                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                September 10, 2013 Session

   TERESA POWELL HUDSON, INDIVIDUALLY AND AS SURVIVING
   SPOUSE AND EXECUTRIX OF THE ESTATE OF ROBERT MELVIN
            HUDSON, DECEASED V. TOWN OF JASPER

                   Appeal from the Circuit Court for Marion County
                         No. 17942    Buddy D. Perry, Judge



              No. M2013-00620-COA-R9-CV            - Filed October 22, 2013


This is a wrongful death action against the Town of Jasper. The surviving spouse of the
decedent, who died of complications resulting from a myocardial infarction, alleges that the
town was negligent and negligent per se by failing to register its three automated external
defibrillators with the emergency communications district dispatch as required by Tennessee
Code Annotated § 68-140-703 and that such negligence contributed to the decedent’s injuries
and death. The town filed a Rule 12.02(6) motion to dismiss for failure to state a claim upon
which relief can be granted on the basis the statute did not create a private right of action; the
trial court denied the motion to dismiss but granted a Tenn. R. App. P. 9 interlocutory appeal.
We have determined there is no express language creating a private right of action in the
statute, and, looking to the statutory structure and legislative history of the statute, we have
also determined the legislature did not intend to create a private right of action by
implication. Therefore, we reverse and remand with instructions to grant the motion to
dismiss the complaint for failure to state a claim upon which relief can be granted and enter
judgment accordingly.

      Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court
                              Reversed and Remanded

F RANK G. C LEMENT, J R., J., delivered the opinion of the Court, in which A NDY D. B ENNETT
and R ICHARD H. D INKINS, J.J., joined.

Ronald D. Wells and Stacy Lynn Archer, Chattanooga, Tennessee, for the appellant, Town
of Jasper.
Jennifer H. Lawrence and David H. Lawrence, Chattanooga, Tennessee, for the appellee,
Teresa Powell Hudson, Individually and as Surviving Spouse and Executrix of the Estate of
Robert Melvin Hudson, Deceased.

                                            OPINION

       Robert Hudson (“Mr. Hudson”), who served on the Marion County Board of
Commissioners, was attending a board meeting on June 25, 2007, in a municipal building
within the city limits of the Town of Jasper when he suffered an apparent heart attack. Fellow
commissioners immediately called 911 for an ambulance to be dispatched and began
administering CPR; moments later they decided to drive him in one of their vehicles to the
nearest medical facility. Mr. Hudson remained in the hospital until June 30, 2007, when he
was pronounced dead of complications resulting from a myocardial infarction.

        On June 18, 2008, Teresa Powell Hudson (“Plaintiff”), individually and as the
surviving spouse of Mr. Hudson, timely filed this wrongful death action against the Town
of Jasper. Plaintiff contends the town was negligent and negligent per se by failing to register
its three automated external defibrillators (“AEDs”) with the emergency communications
district dispatch as required by Tennessee Code Annotated § 68-140-703 (2008)1 and that
such negligence contributed to her husband’s death. Stated another way, she contends her
husband would have survived if the AEDs, one of which was placed on each of the town’s
fire trucks, had been registered with the Marion County 911 operator in order to promptly
dispatch the nearest fire truck.

        For purposes of this appeal, it is undisputed that the Town of Jasper owned and
controlled the town’s volunteer fire department, the fire department acquired three AEDs in
the months preceding Mr. Hudson’s heart attack, Mr. Hudson was within the city limits of
Jasper when and where he suffered the heart attack, and one of the AED equipped fire trucks
was less than one mile from Hr. Hudson’s location. Moreover, Jasper admits in its Answer
that “the Town of Jasper has not registered the AED,” and, therefore, it is undisputed that
none of the AEDs were registered as required by Tennessee Code Annotated § 68-140-703.

       After filing an Answer denying any liability or duty and taking discovery, the Town
of Jasper filed a motion to dismiss for failure to state a claim, as well as an alternate motion
for summary judgment. The evidence relied upon by both parties established that a
disagreement had arisen among town officials concerning the acquisition of the AEDs by the
town’s volunteer fire department and whether the volunteer fire department should provide


       1
         The statute was codified at Tennessee Code Annotated § 68-140-703 when this action was filed.
In 2011, it was transferred, and it now appears in Tennessee Code Annotated § 68-140-403.

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first responder emergency services. By letter dated December 12, 2006, the Fire Chief
notified the Sheriff’s department, which handles emergency dispatch duties for Marion
County and its municipalities, to inform the 911 dispatchers that the Jasper fire department
had acquired three AEDs and was willing to provide first responder emergency services.
Upon learning of the Fire Chief’s action, the Board of the Mayor and Aldermen of Jasper
(“Board”) sent a letter on December 20, 2006, to the Fire Chief objecting to the fire
department providing first responder services because of potential liability issues. On or
before December 29, 2006, the Board also learned the town did not have liability coverage
for acts or omissions as a first responder.

       In March 2007, the Town of Jasper obtained insurance that included coverage for first
responder liability; nevertheless, pursuant to a decision made in August 2007, the Board
refused to authorize the fire department to serve as a first responder. For the foregoing
reasons, the AEDs were never registered.

       Following a hearing on the motions, the trial court denied the motion to dismiss
finding that the statute created a private cause of action and denied summary judgment
finding there were genuine issues of material fact. After denying both motions, the Town of
Jasper filed a Motion for Interlocutory Appeal. The trial court granted the right to this
interlocutory appeal pursuant to Tenn. R. App. P. 9, and this court granted the interlocutory
appeal.

        In this appeal, the Town of Jasper contends that Tennessee Code Annotated § 68-140-
703 does not create a private right of action for failure to register AEDs, and, therefore, the
trial court erred by denying its Tenn. R. Civ. P. 12.02(6) motion to dismiss for failure to state
a claim upon which relief can be granted. It also contends the trial court erred in denying its
motion for summary judgment because, inter alia, it was immune from liability or at least
shielded by the public duty doctrine.

                                          A NALYSIS

                                   A. M OTION TO D ISMISS

        The purpose of a Tenn. R. Civ. P. 12.02(6) motion to dismiss is to determine whether
the pleadings state a claim upon which relief can be granted. A Rule 12 motion only
challenges the legal sufficiency of the complaint; it does not challenge the strength of the
plaintiff’s proof. Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A.,
986 S.W.2d 550, 554 (Tenn. 1999). In reviewing a motion to dismiss, we must liberally
construe the complaint, presuming all factual allegations to be true and giving the plaintiff
the benefit of all reasonable inferences. Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d

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691, 696 (Tenn. 2002) (citing Pursell v. First Am. Nat’l Bank, 937 S.W.2d 838, 840 (Tenn.
1996)). Thus, a complaint should not be dismissed for failure to state a claim unless it
appears that the plaintiff can prove no set of facts in support of his or her claim that would
warrant relief. Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn. 1999) (citing Riggs v. Burson,
941 S.W.2d 44, 47 (Tenn. 1997)). Making such a determination is a question of law. Our
review of a trial court’s determinations on issues of law is de novo, with no presumption of
correctness. Id. (citing Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997)).

                                B. P RIVATE R IGHT OF A CTION

        Whether Tennessee Code Annotated § 68-140-703 creates a private right of action for
failure to register AEDs is a matter of first impression, and we recognize that a plaintiff who
asserts that a statute creates a private right of action has the burden to establish that a private
right of action exists. Brown v. Tennessee Title Loans, Inc., 328 S.W.3d 850, 856 (Tenn.
2010) (citing Premium Fin. Corp. of Am. v. Crump Ins. Servs. of Memphis, Inc., 978 S.W.2d
91, 93 (Tenn. 1998)).

        Plaintiff asserts Tennessee Code Annotated § 68-140-703 implicitly established a right
of action because registration of AEDs is mandatory, and, in support of her assertion, she
states that the mandate to register the AEDS would be pointless if the statute did not provide
a cause of action for enforcement. The Town of Jasper contends there is no express or
implied grant of a private right of action in the statute’s legislative history or underlying
purpose. The trial court agreed with Plaintiff, finding that the legislature's change of the
wording of the statute from “encouraged to register” to “shall, within a reasonable time after
the placement of an AED, register,” creates a private right of action. The trial court further
stated that without any enforcement provision, the statute would be meaningless.

       Whether a statute creates a private right of action is determined by its statutory
construction. Brown, 328 S.W.3d at 855 (citing Premium Fin., 978 S.W.2d at 93). When
analyzing statutory construction, the court must determine and implement legislative intent,
without expanding beyond the statute’s coverage. Id.; Hawks v. City of Westmoreland, 960
S.W.2d 10, 16 (Tenn. 1997). Moreover, the court may not liberally create a private right of
action where the existence of such depends on the contents of the statute. Brown, 328 S.W.3d
at 855 (citing Premium Fin., 978 S.W.2d at 93). The authority to create a private right of
action belongs to the legislature. Id.

       The statute at issue reads in pertinent part:

       (2) Any person or entity that acquires an AED shall, within a reasonable time
       after the placement of an AED, register the existence and location of the

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        defibrillator with the emergency communications district or the ambulance
        dispatch center of the primary provider of emergency medical services where
        the AED is to be located.

Tennessee Code Annotated § 68-140-703(2) (2008).

        The doctrine of statutory construction mandates that we first look to the express
statutory language to determine whether the legislature intended to create or deny a private
right of action for failure to register AEDs. Brown, 328 S.W.3d at 855 (citing Premium Fin.,
978 S.W.2d at 93). Neither the original nor amended statute expressly creates or denies a
private right of action for failing to register an AED. Because there is no express language
creating a private right of action, we must now determine whether the legislature intended
to create one by implication. We do this by looking to the statutory structure and legislative
history. Id. (citing Premium Fin., 978 S.W.2d at 93). Important factors to examine are (1)
whether the aggrieved party is an intended beneficiary within the protection of the statute,
(2) whether the legislative intent creates or denies a private right of action, and (3) whether
implying such a remedy is consistent with the legislation’s underlying purpose.2 Id. (citing
Ergon, Inc. v. Amoco Oil Co., 966 F.Supp. 577, 583–84 (W.D. Tenn. 1997); Buckner v.
Carlton, 623 S.W.2d 102, 105 (Tenn. Ct. App. 1981), superseded by statute on other
grounds, Act of May 24, 1984, ch. 972, 1984 Tenn. Pub. Acts 1026, as recognized in Lucas
v. State, 141 S.W.3d 121, 129, 137 (Tenn. Ct. App. 2004)).

       Defendant concedes that Mr. Hudson, as a member of the public, was an intended
beneficiary within the protection of the statute; therefore, the first factor favors Plaintiff.

       As for the second factor, the legislative history does not reveal an intent to create a
private right of action; in fact, nothing in the history supports the assertion that the legislature
intended to create a private right of action by implication. Admittedly, the legislature changed
the wording of the statute from encouraging registration to mandating registration with the
inclusion of the word shall; nevertheless, the legislature did not expressly create nor does it
appear that the legislature intended to implicitly create a private right of action for failing to
register an AED. For us to infer that the inclusion of the word “shall” evidences an intent by



        2
          These factors originally appeared in the United States Supreme Court’s opinion in Cort v. Ash, 422
U.S. 66 (1975), which set forth the standard for determining whether a private right of action is implicit in
a federal statute. Cort, 422 U.S. at 78. Cort also established a fourth factor concerning whether the cause of
action is traditionally relegated to state law, which is inapplicable to the interpretation of state statutes, and,
as such, is removed from the analysis. See Ergon, 966 F.Supp. 577 at 584 n.9. The first Tennessee decision
to analyze the three applicable Cort factors to determine whether a Tennessee statute implied a private right
of action was Buckner v. Carlton, 623 S.W.2d 102 (Tenn. Ct. App. 1981).

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the legislature to create a private right of action by implication would constitute a liberal
interpretation of the statute, and we are not permitted to do such. See Premium Fin. Corp.,
978 S.W.2d at 93 (citing Hogan v. McDaniel, 319 S.W.2d 221, 223 (Tenn. 1958)).

       It is also appropriate that we adhere to the statutory construction doctrine of in pari
materia to determine whether the second factor favors Plaintiff’s contention. Statutes “in pari
materia” - those relating to the same subject or having a common purpose - are to be
construed together, and the construction of one such statute, if doubtful, may be aided by
considering the words and legislative intent indicated by the language of another statute.
Berry’s Chapel Util., Inc. v. Tennessee Regulatory Auth., M2011-02116-COAR12CV, 2012
WL 6697288, at *3 (Tenn. Ct. App. Dec. 21, 2012) (citing Wilson v. Johnson Cnty., 879
S.W.2d 809 (Tenn. 1994)). Tennessee Code Annotated § 68-140-704, the section that
immediately follows that upon which Plaintiff’s contentions rely, appears to be in conflict
with Plaintiff’s argument. Section 704 states, “in order for an entity to use or allow the use
of an automated external defibrillator,” the entity must first establish a program for the use
of the AEDs that includes a written plan complying with subdivisions (2)-(6) of Tennessee
Code Annotated § 68-140-704 and rules adopted by the department of health. Thus,
Tennessee Code Annotated § 68-140-704 makes it clear that the mere acquisition of an AED
did not authorize the Town of Jasper to use or allow the use of its AEDs; to the contrary,
additional steps were mandated prior to such use of an AED.

        The third factor to consider is whether inferring a private right of action is consistent
with the legislation’s underlying purpose. The stated purpose of the statute is to increase the
availability of AEDs in order to hopefully minimize the number of deaths from sudden
cardiac arrest. Tenn. Gen. Assemb., H.B. 2970, 100th Gen. Assemb., Reg. Sess. (Tenn.
1998). A private right of action would not directly conflict with the stated purpose of the
statute; however, the creation of a private right of action against entities that merely acquire
AEDs is not likely to encourage such entities to obtain these devices, especially small
municipalities. Thus, the creation of a private right of action against an entity that merely
acquires an AED is likely to decrease, instead of increase, the availability of AEDs, which
is contrary to the stated purpose of the statute.

       We have therefore determined that Tennessee Code Annotated § 68-140-703 did not
create a private right of action nor did the statute or statutes in pari materia impose an
affirmative duty on the Town of Jasper to use or allow the use of its AEDs simply because
it acquired AEDs.

       For the foregoing reasons, we have determined that Plaintiff failed to state a claim
upon which relief can be granted due to the Town of Jasper’s alleged negligence in failing
to register its AEDs. Therefore, we reverse the decision to deny the motion to dismiss and

                                               -6-
remand with instructions to grant the motion to dismiss the complaint for failure to state a
claim upon which relief can be granted and enter judgment accordingly.

                          C. M OTION FOR S UMMARY J UDGMENT

      The foregoing decision renders moot the issue pertaining to the motion for summary
judgment; accordingly, it will not be addressed.

                                     I N C ONCLUSION

       The judgment of the trial court is reversed, and this matter is remanded with
instructions to grant the Town of Jasper’s Tenn. R. Civ. P. 12.02(6) motion to dismiss the
complaint for failure to state a claim upon which relief can be granted and enter judgment
accordingly. Costs of appeal are assessed against Plaintiff.


                                                     ______________________________
                                                     FRANK G. CLEMENT, JR., JUDGE




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