                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                        Assigned on Briefs September 17, 2013

           SHANNON RALEY, INDIVIDUALLY AND AS NEXT OF KIN OF
             TIFFANY RALEY, DECEASED v. CITY OF KNOXVILLE

                    Appeal from the Circuit Court for Knox County
                       No. 1-203-12     Dale Workman, Judge


             No. E2013-01063-COA-R3-CV-FILED-OCTOBER 31, 2013


This action presents the question of whether a claim properly may be brought against the City
of Knoxville (“the City”) pursuant to the Governmental Tort Liability Act (“GTLA”) under
circumstances where a tree located on the real property of a private landowner fell and
caused the death of a motorist traveling on a city street. The trial court dismissed the claim,
finding that the City maintained immunity pursuant to the GTLA and the public duty
doctrine. Plaintiff appeals. We affirm the trial court’s dismissal of the claim.

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

T HOMAS R. F RIERSON, II, J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., P.J., and J OHN W. M CC LARTY, J., joined.

James K. Scott, Knoxville, Tennessee, for the appellant, Shannon Raley.

Ronald E. Mills, Deputy Law Director, Knoxville, Tennessee, for the appellee, City of
Knoxville.

                                         OPINION

                           I. Factual and Procedural Background

        Plaintiff, Shannon Raley, filed the case at bar as husband and next of kin of Tiffany
Raley (“Decedent”), who died when a tree fell on her vehicle as she was traveling on a city
street in South Knoxville. The tree was located on the property of Brett and Barbara
Johnson. Mr. Raley alleged that the tree exhibited a large crack in its trunk and was “leaning
heavily towards” the public road. A claim initially was filed against the Johnsons, and the
City of Knoxville was later added as a defendant through the filing of an amended complaint.
By means of a subsequently filed second amended complaint, it was alleged that the City was
liable pursuant to the GTLA, codified at Tennessee Code Annotated §29-20-101 et seq.,
because the City street was unsafe due to the dangerous tree and also because a City
employee or agent had inspected the tree and did not have it removed. Mr. Raley alleged that
the City had received numerous neighborhood complaints regarding the dangerous condition
of the tree. Mr. Raley further averred that the City had adopted policies in an Urban Forest
Management Plan (“Plan”) requiring immediate removal of this tree. The second amended
complaint contained allegations that the Plan undertook to protect individuals from trees that
“may be close to or have the dangerous propensity to endanger individuals on public
roadways controlled by the City by removing them from private property.” Mr. Raley further
alleged that “as a result of the negligent and reckless inactions of the agents/employees and
the City,” the tree fell, causing the death of Ms. Raley.

        The City filed a motion to dismiss, asserting that (1) there was no allegation in the
complaint that any property of the City was in a dangerous or defective condition because
the tree was located on the real property of the Johnsons and (2) the complaint did not allege
the negligence of an employee of the City and the existence of a duty owed by the City. The
City asserted that Mr. Raley merely alleged that the tree was “near the public road” and that
Mr. Raley’s claim admitted the tree was located on private property. The City claimed
immunity from suit pursuant to the GTLA and the public duty doctrine.

       The trial court granted the motion to dismiss, finding the City immune pursuant to
both the GTLA and the public duty doctrine. Mr. Raley timely appealed.

                                    II. Issues Presented

      Mr. Raley presents the following issues for our review, which we have restated as
follows:

       1.     Whether the trial court improperly granted the City’s motion to dismiss,
              pursuant to Tennessee Rule of Civil Procedure 12.02(6), by ruling that
              the City cannot be liable based on the Tennessee Governmental Tort
              Liability Act.

       2.     Whether the trial court improperly granted the City’s motion to dismiss,
              pursuant to Tennessee Rule of Civil Procedure 12.02(6), by ruling that
              Mr. Raley’s claim was subject to the public duty doctrine and that no
              special relationship or duty exception applied.



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                                   III. Standard of Review

       As our Supreme Court has elucidated:

       A Rule 12.02(6) motion challenges only the legal sufficiency of the complaint,
       not the strength of the plaintiff’s proof or evidence. The resolution of a
       12.02(6) motion to dismiss is determined by an examination of the pleadings
       alone. A defendant who files a motion to dismiss “‘admits the truth of all of
       the relevant and material allegations contained in the complaint, but . . . asserts
       that the allegations fail to establish a cause of action.’”

       In considering a motion to dismiss, courts “‘must construe the complaint
       liberally, presuming all factual allegations to be true and giving the plaintiff
       the benefit of all reasonable inferences.’” A trial court should grant a motion
       to dismiss “only when it appears that the plaintiff can prove no set of facts in
       support of the claim that would entitle the plaintiff to relief.” We review the
       trial court’s legal conclusions regarding the adequacy of the complaint de
       novo.

Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 425-427 (Tenn. 2011)
(internal citations omitted).

                            IV. Governmental Tort Liability Act

        The GTLA was enacted to “codify the general common law rule that ‘all
governmental entities shall be immune from suit for any injury which may result from the
activities of such governmental entities.’” Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 79
(Tenn. 2001)(quoting Tenn. Code Ann. §29-20-201(a) (2012)). As our Supreme Court has
stated, passage of the GTLA constituted “an act of grace through which the legislature
provided general immunity to governmental entities from tort liability but removed it in
certain limited and specified instances.” Kirby v. Macon, 892 S.W.2d 403, 406 (Tenn. 1994).
When immunity is removed, “any claim for damages must be brought in strict compliance
with the terms” of the Act. Tenn. Code Ann. §29-20-201(c).

       As relevant hereto, pursuant to Tennessee Code Annotated §29-20-203(a) (2012),
“[i]mmunity from suit of a governmental entity is removed for any injury caused by a
defective, unsafe, or dangerous condition of any street, alley, sidewalk or highway, owned
and controlled by such governmental entity.” Tennessee Code Annotated §29-20-203(b)
provides that said section “shall not apply unless constructive and/or actual notice to the
governmental entity of such condition be alleged and proved . . . .” A subsequent section of

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the GTLA removes immunity for “injury proximately caused by a negligent act or omission
of any employee within the scope of his employment . . . .” Tenn. Code Ann. §29-20-205
(2012). This section includes numerous exceptions, for example, when the employee is
exercising or fails to exercise a discretionary function, or when the employee makes an
inadequate or negligent inspection of property. Tenn. Code Ann. §29-20-205(1), (4).

        Mr. Raley asserts that the City should be held liable, pursuant to Tennessee Code
Annotated §29-20-203(a), because a large tree with a crack in its trunk leaning toward the
street created an unsafe roadway condition. The trial court ruled that there could be no
liability, however, because “the tree at issue was not owned by the City of Knoxville, nor was
it located on property owned by, under the control of or subject to a right-of-way in favor of
the City.” We agree.

       As stated above, “[i]mmunity from suit . . . is removed for any injury caused by a
defective, unsafe, or dangerous condition of any street . . . owned and controlled by such
governmental entity.” Tennessee Code Annotated §29-20-203(a). The only allegation of
danger or a safety concern in this case is that there was a tree growing on private property
and leaning toward the street. The tree was not alleged to exist on property owned or
controlled by the City. While this Court has recognized that a duty on the part of a
governmental entity to maintain its roadways may be “likely extended to maintaining
obstructions located above the roadway” in Graham v. Bradley County, No.
E2012-02369-COA-R3-CV, 2013 WL 5234240 at *7(Tenn. Ct. App. Sept. 17, 2013), there
has been no allegation in the case at bar that this tree constituted an obstruction located above
the roadway.

       In Graham, the plaintiffs were injured when a tree growing on private property fell
on their car while they were driving on a county road. Id. The plaintiffs filed suit against the
county, alleging liability under both Tennessee Code Annotated §29-20-203(a) for the unsafe
condition of a street and Tennessee Code Annotated §29-20-205 for the negligence of a
county employee in failing to maintain the roadway. Id. This Court ruled that there was no
negligence on the part of a county employee as would impose liability pursuant to Tennessee
Code Annotated §29-20-205. Id. This Court also determined that, with regard to the
allegation of the unsafe condition of a street, immunity was not removed because there was
no actual or constructive notice to the county pursuant to Tennessee Code Annotated §29-20-
203(b) of the unsafe condition. Id.

       In this case, the subject tree was described as exhibiting a large crack in its trunk and
leaning heavily toward the street. The tree was not, however, alleged to create an obstruction
above or overhanging the roadway. The tree was growing on private property. Mr. Raley
did not allege that this tree was located on property belonging to the City or even property

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in which the City had an easement or any other right. See, e.g., Howell v. City of Lenoir City,
No. 03A01-9704-CH-00127, 1997 WL 412124 at *3 (Tenn. Ct. App. July 24, 1997). Taking
the allegations of Mr. Raley’s pleadings as true, we conclude that he has failed to allege
sufficient facts to show that the City had a duty to maintain or manage this tree belonging to
a private landowner.

        As this Court has previously explained, claims brought pursuant to Tennessee Code
Annotated §29-20-203(a) have three essential elements: (1) the City owns or controls the
location or instrumentality alleged to have caused the injury; (2) the location or
instrumentality is defective, unsafe, or dangerous; and (3) the City has constructive or actual
notice of the condition. Graham, 2013 WL 5234240 at *7. In the case at bar, there was no
allegation that the City owned or controlled the instrumentality alleged to have caused the
injury, which would be the subject tree. Therefore, the trial court properly dismissed Mr.
Raley’s claim pursuant to Tennessee Code Annotated §29-20-203(a).

       Mr. Raley also asserted a claim pursuant to Tennessee Code Annotated §29-20-205
by alleging the negligence of certain City employees. According to the second amended
complaint, City employees were negligent by either failing to respond to complaints about
the dangerous tree or for inspecting the tree and then failing to take action to have it
removed, as it was allegedly an obvious risk to those utilizing the roadway below. We
determine, however, that where the City has no ownership of the tree and there is no
allegation that it was actually obstructing the roadway, the City would have no right or duty
to remove it.

       Mr. Raley argues that the City had a duty to remove the tree because the City was
aware of its condition, either through neighborhood complaints or an inspection performed
by a City employee. The fact that the City had notice that the tree was leaning toward the
roadway, however, does not give the City the right or a duty to remove it from the private
land of a citizen. As stated in Graham, we decline to impose upon the City a duty to manage
every tree that “leans toward” the roadway because to do so would place an insurmountable
burden on the City. Graham, 2013 WL 5234240 at *7. Tennessee Code Annotated §29-20-
203(a) states that immunity from suit is removed for the “defective, unsafe, or dangerous
condition of any street . . . owned and controlled by” the City, but the statute does not extend
to property near the street which is not owned or controlled by the City.

       Mr. Raley also contends that the City’s adoption of its Plan somehow created a duty
on the part of the City to manage this tree on private property. Mr. Raley’s second amended
complaint alleges, in pertinent part:

       Due to the Governmental Inspection by an employee/arborist/agent conducted

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       by the City of Knoxville of an extremely dangerous tree located on or about
       the residen[ce] of the former Co-Defendants, the City knew or should have
       known that the dangerous condition of the tree was such that it should have
       been cut down immediately pursuant to special nondiscretionary duties the
       City undertook by exercising control under its nondiscretionary Urban Forest
       Management Plan. Further, this Urban Forest Management Plan was based
       upon and created a duty/responsibility to protect the general individual citizens
       of Knoxville, including the individual Decedent Tiffany Raley, regarding
       hazardous conditions such as dangerous trees that may pose a danger to
       neighborhoods or nearby city roadways.

       Such Plan undertook this special nondiscretionary duty to take control and
       protect individuals from dangerous defective conditions (trees) that may be
       close to or have the dangerous propensity to endanger individuals on public
       roadways controlled by the City by removing them from private property.
       Thus, by having notice and under its nondiscretionary Policy, the defective tree
       was controlled by the City of Knoxville.

(Emphasis in original.)

        The City argues that Mr. Raley’s allegation that the adoption of an Urban Forest
Management Plan created a duty on the part of the City to remove this tree is actually a legal
conclusion, which this Court does not have to accept as true. We agree. Whether a duty
exists is a question of law and not a question of fact. See Turner v. Jordan, 957 S.W.2d 815,
818 (Tenn. 1997). In ruling on a motion to dismiss, “courts are not required to accept as true
assertions that are merely legal arguments or ‘legal conclusions’ couched as facts.” Webb,
346 S.W.3d at 427 (quoting Riggs v. Burson, 941 S.W.2d 44, 47–48 (Tenn.1997)). We
conclude that the trial court properly found that the City was immune from suit pursuant to
the GTLA.


                                  V. Public Duty Doctrine

       The public duty doctrine is an independent basis for governmental immunity that is
separate from the GTLA. See Chase v. City of Memphis, 971 S.W.2d 380, 385 (Tenn. 1998).
Our Supreme Court has previously explained that where both bases for immunity are
asserted, the court should first look to the GTLA. Id. Should immunity be found to exist
under the GTLA, there is no need to address immunity pursuant to the public duty doctrine.
Id. Having found that immunity exists in this case pursuant to the GTLA, the issue of
immunity pursuant to the public duty doctrine is pretermitted.

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                                     VI. Conclusion

        The trial court’s order dismissing Mr. Raley’s claims against the City is affirmed.
Costs on appeal are assessed to the Appellant, Shannon Raley. This case is remanded to the
trial court, pursuant to applicable law, for enforcement of the trial court’s judgment and
collection of costs assessed below.




                                                  _________________________________
                                                  THOMAS R. FRIERSON, II, JUDGE




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