental
              Retardation Department’s “Community Mental Health Standards”
              about tracking and monitoring MOT plans.
       2.     MTMHI negligently gave no consideration whatever to balancing
              patients’ interest in deinstitutionalization against the public’s interest
              in keeping dangerous people confined.
       3.     MTMHI knew that Peaveyhouse was dangerous and negligently
              released him anyhow.              MTMHI negligently disregarded
              Peaveyhouse’s (“Axis II”) personality disorder, a certified mental
              illness, both in its treating him and in its release decisions. MTMHI
              knew Peaveyhouse was a bright and manipulative liar, and it still
              negligently based some of its crucial decisions about his treatment
              and release on his own statements. MTMHI negligently sent only
              five pages of Peaveyhouse’s records to his “aftercare providers”;
              MTMHI negligently told Luton Center and Vanderbilt nothing about
              Peaveyhouse’s history of violence or his history of avoiding his
              medication, so that they were left to guess at what they needed
              information about and left to scratch to get it.
       4.     Worst of all, MTMHI’s whole philosophy about Peaveyhouse’s
              treatment was negligent, mainly because of its mindless devotion to
              deinstitutionalization. Dr. Bernet said, “Our society has pushed to
              has (sic) patients like this living in the community... Unfortunately
              sometimes these patients... do things that are dangerous or violent; I
              think we can live with that...” But this statement is not true: our
              society has not pushed to have patients like this living in the
              community, and the law (as shown in §§315 and 319 of the
              Restatement 2nd of Torts, cited in Judge Koch’s opinion in this


                                                 -6-
                claim) says otherwise. Nobody wants people like Peaveyhouse
                “living in the community” except an elite who are particularly
                concerned with mental illness like Dr. Okpaku and Dr. White. As
                Judge Koch said, returning admittedly dangerous people to the
                community is inconsistent with public policy and good sense.

              The Commission finds that the decisions to release Peaveyhouse were made
       negligently and did result in serious injury and harm to the public (and that
       Peaveyhouse himself was ill-served by wrongful deinstitutionalization). The
       Commission finds that in this claim the State is guilty of “Negligent care, custody,
       and control of persons,” namely, Lester Peaveyhouse.

        Our standard of review of the findings of fact by the Commissioner is established by Rule
13(d) of the Tennessee Rules of Appellate Procedure providing: “Unless otherwise required by
statute, review of the findings of fact of the trial court in civil actions shall be de novo upon the
record of the trial court, accompanied by a presumption of the correctness of the finding, unless the
preponderance of the evidence is otherwise.” No presumption of correctness attaches to the trial
court’s conclusions of law. Tennessee Farmers Mutual Ins. Co. v. Moore, 958 S.W.2d 759 (Tenn.
Ct. App. 1997).

         Also, “[i]t is well settled that ‘the weight, faith and credit to be given any witnesses’
testimony lies in the first instance with the trier of fact who has the opportunity to observe the
manner and demeanor of the witnesses as they testify’ ” and the credibility of witnesses accorded by
the trial judge is given great weight on appeal. Doe A. v. Coffee County Bd. of Educ., 925 S.W.2d
534, 537 (Tenn. Ct. App. 1996) (citing Koch v. Koch, 874 S.W.2d 571, 577 (Tenn. Ct. App. 1993)).

          After Peavyhouse assaulted his sister with a hatchet, he was examined by physicians at
MTMHI and the Circuit Court of Stewart County was informed that an insanity defense could be
supported. After trial, in which physicians from MTMHI testified in support of the insanity defense,
Peavyhouse was found not guilty by reason of insanity. After this finding, Peavyhouse was subjected
to an involuntary commitment proceeding in which MTMHI physicians testified that he was subject
to involuntary commitment in accordance with Tennessee Code Annotated section 33-6-104.
Following this hearing, the Circuit Court for Stewart County, Tennessee found by clear, unequivocal
and convincing evidence that Peavyhouse was mentally ill and because of such mental illness, posed
a likelihood of serious harm and all less drastic alternatives to commitment to a mental hospital were
unsuitable. In diagnosis at MTMHI he was found to suffer from (1) Axis I Paranoid Schizophrenia
and (2) Axis II Schizoid Personality Disorder.

        Commitment having been ordered on these findings by the trial judge, future discharge of
Mr. Peavyhouse was subject to the provisions of Tennessee Code Annotated section 33-6-109. This
statute provides that the patient is entitled to be discharged if (1) he is no longer mentally ill or (2)
his mental illness is in remission and he does not pose a likelihood of serious harm.



                                                  -7-
        In support of Peavyhouse’s discharge pursuant to Tennessee Code Annotated section 33-6-
109, on January 23, 1989, the State asserts first that his Axis I Paranoid Schizophrenia was in
remission and second, that his Axis II Schizoid Personality Disorder did not constitute “mental
illness” and under such conditions, failure to discharge Peavyhouse would be in violation of the due
process clause of the Fourteenth Amendment to the Constitution of the United States under the
holding of the United States Supreme Court in Foucha v. Louisiana, 504 U.S. 71 (1991). Reliance
on Foucha is misplaced if the Axis I Paranoid Schizophrenia was not in remission or if the Axis II
Schizoid Personality Disorder is a “mental illness” within the meaning of the discharge criteria for
persons who are “mentally ill” as provided by Tennessee Code Annotated section 33-6-109.

        In the Foucha case, the state was attempting an involuntary civil commitment because the
defendant was potentially dangerous while admitting that he was not mentally ill. In the case at bar,
Plaintiffs have alleged and the Claims Commission has held that Peavyhouse was not in remission
of his Axis I Paranoid Schizophrenia and that his admittedly continuing Axis II Schizoid Personality
Disorder was a mental illness within the meaning of the involuntary commitment statutes. The
decisive question is whether or not the evidence preponderates against the findings of the Claims
Commission on both of these findings. We hold that it does not.

       According to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition
(1995): “A personality disorder is an enduring pattern of inner experience and behavior that deviates
markedly from the expectations of an individual’s culture, is pervasive and inflexible, has onset in
adolescence or early childhood, is stable over time, and leads to distress or impairment.”

       Thus is defined the Axis II Schizoid Personality Disorder that afflicted Peavyhouse. This
condition, which was supported by all of the medical testimony, continued to exist until the day he
died.

         That same authority defines his Axis I condition: “Schizophrenia is a disturbance that lasts
for at least six months and includes at least one month of active-phase symptoms (i.e. two or more
of the following: delusions, hallucinations, disorganized speech, grossly disorganized or catatonic
behavior, negative symptoms).”

        No where in the Tennessee statutes dealing with involuntary commitment or release from
involuntary commitment is the term “mental illness” defined. In seeking to distinguish Axis I and
Axis II, the state’s expert, Dr. Kwentus, agreed with the Claims Commissioner’s assertion that the
difference between an Axis I type of clinical disorder and an Axis II type personality disorder was
that in Axis I, the subject was “crazy” and in Axis II, the subject was “damn mean.”

        The position of the state that the Axis II condition is “untreatable” is meaningless in both a
constitutional and statutory context.

       The United States Supreme Court has held:



                                                 -8-
       While we have upheld state civil commitment statutes that aim both to incapacitate
       and to treat, see Allen, supra, we have never held that the Constitution prevents a
       State from civilly detaining those for whom no treatment is available, but who
       nevertheless pose a danger to others. A State could hardly be seen as furthering a
       “punitive” purpose by involuntarily confining persons afflicted with an untreatable,
       highly contagious disease. Accord, Compagnie Francaise de Navigation a Vapeur
       v. Louisiana Bd. of Health, 186 U.S. 380, 22 S.Ct. 811, 46 L.Ed. 1209 (1902)
       (permitting involuntary quarantine of persons suffering from communicable
       diseases). Similarly, it would be of little value to require treatment as a precondition
       for civil confinement of the dangerously insane when no acceptable treatment
       existed. To conclude otherwise would obligate a State to release certain confined
       individuals who were both mentally ill and dangerous simply because they could not
       be successfully treated for their afflictions. Cf. Greenwood v. United States, 350 U.S.
       366, 375, 76 S.Ct. 410, 415, 100 L.Ed. 412 (1956) (“The fact that at present there
       may be little likelihood of recovery does not defeat federal power to make this initial
       commitment of the petitioner”); O’Connor v. Donaldson, 422 U.S. 563, 584 95 S.Ct.
       2486, 2498, 45 L.Ed.2d 396 (1975) (Burger, C.J., concurring) (“[I]t remains a
       stubborn fact that there are many forms of mental illness which are not understood,
       some which are untreatable in the sense that no effective therapy has het been
       discovered for them, and that rates of ‘cure’ are generally low”).

Kansas v. Hendrix, 521 U.S. 346, 366 (1997).

        The controlling question is whether or not the Axis II condition is a “mental illness”
(treatable or untreatable - - curable or incurable) within the meaning of the Tennessee Involuntary
Civil Commitment Statutes.

         Not only does the expert proof offered by the claimants establish a sound foundation for the
Claims Commission holding that an Axis II condition is a “mental illness,” but such finding is
clearly supported by the testimony on cross-examination of the State’s own expert, Dr. Burnett. He
testified:

       Q.      [By Mr. Raiford] All right, well, let’s move forward then, Doctor. Do you
               agree with Dr. Okpaku’s Axis 2 diagnosis with respect to Lester Peavyhouse?
       A.      Well, I’d have to look and see what it is.
       Q.      Well, you testified about it earlier. You referred to it in your notebook. It is
               the schizoid personality disorder?
       A.      Right. That’s what he said on his discharge summary. Well, I agree that Mr.
               Peavyhouse had some kind of personality disorder. And different records talk
               about his being paranoid, schizoid or perhaps anti-social.
               I’m not - - probably the best label is what’s just called the mixed
               personality disorder with different features. In other words, I guess
               on the information that I have I would say he definitely had a


                                                 -9-
     personality disorder, and that I would probably call it a mixed
     personality disorder with paranoid, antisocial and schizoid features.
Q.   Do you agree that a schizoid personality disorder is a mental illness?
A.   Well, not - - it depends on how you use the term. It is a mental illness in the
     sense that it’s in the list of diagnosis that are used in psychiatry, the
     diagnostic and statistical manual. However, it is not a mental illness in
     certain legal settings. . . .
     ....
Q.   Well, we’d have to look at the specific law to know the context in which it
     is used. But schizoid personality disorder is a recognized mental illness,
     recognized by psychiatry as a mental illness, is it not?
A.   It is a psychiatric term that identifies a mental illness in a psychiatric context.
Q.   And you use the term the diagnostic manual. What’s the proper word for
     that?
A.   The full name is the Diagnostic And Statistical Manual, and it’s currently
     called the fourth Edition.
Q.   And who compiles that?
A.   It’s put out by the American Psychiatric Association.
Q.   Is that a national association or organization of psychiatrists?
A.   Yes, it is.
Q.   Is that the foremost organization of psychiatrists in the United States?
A.   Yes, it is.
Q.   Are you a member of that organization?
A.   Yes.
Q.   And if we wanted to go and find schizoid personality disorder, we could find
     that illness in that manual?
A.   Yes.
Q.   Could we find paranoid personality disorder in that manual?
A.   Yes.
     ....
Q.   Could we find mixed personality disorders in that manual?
A.   Yes.
Q.   Are you of the opinion that Mr. Peavyhouse was cured of his schizoid
     personality disorder at the time of his discharge in January of 1989?
A.   No, I don’t think he was.
Q.   That was still present, was it not?
A.   Well, some form of personality disorder was still present.
Q.   And not all personality disorders are the same, but in Mr. Peavyhouse’s case,
     his personality disorder made him potentially violent and dangerous, did it
     not?
A.   Yes.
     ...



                                       -10-
       Q.      Well, particularly in his case where we have numerous, repeated, violent
               assaults, you would say that he is a substantial risk if he is released into the
               community of doing further violence at some point in time, would you not?
       A.      Yes, I think that he had a number of illegal acts, even in jail several times.
               And mental patients who have been antisocial and have been in jail a number
               of times are likely to end up in jail again.
       Q.      You would agree that at the time Mr. Peavyhouse was discharged in 1989 it
               would have been reasonable to say that there was a likelihood that he would
               commit further violence in the future?
       A.      Well, I’ve already said that, that there was some likelihood. . . .

        The finding of the Claims Commission that the Axis II condition suffered by Peavyhouse at
the time of his release on January 29, 1989 was a “mental illness” is fully supported by the record
in this case and certainly the evidence does not preponderate against the findings of the Claims
Commission in this respect.

       The record, and particularly the expert testimony offered in the case, supports the findings
of the Claims Commission that the Axis I condition, Paranoid Schizophrenia, which the State
concedes is a mental illness, was not in remission at the time of the January 29, 1989 release of
Peavyhouse. In this respect, Plaintiff’s expert, Dr. Reisman, testified:

       Q.      [By Mr. Raiford] Doctor, you have heard Mr. Whitefield’s opening
               statements that Mr. Peavyhouse made a systematic improvement in his
               condition during the time he was admitted to MTMHI and was an appropriate
               candidate for release at the time he was released in January 1989. Do you
               agree with those assertions?
       A.      No, I don’t.
               ....
       Q.      Doctor, in your opinion, was Mr. Peavyhouse still mentally ill at the time he
               was discharged from MTMHI in January of 1989?
       A.      Yes, he was.
       Q.      And in what respect?
       A.      Well, he continued to be a paranoid schizophrenic. He remained delusional
               ....
       Q.      Doctor, in your opinion in January of 1989 when Mr. Peavyhouse was
               released, did he pose a substantial likelihood of serious harm to either himself
               or others in the community?
       A.      Yes, he did.
               ....
       Q.      In your opinion, Doctor, was voluntary outpatient therapy a suitable, less
               drastic alternative for the treatment of Lester Peavyhouse in January of 1989?
       A.      Not for Lester Peavyhouse.
       Q.      Why not?


                                                -11-
       A.      Well, as I say, he still was not in remission from his illness. And the man’s
               behavior still indicated a high threat of dangerous behavior.

       On cross-examination, the State’s expert witness, Dr. Kwentus, testified:

       Q.      [By Mr. Raiford] Were you aware from the records that Mr. Peavyhouse was
               delusional within a few weeks of the time he was discharged?
       A.      Yes.
       Q.      Were you aware that after he was discharged he was regarded as one of
               Luton’s most difficult aggressive patients?
       A.      Yes, I was.
       Q.      In your opinion does that indicate a patient who does not have a - - well,
               whose mental illness is in remission and who has been adequately treated at
               the time of discharge?
       A.      His mental illness was in remission in the sense that if you compared how he
               was at the time of discharge and how he was when he was admitted, he was
               substantially improved. He obviously needed ongoing treatment and would
               need ongoing treatment for the rest of his life. There is no way that he would
               be discharged without needing ongoing treatment. . . .
               ....
       Q.      You are aware from the review of the records that even up to the time of
               discharge, Mr. Peavyhouse was paranoid, delusional, assaultive, aggressive,
               unwilling to cooperate with the staff, and some evidence that he was not able
               to understand his mental illness, he had poor insight, poor judgment, and
               refused to cooperate with his discharge planning?
       A.      Some of the things I would agree with. It was quite a long list. So I don’t
               know I would agree with every statement you made, but a lot of the things
               that you said I would agree with.
               ....
       Q.      Well you agree that Mr. Peavyhouse has a number of very, very serious
               assaultive behaviors that are noted even in your own report?
       A.      There is absolutely no doubt about it.
       Q.      [In] Dr. Reason’s (sic) words, this was, quote, a bad dude wasn’t it?
       A.      He could be.
       Q.      And he certainly if released to the community could pose a very substantial
               and real danger to people around him, could he not?
       A.      He had that potential. I think that’s just self-evident from his past that he had
               a potential for causing harm to people.

       The Commissioner heard the testimony of all of the experts, both on direct examination and
cross-examination. The record reflects that the experts for the State on direct examination strongly
supported the decision of MTMHI in the release to outpatient care of Peavyhouse on January 29,
1989. The Commissioner judged the strengths and weaknesses of the testimony for all parties and


                                                 -12-
judged the credibility of the witnesses, which is both his prerogative and his duty with his credibility
judgments entitled to much weight in this Court. Koch v. Koch, 874 S.W.2d 571 (Tenn. Ct. App.
1993). The evidence does not preponderate against the finding of the Claims Commission that the
Axis I Paranoid Schizophrenia mental illness of Peavyhouse was not in remission at the time of the
January 29, 1989 release.

       The State argues that the length of time elapsing between the release of Peavyhouse on
January 29, 1989 and the events of October 31, 1991 renders his acts of the latter date not reasonably
foreseeable and, thus, not a proximate cause of the October 31, 1991 tragedy.

        This argument is without merit as all one really has to do is look to the October 18, 1985 staff
conference report of MTMHI itself and the testimony of all the medical experts to reasonably foresee
that Peavyhouse was a time bomb waiting to explode.

        “The foreseeability requirement is not so strict as to require the tortfeasor to foresee the exact
manner in which the injury takes place, provided it is determined that the tortfeasor could foresee,
or through the exercise of reasonable diligence should have foreseen, the general manner in which
the injury or loss occurred.” McClenahan v. Cooley, 806 S.W.2d 767,775 (Tenn. 1991) (citing
Roberts v. Robertson County Bd. of Ed., 692 S.W.2d 863, 871 (Tenn. Ct. App. 1985); Wyatt v.
Winnebago Industries, Inc., 566 S.W.2d 276, 280-81 (Tenn. Ct. App. 1977)).

        The State further argues that the Claims Commission erred in holding that the State had care,
custody and control over Peavyhouse after his release of January 29, 1989 from MTMHI care to non-
state community mental health centers.

        This holding of the Claims Commission is immaterial to the outcome of the case. The
claimants allege first and foremost that the decision of January 29, 1989 to release Peavyhouse into
outpatient care was a negligent decision proximately causing the tragedy of October 31, 1991. In
the previous appeal of this case, the Supreme Court held: “This responsibility extends to the ‘release’
decision; that is, the decision to release a patient into the community. This decision, if negligently
made, may expose the State to liability.” Hembree v. State, 925 S.W.2d 513, 517 (Tenn. 1996).
After hearing all of the evidence the Claims Commission held that the “release” decision was a
negligent decision and proximately caused the October 31, 1991 events. The evidence does not
preponderate against the decision of the Claims Commission in this respect as both the Court of
Appeals and the Supreme Court in the previous appeal held: “At the time he was released,
Peavyhouse was clearly within the ‘care, custody and control’ of the state because, as the
intermediate court correctly noted ‘[r]elease decisions can only involve persons who are in the
State’s care, custody and control.’ ” Id. (citing 1995 WL 50066, slip op. at 8).

      Much of the other argument by the State asserts the State’s lack of responsibility for
Peavyhouse after its decision to release him from secure facility on January 29, 1989. The Claims
Commission held that MTMHI was negligent in its failure to inform outpatient treatment facilities



                                                  -13-
of the history and dangerous propensities of Peavyhouse. While unnecessary to the decision in this
case, the record fully supports the finding of the Claims Commission in this respect.

        In a strange paradox, the State asserts through the clinical director, Dr. Jackson B. White, and
the coordinator at MTMHI, Lynn McDonald, that once the decision is made to release a patient to
outpatient therapy, MTMHI has no further responsibility and, in effect, washes its hands of the
patient. On the other hand, when confronted by indisputable evidence that subsequent to his release
to outpatient care, Peavyhouse had pulled a knife and threatened co-workers at Vanderbilt, Dr.
Jackson White testified:

       Q.      [By Mr. Raiford] Do you recall when I took your deposition I asked you
               about an incident that occurred at Vanderbilt during the time Mr. Peavyhouse
               was being seen and treated by Vanderbilt?
        A.     Uh-huh, yes.
        Q.     He pulled a knife on someone?
        A.     You described it to me.
        Q.     Do you recall what your response was when I asked you what you would
               have done had you been notified of that?
        A.     Had we been notified by the treating physician professional that Lester
               needed to come back to the hospital we would have taken him immediately.
               I believe that is what I told you.
        Q.     Are you aware of what information, if any, Vanderbilt had with regard to Mr.
               Peavyhouse’s prior violent history or acts?
        A.     No.
               ....
        Q.     . . . Question: My question to you was if you were aware of that information
               what would this facility have done?
               Answer: We would recommend bringing him right here with one certificate
               and we would have filled out the other certificate. He would have been
               admitted in a heartbeat.
               ....
        A.     That’s true.

        The evidence certainly does not preponderate against the finding of the Claims Commission
as to negligence by MTMHI in its failure to properly inform outpatient facilities of the violent history
of Peavyhouse and its failure to properly communicate with outpatient treatment facilities to whom
it had referred Peavyhouse.

        The State insists that the findings of State v. Peavyhouse, No. 01C01-9409-CC-00307, 1996
WL 129840 (Tenn. Crim. App. 1996) (determining that Peavyhouse was not insane at the time of
the October 31, 1991 crimes for which he was convicted) bars any civil finding of state liability for
any negligence relative to the January 29, 1989 release of Peavyhouse or the failure to monitor his
outpatient after care. A finding that Peavyhouse was not insane for purposes of the criminal


                                                 -14-
proceeding is not equivalent to a finding that he was not mentally ill. Although Peavyhouse was
mentally ill, he was found not insane permitting the criminal court to find Peavyhouse guilty of the
crimes for which he was convicted. Mental illness and legal insanity are not one in the same. It
suffices to say that none of the claimants in this case were legal parties to the criminal action and
neither res judicata nor collateral estoppel are applicable to this case. Hayes v. Civil Service Comm’n
of Metro Gov’t., 907 S.W.2d 826 (Tenn. Ct. App. 1995).

         Finally, the State asserts discretionary function governmental immunity. This argument was
not raised in the trial court prior to the previous appeal nor raised in the appellate courts on the
previous appeal, nor raised in the Claims Commission on remand. It appears for the first time in the
appellate brief of the State on the present appeal. “An issue not raised at trial cannot be raised for
the first time on appeal.” Mitts v. Mitts, 39 S.W.3d 142, 146 (Tenn. Ct. App. 2000) (citing Sparks
v. Metropolitan Gov’t of Nashville and Davidson County, 771 S.W.2d 430, 434 (Tenn. Ct. App.
1989)).

        The decision of the Claims Commission is in all respects affirmed the case remanded for
collection of judgments. Costs on appeal are assessed against the State of Tennessee.




                                                        ___________________________________
                                                        WILLIAM B. CAIN, JUDGE




                                                 -15-
