                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                      July 8, 2002 Session


             JAMES R. CONE, deceased, by next friend TIM CONE v.
                         STATE OF TENNESSEE

                Appeal from the Claims Commission of the State of Tennessee
                        No. 20001588    W.R. Baker, Commissioner



                    No. M2001-02242-COA-R3-CV - Filed August 13, 2002



After his father was killed while crossing railroad tracks located in Sumner County, Tim Cone
(“Plaintiff”), as next friend and on behalf of his father James R. Cone, sued the State of Tennessee
(“Defendant”) in the Claims Commission. Plaintiff claimed Defendant exercised control over the
railroad crossing and was responsible for the dangerous condition at that crossing. Plaintiff also
claimed Defendant negligently deprived James R. Cone of certain statutory rights. The Claims
Commission granted Defendant’s motion to dismiss for failure to state a claim upon which relief
could be granted holding it did not have jurisdiction over Plaintiff’s three claims. Plaintiff appeals.
We affirm in part, reverse in part, and remand this case to the Claims Commission.


D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HOUSTON M. GODDARD, P.J.,
and HERSCHEL P. FRANKS, J., joined.


              Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Claims
            Commission Affirmed in Part and Reversed in Part; Case Remanded.


Pamela R. O’Dwyer and Randall D. Larramore, Chattanooga, Tennessee, and Joseph K. Dughman,
Nashville, Tennessee, for the Appellant James R. Cone, deceased, by next friend Tim Cone.


Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Michael
B. Leftwich, Assistant Attorney General, Nashville, Tennessee, for the Appellee State of Tennessee.
                                             OPINION

                                            Background

                  On April 16, 1999, James R. Cone (“Cone”) was driving northbound on Harris Lane
at its intersection with railroad crossing No. 343797D, located approximately .2 miles north of state
highway 31F in Sumner County. As Cone crossed the railroad tracks, his car was hit by a train,
resulting in his death. Two lawsuits were filed by Tim Cone, as next friend and on behalf of his
deceased father. One lawsuit was filed in the Circuit Court for Sumner County. The defendants in
that suit were Sumner County and the owner and operator of the train, CSX Transportation, Inc. In
that lawsuit, Plaintiff alleged, inter alia, that Sumner County owned, operated, maintained, and
controlled the road on which Plaintiff was driving at the time of the accident.

                 The second lawsuit was filed against the State of Tennessee (“Defendant”) in the
Claims Commission. It is this second lawsuit now before us on appeal. In the Amended Complaint
filed against the State, Plaintiff alleged the crossing where the fatal accident occurred was a
“highway” under both federal and state law. Plaintiff further claimed the State exercised control
over the highway “by the decision regarding, and provision of funding for, safety devices for said
crossing,” and the State, therefore, was liable for its negligence pursuant to Tenn. Code Ann. §§ 9-8-
307(a)(1)(C) and (a)(1)(J). Plaintiff also claimed a violation of various federal statutes and
regulations pertaining to the safety of railroad crossings and the adequacy of warnings. According
to Plaintiff, since the State was a recipient of federal funds under the Federal Railway-Highway
Crossings Program, 23 U.S.C. § 130, Tenn. Code Ann. § 4-3-2303 required the Commissioner of
Transportation to comply with these federal laws, and the failure of the State to do so violated the
statutory requirements of Tenn. Code Ann. § 4-3-2303.

                There are three statutory provisions which Plaintiff maintains both provide a cause
of action for the claims asserted in the Amended Complaint and confer jurisdiction on the Claims
Commission. These statutory provisions are Tenn. Code Ann. §§ 9-8-307(a)(1)(C), (a)(1)(J), and
(a)(1)(N), which provide, in relevant part, as follows:

               9-8-307.… (a)(1) The commission or each commissioner sitting
               individually has exclusive jurisdiction to determine all monetary
               claims against the state based on the acts or omissions of "state
               employees," as defined in § 8-42-101(3), falling within one (1) or
               more of the following categories:

                                                ***

                               (C) Negligently created or maintained dangerous
                       conditions on state controlled real property. The claimant
                       under this subsection must establish the foreseeability of the
                       risks and notice given to the proper state officials at a time

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                       sufficiently prior to the injury for the state to have taken
                       appropriate measures;

                                                 ***

                               (J) Dangerous conditions on state maintained
                       highways. The claimant under this subsection must establish
                       the foreseeability of the risk and notice given to the proper
                       state officials at a time sufficiently prior to the injury for the
                       state to have taken appropriate measures;

                                                 ***

                               (N) 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 action in favor
                       of the claimant against the state for the state's violation of the
                       particular statute's provisions; …. (emphasis added).

                The State filed a motion to dismiss arguing Plaintiff failed to state a claim upon which
relief could be granted and the Claims Commission did not have jurisdiction over Plaintiff’s claims.
According to the State, the road upon which the fatal accident happened was a county road which
the State did not maintain or exercise control over and, therefore, neither Tenn. Code Ann. §§ 9-8-
307(a)(1)(C) nor (a)(1)(J) applied. The State further argued that Tenn. Code Ann. §4-3-2303 did not
expressly provide for a private right of action, and thus Tenn. Code Ann. § 9-8-307(a)(1)(N) neither
created a cause of action nor conferred jurisdiction on the Claims Commission.

                The Claims Commission granted the State’s Motion to Dismiss. In doing so, the
Commissioner concluded the site where the accident occurred was not on state controlled real
property or a state maintained highway and, therefore, neither Tenn. Code Ann. §§ 9-8-307(a)(1)(C)
nor (a)(1)(J) applied. The Commissioner also concluded Tenn. Code Ann. 4-3-2303 created no
express private right of action and as such Tenn. Code Ann. § 9-8-307(a)(1)(N) was not applicable
either. Based on the foregoing, the Commissioner concluded Plaintiff failed to state a claim upon
which relief could be granted and the Claims Commission lacked subject matter jurisdiction.
Plaintiffs claims were dismissed. Plaintiff appeals, claiming the Amended Complaint states a claim
upon which relief can be granted pursuant to Tenn. Code Ann. §§ 9-8-307(a)(1)(C), (a)(1)(J), and
(a)(1)(N).




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                                                      Discussion

             Our standard of review as to the granting of a motion to dismiss is set out in Stein v.
Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997). In Stein, our Supreme Court explained:

                  A Rule 12.02(6), Tenn. R. Civ. P., motion to dismiss for failure to
                  state a claim upon which relief can be granted tests only the legal
                  sufficiency of the complaint, not the strength of a plaintiff's proof.
                  Such a motion admits the truth of all relevant and material averments
                  contained in the complaint, but asserts that such facts do not
                  constitute a cause of action. In considering a motion to dismiss,
                  courts should construe the complaint liberally in favor of the plaintiff,
                  taking all allegations of fact as true, and deny the motion unless it
                  appears that the plaintiff can prove no set of facts in support of her
                  claim that would entitle her to relief. Cook v. Spinnaker's of
                  Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn. 1994). In considering
                  this appeal from the trial court's grant of the defendant's motion to
                  dismiss, we take all allegations of fact in the plaintiff's complaint as
                  true, and review the lower courts' legal conclusions de novo with no
                  presumption of correctness. Tenn. R. App. P. 13(d); Owens v.
                  Truckstops of America, 915 S.W.2d 420, 424 (Tenn. 1996); Cook,
                  supra.

                As set forth above, Tenn. Code Ann. § 9-8-307(a)(1)(C) vests the Claims
Commission with jurisdiction for monetary claims arising from negligently created or maintained
dangerous conditions “on state controlled real property.” In the Amended Complaint, Plaintiff
specifically alleges the State exercised control over the highway “by the decision regarding, and
provision of funding for, safety devices for said crossing.” In considering the motion to dismiss, the
Claims Commission was required to construe the Amended Complaint liberally in favor of Plaintiff,
taking all allegations of fact as true.1 Taking the factual allegations contained within the Amended
Complaint as true, we cannot say that Plaintiff can prove no set of facts that would entitle him to
relief. Therefore, we believe Plaintiff adequately states a claim upon which relief can be granted
pursuant to Tenn. Code Ann. § 9-8-307(a)(1)(C). In reaching this conclusion, we express no opinion
on whether or not the State engaged in any negligent conduct or whether or not the real property
actually was “controlled” by the state. We hold only that the Amended Complaint sufficiently states
a cause of action for purposes of withstanding a Rule 12 motion to dismiss and the Claims
Commission was in error when it dismissed this claim for failure to state a claim upon which relief
could be granted.

         1
            The State subm itted an Affid avit in su ppo rt of its m otion to dism iss. It does not appear the Claims
Comm ission relied o n the contents of this A ffidav it wh en ru ling o n the mo tion to dism iss. The conclusions we reach
today would not be affected regardless of whether we treated the State’s motion as a motion to dismiss or a motion for
sum ma ry jud gm ent.

                                                           -4-
              Plaintiff, however, alleged few, if any, facts in support of his claim in the Amended
Complaint that the State “maintained” the highway at issue. After taking the factual allegations in
the Amended Complaint as true, the Claims Commission properly concluded Plaintiff failed to state
a claim upon which relief could be granted for a violation of Tenn. Code. Ann. § 9-8-307(a)(1)(J),
and we affirm the Claims Commission’s ruling in this regard.

                The third and final issue on appeal is whether Plaintiff failed to state a claim upon
which relief could be granted pursuant to Tenn. Code Ann. § 9-8-307(a)(1)(N), which provides a
cause of action for negligent deprivation of state statutory rights. Plaintiff must prove the Tennessee
“general assembly expressly conferred a private right of action in favor of the claimant against the
state ….” Plaintiff claims a violation of Tenn. Code Ann. § 4-3-2303 which, among other things,
places a duty on the Commissioner of Transportation to “[a]pply for and accept on behalf of the state
any grant from the federal government to be used for any of the purposes of the department, and to
comply with any conditions and limitations annexed ….” According to Plaintiff, this state statute
placed an affirmative duty on the State to comply with numerous federal statutes and regulations
since the State received funds pursuant to the federal Railway-Highway Crossings Program.

                 We have reviewed Tenn. Code Ann. § 4-3-2303 and can find no language in that
statute where the general assembly “expressly” conferred a private right of action for a violation of
that statute’s provisions, nor has Plaintiff pointed us to any such language. See Madkins v. State, No.
W2001-03002-COA-R3-CV, 2002 Tenn. App. LEXIS 387 at *6 (Tenn. Ct. App. May 29, 2002)(No
Rule 11 app. for perm. to appeal filed)(“For every statutory right allegedly violated by the State,
[Plaintiff] must reference explicit statutory language that would grant him the private right of action
to enforce the statute.”); Taylor v. State, No. W2000-01467-COA-MR3-CV, 2001 Tenn. App.
LEXIS 568 at *5, *6 (Tenn. Ct. App. July 31, 2001)(Rule 11 app. for perm. to appeal denied
December 14, 2001)(“In order for the Claims Commission to have jurisdiction over [Plaintiff’s]
action for negligent deprivation of statutory rights, there must be express language indicating that
the legislature intended to create a private right of action. Consequently, … [Plaintiff] must point
to specific statutory language conferring upon him a private right of action to enforce the statute.”).
Accordingly, we affirm the Claims Commission’s ruling dismissing Plaintiff’s claim brought
pursuant to Tenn. Code Ann. § 9-8-307(a)(1)(N) for the alleged negligent deprivation of statutory
rights set forth in Tenn. Code Ann. § 4-3-2303.

                                             Conclusion

            The judgment of the Claims Commission dismissing Plaintiff’s claims pursuant to
Tenn. Code Ann. §§ 9-8-307(a)(1)(J) and (a)(1)(N) is affirmed. The judgment of the Claims
Commission dismissing Plaintiff’s claim pursuant to Tenn. Code Ann. § 9-8-307(a)(1)(C) is




                                                 -5-
reversed. This cause is remanded to the Claims Commission for further proceedings consistent with
this Opinion, and for collection of the costs below. The costs on appeal are assessed one-half against
the Appellant James R. Cone, deceased, by next friend Tim Cone, and his surety, and one-half
against the Appellee State of Tennessee.




                                                       ___________________________________
                                                       D. MICHAEL SWINEY, JUDGE




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