                     IN THE COURT OF APPEALS OF TENNESSEE
                          WESTERN SECTION AT JACKSON
                 ________________________________________________

WILLIAM J. CHASE, JR., As Administrator
C.T.A. of the Estate of BETTY LOU
                                                                FILED
STIDHAM, Deceased,
                                                               September 5, 1997
       Plaintiff-Appellee,
                                                               Cecil Crowson, Jr.
                                                                Appellate C ourt Clerk
Vs.                                          C.A. No. 02A01-211-CV-00327
                                             Shelby Circuit No. 36934 T.D.
THE CITY OF MEMPHIS,

      Defendant-Appellant.
___________________________________________________________________________

                  FROM THE CIRCUIT COURT OF SHELBY COUNTY
                 THE HONORABLE JAMES E. SWEARENGEN, JUDGE



                            John J. Heflin III, Bourland, Heflin,
                        Alvarez, Holley & Minor, PLC, of Memphis
                                   For Plaintiff-Appellee

                           Monice Moore Hagler, City Attorney
                        Robert M. Fargarson, Assistant City Attorney
                                   Martin W. Zummach
                                 For Defendant-Appellant




                                        AFFIRMED

                                        Opinion filed:




                                                            W. FRANK CRAWFORD,
                                                            PRESIDING JUDGE, W.S.



CONCUR:

DAVID R. FARMER, JUDGE

HOLLY KIRBY LILLARD, JUDGE

       This appeal involves a suit for wrongful death based on negligence under the Tennessee

Governmental Tort Liability Act, T.C.A. § 29-20-101 et seq. (1980) and for wrongful death

based on the creation of a special relationship and a nuisance. Defendant, the City of Memphis,
appeals from the trial court’s judgment in favor of plaintiff, William J. Chase, as Administrator

C.T.A. of the Estate of Betty Lou Stidham. The trial court, sitting without a jury, found that

plaintiff’s damages totaled $1,897,713.03, and that the City’s negligence caused 40 percent of

those damages. However, because of the application of the Tennessee Governmental Tort

Liability Act (hereinafter the Act), the court limited plaintiff’s recovery to $130,000.00, and

entered a judgment in that amount.

       The issues to be decided are whether the trial court erred in finding that the defendant’s

acts were not immune from liability under the Act; and if not immune, whether the trial court

erred in finding that the defendant’s negligence was a proximate cause of Betty Lou Stidham’s

death; whether the trial court erred in finding that the defendant assumed a special duty to Ms.

Stidham to undertake acts that would have protected her; and finally, whether claims against

municipalities arising out of the creation of a nuisance are encompassed within the Act; and if

so, whether the trial court erred in failing to grant plaintiff a recovery based on nuisance. The

plaintiff also asks this Court to consider whether the doctrine of sovereign immunity should be

discarded by the courts of Tennessee.

                                                I.

       Betty Lou Stidham died on June 18, 1990, after being mauled to death by two pit bull

dogs owned by her next door neighbor, Edwin Hill. Prior to this incident, Hill had a variety of

problems with the dogs. In February of 1988, the dogs attempted to attack Hill’s mother, and

on October 30, 1988, they succeeded. Both times, city employees, either police, paramedics, or

both, were called to the scene to assist. After the October 1988 incident, the police sent a report

about the attack to the City of Memphis Animal Shelter. Earl Grouchau, who owned Ms.

Stidham’s home prior to selling it to her, also had problems with Hill’s dogs. Grouchau testified

that Hill’s dogs caused him to fear for his life. He built a six-foot wooden fence on his side of

the property after Hill’s dogs began to burrow underneath the chain link fence. Undaunted, the

dogs continued to burrow underneath the new fence and enter his yard. After the pit bull dogs

chased his son, Grouchau complained to the City of Memphis Police. He complained to the

police about the dogs at least two times between 1987 and 1989 and also filed a complaint with

the Animal Shelter. He informed Robert Lee, the manager of the Animal Shelter, about his

                                                2
problems with Hill’s dogs.

       On January 3, 1990, Hill’s dogs attacked Ms. Stidham’s small dog, which resulted in Ms.

Stidham filing a “vicious animal complaint” with the Animal Shelter. As a result of the

complaint, Hill’s dogs were impounded for evaluation. While the dogs were in the care of the

city, the female dog attempted to attack an Animal Shelter worker, Pamela Topping. During the

evaluation period, Animal Shelter employees performed tests on the dogs to evaluate their

behavior and found that neither of the dogs exhibited overtly aggressive behavior.

       On January 23, 1990, a vicious animal hearing took place at the Animal Shelter. Despite

the fact that the Animal Shelter is supposed to keep records of dog attacks received from the

police, fire department, and hospitals, it had no record of the prior attacks by Hill’s dogs. Robert

Lee, who conducted the hearing, did not allow testimony to be elicited from Hill concerning the

violent nature of the dogs. Lee decided that the dogs were not “vicious” based on the tests

performed during the evaluation period. Lee concluded that the dogs did not show a vicious

nature toward humans or other animals and, therefore, the dogs were released to Hill. Instead,

Lee determined that the dogs were “dangerous” because they were capable of inflicting serious

injury. Lee issued a letter on January 29, 1990, which stated that the dogs were dangerous and

ordered that Hill correct any fencing deficiencies around his property and that Hill enroll himself

and the dogs in a basic obedience training program within 90 days. According to the letter,

Hill’s failure to do either would result in a declaration that the dogs were vicious and immediate

seizure of the dogs. The letter was sent to both Hill and Ms. Stidham.

        Hill’s dogs were released to him on January 26, 1990. On two occasions, Animal Shelter

employees, including Lee, visited Hill’s property to inspect the fencing. Lee ordered that the

back gate remain locked. Hill assured Lee that he would enroll the dogs in obedience school and

would inform the Animal Shelter when the training was complete. However, Hill never enrolled

the dogs in obedience school, and the Animal Shelter never followed up their order. Although

Hill did not comply with the administrative order, the Animal Shelter did not seize the dogs or

declare them vicious. The Animal Shelter did not receive any further complaints about Hill’s

dogs until the day of the tragedy of Ms. Stidham’s death.

        The trial court held that the defendant’s actions were not discretionary and, therefore,

                                                 3
were not immune under the Act. The trial court held that the defendant was negligent, and that

the negligence was a proximate cause of Ms. Stidham’s death. The court stated that the failure

to follow-up on the obedience training and the failure to pick up the dogs was an act of

negligence. The court also felt that the vicious dog hearing was conducted improperly.

However, the court stated that the inadequate inspection of the fence was not a proximate cause

of the death. In addition, the court rejected the claim of nuisance because there was no

affirmative act by the defendant. Finally, the trial court believed that the defendant assumed a

special duty to Ms. Stidham to undertake acts to protect her and negligently failed to take

reasonable and appropriate action to do so.

       Since this case was tried by the court sitting without a jury, we review the case de novo

upon the record with a presumption of correctness of the findings of fact by the trial court.

Unless the evidence preponderates against the findings, we must affirm, absent error of law.

T.R.A.P. 13(d). In Smith v. Bullington, 499 S.W.2d 649 (Tenn. App. 1973), this Court noted

that the review by this Court of the amount of a non-jury judgment for damages was governed

by then T.C.A. § 27-303, which has been supplanted by T.R.A.P. 13(d).

                                                II.

       This negligence action was brought pursuant to section 29-20-205 of the Act which

provides for removal of immunity for injury caused by negligent acts or omissions of

government employees. T.C.A. § 29-20-205 (1980).

       In order for plaintiffs to recover, the court must first determine if the city is immune from

suit, and if not, the plaintiffs must prove the necessary elements of negligence. Bowers v. City

of Chattanooga, 826 S.W.2d 427, 429 (Tenn. 1992). With respect to the threshold issue of

immunity, section 29-20-205 provides in pertinent part,

               Immunity from suit of all governmental entities is removed for
               injury proximately caused by a negligent act or omission of any
               employee within the scope of his employment except if the
               injury:
               (1) Arises out of the exercise or performance or the failure to
               exercise or perform a discretionary function, whether or not the
               discretion is abused;

                               *               *               *



                                                4
               (4) Arises out of a failure to make an inspection, or by reason of
               making an inadequate or negligent inspection of any property;

               (5) Arises out of the institution or prosecution of any judicial or
               administrative proceeding, even if malicious or without probable
               cause.

T.C.A. § 29-20-205.

        The defendant argues that their actions are included in all three cited sub-sections of

T.C.A. § 29-20-205 because the actions are discretionary, a failure to inspect or an inadequate

inspection, and arise out of a quasi-judicial or an administrative proceeding. We have three

actions of the defendant to consider: (1) the acts during the vicious dog hearing; (2) the

inspection of the fencing on the Hill property; and (3) the failure to follow-up the obedience

school training and the resulting failure to impound the dogs.

        As a preliminary matter, we believe that the actions of Lee during the vicious dog hearing

are immune from liability because they arise in an administrative hearing. Lee, sitting as judge,

had the opportunity to hear evidence, examine witnesses and hear arguments of informed counsel

and interested parties. The parties had the right to appeal his decision but neglected to exercise

this right. Even if Lee’s actions during the proceeding were negligent, they are immune from

liability.

        In addition, we will not consider whether the inspection of the fence on Hill’s property

properly is immune under the Act because the trial court held that the inspection was not a

proximate cause of the death. Even if we hold that the inspection is not immune and, therefore,

could have been negligent, the evidence does not preponderate against the trial court’s finding

of no proximate cause. Therefore, the only act of the defendant to consider is the decision not

to follow-up and enforce the obedience school requirement, which the defendant argues is a

discretionary act for which immunity has not been removed.

        In Bowers, the Tennessee Supreme Court provided guidance as to which activities fall

under the discretionary function and adopted the “planning-operational” test. Bowers, 826

S.W.2d at 430. Under the planning-operational test, decisions that rise to the level of planning

or policy-making are considered discretionary acts which do not give rise to tort liability, while

decisions that are merely operational are not considered discretionary acts and, therefore, do not


                                                5
give rise to immunity. Id. The Supreme Court outlined the analysis a court must follow to

determine if a decision falls under the discretionary function exception:

               Under the planning-operational test, discretionary function
               immunity does not automatically attach to all acts involving
               choice or judgment. Such an analysis recognizes that, to some
               extent, every act involves discretion. Rather, the underlying
               policy of governmental immunity is better served by examining
               (1) the decision-making process and (2) the propriety of judicial
               review of the resulting decision.

               A consideration of the decision-making process, as well as the
               factors influencing a particular decision, will often reveal whether
               that decision is to be viewed as planning or operational. If a
               particular course of conduct is determined after consideration or
               debate by an individual or group charged with the formulation of
               plans or policies, it strongly suggests the result is a planning
               decision. These decisions often result from assessing priorities;
               allocating resources; developing policies; or establishing plans,
               specifications, or schedules.

               On the other hand, a decision resulting from a determination
               based on preexisting laws, regulations, policies, or standards,
               usually indicates that its maker is performing an operational act.
               Similarly operational are those ad hoc decisions made by an
               individual or group not charged with the development of plans or
               policies. These operational acts, which often implement prior
               planning decisions, are not "discretionary functions" within the
               meaning of the Tennessee Governmental Tort Liability Act. In
               other words, "the discretionary function exception [will] not
               apply to a claim that government employees failed to comply
               with regulations or policies designed to guide their actions in a
               particular situation."
               Another factor bearing on whether an act should be considered
               planning or operational is whether the decision is the type
               properly reviewable by the courts. The discretionary function
               exception "recognizes that courts are ill-equipped to investigate
               and balance the numerous factors that go into an executive or
               legislative decision" and therefore allows the government to
               operate without undue interference by the courts.

Id. at 431 (citations omitted).

        The defendants ask us to rely upon a case decided by the Supreme Court of the State of

Florida, Carter v. City of Stuart, 468 So.2d 955 (Fla. 1985). In Carter, the Florida Supreme

Court was faced with a similar issue as in the case sub judice. In that case, the City of Stuart was

sued after a dog attacked and seriously injured a child. The plaintiff claimed that the city was

negligent because it failed to enforce its ordinance requiring impoundment of dangerous dogs.

The plaintiff also alleged that the city should have impounded the dog after prior incidents of

biting. Id. at 956. The Florida Supreme Court, applying the planning-operational test adopted

                                                 6
by Tennessee in Bowers, held that the city was immune because the decision not to enforce the

ordinance and impound the dog was discretionary. Id. at 957. The Court stated the rationale as

follows:

               A government must have the flexibility to set enforcement
               priorities on its police power ordinances in line with its budgetary
               constraints. Without the ability to make such choices a
               government must either pay the high cost of total enforcement or
               forego the exercise of its police power. Neither option serves the
               public interest.

               Deciding which laws are proper and should be enacted is a
               legislative function. How and in what manner those laws are
               enforced is, in most instances, a judgmental decision of the
               executive branch. The judicial branch should not trespass into the
               decisional process of either.
Id.

       In the case sub judice, the City of Memphis Animal Shelter was understaffed and

underfunded. The record indicates that the Shelter made the decision not to follow-up its

administrative order because of budgetary and manpower restraints. The Shelter established a

lower priority of enforcing this particular order. Although the results are unfortunate for the

plaintiff, this is the type of decision that was protected in Carter by the Florida Supreme Court.

We are impressed with the reasoning of the Florida Supreme Court. Our Supreme Court also

recognized the need to balance priorities and allocate resources. Bowers, 826 S.W.2d at 431.

Decisions that include the allocation of limited resources among competing needs do not need

interference from the courts, absent clear guidance from the legislature to the contrary. Helton

v. Knox County, 922 S.W.2d 877, 887 (Tenn. 1996).            Accordingly, we find that the city

performed a discretionary function for which it is immune. T.C.A. § 29-20-205(1). However,

this finding cannot end our inquiry.

                                               III.

       The trial court also decided that the defendants assumed a special duty to the decedent,

Ms. Stidham, to undertake actions to protect her from Hill’s dogs. The plaintiffs characterize

the Animal Shelter’s letter and administrative order as a promise to Ms. Stidham that went

unfulfilled. The defendant argues that the duty owed by the City of Memphis was to the public,

not to a specific individual. The defendant claims that the danger posed by the dogs was to the



                                                7
public at large, and that the ordinances in place governing vicious animals were enacted for the

general welfare. As stated above, the issue to be decided is whether the defendant assumed a

special duty to the plaintiff.

        In Ezell v. Cockrell, 902 S.W.2d 394, 400 (Tenn. 1995), the Tennessee Supreme Court

decided that the Act did not abolish the common law public duty doctrine. The Supreme Court

said, “[W]e are not persuaded that the Tennessee Governmental Tort Liability

Act, which actually reiterates and extends the rule of governmental immunity,

abolished, or was intended to abolish, the longstanding common-law public

duty doctrine.” Id.

        The public duty doctrine originated at common-law and shields a public employee from

suits for injuries that are caused by the public employee's breach of a duty owed to the public at

large. Id. at 397. A private citizen cannot maintain an action complaining of the wrongful acts

of public officials unless such private citizen avers special interest or a special injury not

common to the public generally. Id. (quoting Bennett v. Stutts, 521 S.W.2d 575, 576 (Tenn.

1976)). If the public employee’s duty is to the public, then the municipality cannot be held

liable. However, if that employee assumes a special relationship with an individual, the

municipality can be found liable for that employee’s negligent acts. Ezell, 902 S.W.2d at 401.

The Supreme Court stated,

                States adhering to the public duty doctrine, including Tennessee,
                have recognized an exception to the rule of no-liability that
                applies where a "special relationship" exists between the plaintiff
                and the public employee, which gives rise to a "special duty" that
                is more particular than the duty owed by the employee to the
                public at large.

                                 *              *                *

                Having decided that the public duty doctrine is viable, we
                consider it both desirable and necessary to retain, and further
                refine, the "special-duty" exception. After considering the
                various formulations of the doctrine, we conclude that a special
                duty of care exists when 1) officials, by their actions,
                affirmatively undertake to protect the plaintiff, and the plaintiff
                relies upon the undertaking; 2) a statute specifically provides for
                a cause of action against an official or municipality for injuries
                resulting to a particular class of individuals, of which the plaintiff
                is a member, from failure to enforce certain laws; or 3) the
                plaintiff alleges a cause of action involving intent, malice, or


                                                  8
                 reckless misconduct.

Id. at 401-02.

       In the case sub judice, the only applicable special duty would be when officials

affirmatively undertake to protect a plaintiff. There is no special statute; the plaintiff does not

allege intent or malice; and the record does not show reckless misconduct.             The plaintiffs

ask us to follow a case from the State of Washington, Champagne v. Spokane Humane Society,

737 P.2d 1279 (Wash. App. 1987). In Champagne, a neighbor’s pit bull dog brutally attacked

the Champagne’s child. The Humane Society had previously received numerous complaints

concerning these pit bull dogs, including at least ten from Ms. Champagne. Id. at 1281. The

Humane Society told Ms. Champagne that they would patrol the area and apprehend any stray

dogs. Unfortunately, the dogs were not apprehended until the day after the attack. Id. at 1282.

The Champagnes argued that the special duty exception to the public duty doctrine was

applicable to their case. Id. In this appeal of a grant of summary judgment to defendant, the

court held that there were sufficient facts alleged to establish each element of the special duty

exception and reversed and remanded the case. Id. at 1284.

       The Champagne case is similar to the case at bar. In the case sub judice, the City of

Memphis Animal Shelter sent Ms. Stidham a letter that informed her that the fencing would be

corrected and that the dogs would be trained at obedience school. Ms. Stidham was informed

that if Hill did not comply with the order, the dogs would be impounded. Because she made no

further complaints, the trial court apparently found, inferentially, that she relied upon this

assurance. We believe that the Animal Shelter “affirmatively under[took] to protect the

plaintiff” and the “plaintiff relie[d] upon the undertaking.” See Ezell, 902 S.W.2d at 402.

Obviously the neighborhood and the public at large would have also benefited from the Shelter’s

actions for Ms. Stidham. However, this does not mean that the defendant did not assume a

special duty to her. We hold that the defendant, City of Memphis, through the actions of the

Animal Shelter, assumed a special duty to Ms. Stidham.

       However, the plaintiff must still show a breach of that special duty and proximate cause

of the injury. See Haynes v. Hamilton County, 883 S.W.2d 606, 611 (Tenn. 1994). Obviously

this duty was breached because the Animal Shelter did not follow-up on the assurances to Ms.

                                                9
Stidham. The defendant argues, however, that their actions were not the proximate causes of Ms.

Stidham’s death, but instead that the criminal conduct and the gross negligence of Hill were the

independent intervening proximate causes of the death. The defendant also argues that Ms.

Stidham assumed a known risk and was the proximate cause of her own injury and death.

       The evidence does not preponderate against the trial court’s finding that the failure to

follow-up the obedience training requirement and to impound the dogs was a proximate cause

of Ms. Stidham’s death. The Tennessee Supreme Court has outlined a three-prong test for

proximate cause:

               (1) the tortfeasor’s conduct must have been a “substantial factor”
               in bringing about the harm being complained of; and (2) there is
               no rule or policy that should relieve the wrongdoer from liability
               because of the manner in which the negligence has resulted in the
               harm; and (3) the harm giving rise to the action could have
               reasonably been foreseen or anticipated by a person of ordinary
               intelligence and prudence.

Haynes, 883 S.W.2d at 612. If the Shelter had impounded the dogs like the administrative order

required, then the dogs would not have been present to attack Ms. Stidham. Obviously this was

a substantial factor in bringing about the harm. In addition, an attack by the dogs and the

resulting injury were reasonably foreseeable because of the complaints received by the Shelter

concerning Hill’s dogs.       We believe that there is no merit to the defendant’s argument that

Ms. Stidham assumed a known risk by walking to the sidewalk to get her mail. The evidence

does not preponderate against the trial court’s finding on this issue. From the record, we find

that defendant owed a special duty to Ms. Stidham, that this duty was breached, and the breach

of this duty was the proximate cause of Ms. Stidham’s death. The trial court was correct in the

judgment for the plaintiff.

                                              IV.

       The plaintiff has also presented the issue of whether claims against municipalities arising

out of the creation of a nuisance are encompassed within the Act. We have held on previous

occasions that a claim of nuisance is covered by the Act. In Collier v. Memphis Light, Gas &

Water Division, 657 S.W.2d 771, 776 (Tenn. App. 1983), this Court stated, “The legislature left

little if any room for doubt that actions against governmental entities for damages based on



                                               10
activities historically labeled ‘nuisance’ are now included in and covered by the Act.” In that

case, we distinguished some of the cases that the plaintiff now relies upon to hold otherwise. Id.

We believe that the Tennessee Supreme Court case, Paduch v. City of Johnson City, 896

S.W.2d 767 (Tenn. 1995), speaks on this issue. The Supreme Court stated, “[A]n action for

damages resulting from the creation or maintenance of a temporary nuisance by a governmental

agency may be allowed under the act.” Id. at 772. We hold again today that an action for

nuisance is covered by the Act.

       In the case sub judice, even if a claim for nuisance was not covered by the Act, we

believe that the trial court was correct in its decision that there was no act that constituted the

creation of a nuisance by the defendant. The evidence does not preponderate against the trial

court’s findings on the issue of the creation of a nuisance.

       Finally, the plaintiff asks this Court to consider whether the doctrine of sovereign

immunity should be discarded by the courts of Tennessee. In Austin v. City of Memphis, 684

S.W.2d 624 (Tenn. App. 1984), this Court, in considering the abolishment of sovereign

immunity, said:

               [P]laintiffs urge this court to change [the law of governmental
               immunity] by virtue of judicial decree. We decline this
               invitation. As pointed out by Judge Todd in Jones v. L & N
               Railroad Co., 617 S.W.2d 164 (Tenn. App. 1981):

                         The rule of sovereign immunity in Tennessee is
                         both constitutional and statutory. It is not within
                         the power of the courts to amend it.

                         Id. at 170.

Austin, 684 S.W.2d at 637; see also City of Lavergne v. Southern Silver, Inc., 872 S.W.2d 687,

689 (Tenn. App. 1993).

                                                 V.

       Accordingly, the judgment of the trial court is affirmed. Costs of this appeal are assessed

against the appellant.

                                                        _________________________________
                                                        W. FRANK CRAWFORD,
                                                        PRESIDING JUDGE, W.S.

CONCUR:


                                                 11
_________________________________
DAVID R. FARMER, JUDGE

_________________________________
HOLLY KIRBY LILLARD, JUDGE




                                    12
