                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                              July 2, 2003 Session

    ANGELA KAMILLE DRAPER, as parent, survivor and next friend of
    BRYANNA FAITH DRAPER, deceased, v. STATE OF TENNESSEE

                    Direct Appeal from the Tennessee Claims Commission
                     No. 20200993 Hon. Vance Cheek, Commissioner

                                      FILED SEPTEMBER 4, 2003

                                 No. E2002-02722-COA-R3-CV



In action against the State of Tennessee and a state employee, the Commissioner held he had no
jurisdiction of the claims. On appeal, we affirm.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the Claims Commission Affirmed.


HERSCHEL PICKENS FRANKS , J. delivered the opinion of the court, in which HOUSTON M. GODDARD ,
P.J., and CHARLES D. SUSANO, JR., J., joined.

Paul R. Wohlford, and Kenneth D. Hale, Bristol, Tennessee, for Appellant.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Heather
C. Ross, Senior Counsel, Nashville, Tennessee, for Appellee.



                                            OPINION


                Plaintiff, Angela Draper, parent and next friend of decedent, Bryanna Faith Draper,
filed a claim against Diane Stanley and the Tennessee Department of Children’s Services by lodging
a claim with the State Division of Claims Administration. The claim was then transferred to the
Claims Commission.

               Plaintiff’s claim alleges she filed a Complaint in Sullivan County Circuit Court
against Blue Ridge Radiology Associates, P.C., Holston Valley Regional Medical Center, and others,
for the wrongful death of her child, and that the defendants answered and alleged that Diane Stanley,
an employee of the Tennessee Department of Children’s Services, was assigned to investigate
suspected abuse of the child and that she failed to protect the child.

               The state moved to Dismiss on the grounds that the state was the only proper party
before the Claims Commission. Responding to the motion, The Commissioner found there was a
lack of subject matter jurisdiction because the cause of action fell outside the scope of authority
vested in the Claims Commission pursuant to Tenn. Code Ann. §9-8-307. He also dismissed Ms.
Stanley and DCS as parties, stating that pursuant to Tenn. Code Ann. §9-8-307(a)(1), only the state
can be sued in the Claims Commission. Plaintiff has appealed these rulings.

               In this case, the Commission determined that it lacked subject matter jurisdiction over
the claim presented. As the Supreme Court has recently explained:

               A motion to dismiss for lack of subject matter jurisdiction falls under Tennessee Rule
               of Civil Procedure 12.02(1). The concept of subject matter jurisdiction involves a
               court's lawful authority to adjudicate a controversy brought before it. Subject matter
               jurisdiction involves the nature of the cause of action and the relief sought, and can
               only be conferred on a court by constitutional or legislative act. Since a
               determination of whether subject matter jurisdiction exists is a question of law, our
               standard of review is de novo, without a presumption of correctness.

Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000).

                 As the Court discussed in Stewart v. State, 33 S.W.3d 785 (Tenn. 2000), in 1984 the
legislature enacted Tenn. Code Ann. §9-8-307, which waived the state’s sovereign immunity in
certain limited situations and created the Tennessee Claims Commission. The Court explained that
the legislative history behind the enactment showed that the legislature granted the Claims
Commission exclusive jurisdiction to hear claims against the state, and wanted to encourage people
to bring claims against the state in the Commission rather than in court. Id. The Commission has
“exclusive jurisdiction” over monetary claims against the state based on the acts or omissions of state
employees falling within certain categories. If the claim falls outside the categories specified, “then
the state retains its immunity from suit, and a claimant may not seek relief from the state.” Id. at
790; Tenn. Code Ann. §9-8-307(a)(1). The statute expresses that “It is the intent of the general
assembly that the jurisdiction of the claims commission be liberally construed to implement the
remedial purposes of this legislation.” Tenn. Code Ann. §9-8-307(a)(3). The Court recognized,
“although we have traditionally given a strict construction to the scope of the Commission’s
jurisdiction, we also recognize that our primary goal in interpreting statutes is ‘to ascertain and give
effect to the intention and purpose of the legislature.’” Stewart at 791. Thus the Court determined
that when deciding whether the Commission has jurisdiction to hear a claim under the statute, the
courts must give a liberal construction in favor of jurisdiction “but only so long as (1) the particular
grant of jurisdiction is ambiguous and admits of several constructions, and (2) the ‘most favorable
view in support of the petitioner’s claim’ is not clearly contrary to the statutory language used by the
General Assembly.” Id.


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                Plaintiff contends that the Commission had jurisdiction pursuant to Tenn. Code Ann.
§9-8-307(a)(1)(E), which states that the Commission has exclusive jurisdiction to determine a claim
against the state based on the acts or omissions of a state employee for the “negligent care, custody
and control of persons.” She further argues that the state should be held accountable for its failure
to remove the child from the home where she was being abused and place the child in state custody,
because the state has duty to protect abused children under the statutory scheme.

                She cites Stewart as supporting her position. In Stewart, the Court interpreted Tenn.
Code Ann. §9-8-307, and determined whether there had to be care, custody, and control for this
section to apply. In Stewart, the Court found that jurisdiction could be asserted under the section if
a state trooper “had a legal duty to control local police authorities at an arrest scene – irrespective
of whether he had actual care and custody over the deputies – and if he was negligent in the
fulfillment of that duty.” Id. at 792. The Court also stated “it is difficult to conceive that the
legislature intended to deny jurisdiction in cases where negligent control of a person by a state
employee resulted in injury, even though the injured person was not actually within the care or
custody of the state employee.” Id. Plaintiff continues that since DCS had a duty to remove Bryanna
from her home where she was being abused, but neglected to do so, then the state should be liable
for negligently failing to take Bryanna into state care and/or custody.

                 We cannot agree. First, plaintiff’s interpretation of the statute does not comport with
the language adopted by the Legislature. While plaintiff relies upon the construction utilized in
Stewart, the Stewart Court concentrated mainly on the issue of whether there could be state control
of a person without that person actually being the care and custody of the state. But the Court said,
if the state trooper in Stewart had a legal duty to control the deputies at the scene, or if he voluntarily
assumed such a duty, and was negligent in the exercise of that control of persons, then the state could
be liable (but the court ultimately found that no such duty existed.). Id. There is no similarity
between this limited factual scenario which the Stewart Court entertained and this case, because
there has been no showing of control, or care, or custody of any person that was exercised
negligently.

               Finally, while plaintiff argues that control, care, and custody should have been
exercised pursuant to the statutes dealing with dependent and neglected children and DCS’ ability
to effect a removal in those situations, this is, in essence, an argument that the state owed a duty to
protect Bryanna, and that by failing to comply with its own statutes regarding child abuse, plaintiff
now has a private right of action for this failure. This argument falls within the ambit of Tenn. Code
Ann. §9-8-307(a)(1)(N), which reads:

                        Negligent deprivation of statutory rights created under Tennessee law, except
                for actions arising out of claims over which the civil service commission has
                jurisdiction. The claimant must prove under this subdivision that the general
                assembly expressly conferred a private right of actions in favor of the claimant
                against the state for the state’s violation of the particular statute’s provisions;


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                We have held that an individual cannot state a cause of action based upon the
deprivation of a statutory “right” without pointing to express language in the statute which confers
a private right of action in the individual’s favor. See Tate v. State, 2003 WL 21026939 (Tenn. Ct.
App. Apr 14, 2003); A’la v. State, 2002 WL 1838162 (Tenn. Ct. App. Aug. 13, 2002); Taylor v.
State, 2001 WL 873470 (Tenn. Ct. App. July 31, 2001). The statutory scheme dealing with removal
of abused children does not grant a private right of action within the statute for the state’s failure to
remove. Tenn. Code Ann. §9-8-307 (a)(1)(N) does not confer jurisdiction for the stated claim, and
neither does Tenn. Code Ann. §9-8-307 (a)(1)(E). Plaintiff is couching a claim for deprivation of
statutory rights as a claim of negligent care in an effort to avoid having to point to language in the
statute which confers a right of action. We conclude there is no basis for jurisdiction pursuant to the
statute, and we affirm the Commission’s dismissing plaintiff’s claim.

               Any issues regarding the statute of limitations and tolling were pretermitted by the
Commission based on its finding that it did not have subject matter jurisdiction, and we pretermit
addressing these issues for the same reason.

               The Commission’s Judgment is affirmed and the cause remanded with the cost of the
appeal assessed to Angela Draper.




                                                        _________________________
                                                        HERSCHEL PICKENS FRANKS , J.




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