IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

September 19, 2017 Session

ANTHONY HOLDER, ET AL. v. SHELBY COUNTY TENNESSEE

Appeal from the Circuit Court for Shelby County

No. CT-001752-14 Valerie L. Smith, Judge

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No. W2017-00609-COA-R3-CV

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This is the second appeal of this governmental tort liability action. After his son 

committed suicide while in custody at the Shelby County Jail, Appellee filed suit against 

the Appellant Shelby County for negligence under a theory of vicarious liability. On 

remand from this Court, the trial court held a bench trial and determined that Appellant’s 

employee’s failure to perform wellness checks was negligent conduct but not intentional. 

Accordingly, the trial court held that Appellant was not immune from suit under the 

Governmental Tort Liability Act, Tenn. Code Ann. § 29-20-205, and entered judgment in 

favor of Appellee. Shelby County appeals. Discerning no error, we affirm and remand.

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

Affirmed and Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which J. STEVEN STAFFORD,

P.J., W.S., and BRANDON O. GIBSON, J., joined.

John Marshall Jones, Memphis, Tennessee, for the appellant, Shelby County, Tennessee.

Bryan Matthew Meredith and Robert L.J. Spence, Jr., Memphis, Tennessee, for the 

appellee, Anthony Holder.

OPINION

I. Background

Appellee Anthony Holder is the father of Decardis Holder (“Decedent”). While 

Decedent was incarcerated in the Shelby County Jail, he committed suicide. Thereafter, 

Appellee filed suit, under the Governmental Tort Liability Act, Tennessee Code 

Annotated Section 29-20-101, et seq. (“GTLA”), against Appellant Shelby County, 

11/03/2017
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alleging negligence in the death of Decedent. This is the second appeal of this case. The 

precipitating facts, as taken from the Appellee’s amended complaint, are set out in our

previous opinion, Holder v. Shelby Co., No. 2014-01910-COA-R3-CV, 2015 WL 

1828015 (Tenn. Ct. App. Apr. 21, 2015) (“Holder I”), to-wit:

[Decedent] was involved in an automobile accident on April 20, 

2013. The Memphis Police Department (“MPD”) responded to the scene 

and [Decedent] was subsequently arrested. [Decedent] was charged with 

assault, failure to exercise reasonable care, “violation of financial law,” 

leaving the scene of an accident involving injury, disorderly conduct, 

resisting arrest, and resisting official detention. The MPD transported 

[Decedent] to the Shelby County Jail, where he received a mental 

evaluation performed by agents of Shelby County. The evaluation revealed 

that [Decedent] suffered from a mental condition that caused him to be 

unstable and that he was a threat to himself and others. This evaluation was 

consistent with [Decedent’s] diagnosis of mental illness, for which he was 

undergoing treatment at the time of the accident.

Due to the diagnosis, [Decedent] was placed in a special jail housing 

unit for unstable inmates, designated the “N” housing unit. Inmates placed 

in the “N” unit are classified as mentally unstable. Shelby County policy 

dictates that guards perform a mandatory safety check of the inmates of the 

“N” unit at least every thirty minutes. On April 21, 2013, Deputy Melvin 

Moore was assigned to [Decedent’s] unit between 2:00 p.m. and 10:00 p.m. 

At 9:16 p.m., Deputy Moore indicated that he checked the inmates and that 

they were all resting peacefully. Deputy Moore later admitted, however, 

that he did not make the safety check as documented in the log book and 

that he, in fact, could not recall the last time he observed [Decedent] living, 

breathing, or moving about. Indeed, Deputy Moore admitted that he failed 

to complete even one entire mandated safety check during his eight hour 

shift on April 21, 2013. Had proper safety checks been performed, nothing 

would have obstructed Deputy Moore’s view of [Decedent’s] cell. When 

later questioned about his failure to complete the mandatory safety checks, 

Deputy Moore stated that he could not recall the reason he failed to 

complete the safety checks; however, Moore publicly stated that “due to my 

negligence, a guy lost his life.”

After a shift change, Deputy Lorna Morris was assigned to 

[Decedent’s] unit. At 10:14 p.m., Deputy Morris discovered [Decedent]

hanging from a sheet in his cell. Deputy Morris obtained assistance to 

remove the sheet from [Decedent’s] neck, and perform CPR. [Decedent]

was warm and had a pulse, but was not breathing. Another Deputy that was 

present observed drool from [Decedent’s] mouth; the Deputy described the 
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drool as having been there for “a while.” [Decedent] was transported to 

Methodist Hospital–Central, where he eventually died from injuries related 

to asphyxiation.

Holder I, 2015 WL 1828015, at *1-2. In Holder I, this Court reversed the trial court’s 

grant of Shelby County’s Tennessee Rule of Civil Procedure 12.02 motion to dismiss the 

case. In its motion, Shelby County argued, inter alia, that its GTLA “immunity was not 

removed because Deputy Moore was not acting within the scope of his employment.” Id.

at *2. By order of August 18, 2014, the trial court granted Shelby County’s motion to 

dismiss. Specifically, the trial court found that Appellee’s “amended complaint failed to 

set forth any negligent acts of Shelby County, and that Deputy Moore was not ‘on or 

about Shelby County’s business at the time of his acts’ because he was not hired to falsify 

logs.” Id. In Holder I, this Court reversed the trial court’s grant of Appellant’s motion to 

dismiss. Specifically, we held that:

[Appellee’s] amended complaint contains the following relevant allegation: 

“The negligence of Deputy Moore set forth herein was committed by 

Deputy Moore within the course and scope of his employment.” Because 

this is a factual allegation, we must take it as true for purposes of Shelby 

County’s motion to dismiss. Thus, Appellant’s amended complaint clearly 

alleges that Deputy Moore’s negligence was committed within the scope of 

his employment. Accordingly, the trial court erred in dismissing 

Appellant’s amended complaint on the basis that Deputy Moore’s actions

were taken outside the scope of his employment.

Id. at *7.

Our holding, in Holder I, that Appellee’s amended complaint stated a claim for 

relief under the GTLA was based on the scope of review applicable to Tennessee Rule of 

Civil Procedure 12.02 motions to dismiss. Because a Rule 12.02 motion tests only the 

sufficiency of the complaint, the resolution of a 12.02(6) motion to dismiss is determined 

by an examination of the pleadings alone. Id. at *2 (internal citations omitted). However, 

our holding that Appellee’s pleadings were sufficient to survive Appellant’s motion to 

dismiss did not amount to a substantive determination that Deputy Moore’s actions were 

negligent, as opposed to intentional. Accordingly, on remand from Holder I, the case 

proceeded to a bench trial before the trial court, with the question of whether Deputy 

Moore’s actions were intentional or negligent being paramount to Shelby County’s 

liability. Following the trial, the trial court found that Deputy Moore’s actions were 

negligent and that Shelby County was not immune from liability under the GTLA, see 

discussion infra. On February 23, 2017, the trial court entered an order of judgment, in 

the amount of $300,000.00, against Shelby County. Shelby County appeals.
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II. Issue

Shelby County raises the following issue for review as stated in its brief:

Whether the trial court erred in finding that Shelby County Jail corrections 

officer, Melvin Moore’s failure to conduct wellness checks on inmate 

Decardis Holder was negligent, rather than intentional, conduct and 

therefore that Defendant/Appellant Shelby County, Tennessee is liable to 

Plaintiff/Appellee for the death of his son, Decardis Holder?

III. Standard of Review

In an appeal from a bench trial, we review findings of fact de novo upon the 

record. Tenn. R. App. P. 13(d); Hughes v. Metro. Gov’t of Nashville and Davidson Cty.

340 S.W.3d 352, 359 (Tenn. Ct. App. 2011). We presume the trial court’s findings are 

correct, unless the evidence in the record preponderates otherwise. Tenn. R. App. P. 

13(d). Questions of law are subject to de novo review with no presumption of 

correctness. 

IV. Discussion

The GTLA carves out exceptions to the general rule of sovereign immunity, which 

provides that “‘suit may not be brought against a governmental entity unless that 

governmental entity has consented to be sued.’” Doyle v. Frost, 49 S.W.3d 853, 857 

(Tenn. 2001) (quoting Hawks v. City of Westmoreland, 960 S.W.2d 10, 14 (Tenn.

1997)); see also Tenn. Const. Art. I, § 17 (stating “[s]uits may be brought against the 

State in such manner and in such courts as the Legislature may by law direct”). As such, 

the GTLA provides a general rule of immunity from suit for any injury resulting from 

activities of governmental entities “engaged in the exercise and discharge of any of their 

functions, governmental or proprietary” except as specifically provided by the GTLA. 

Tenn. Code Ann. § 29-20-201(a); Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 84 

(Tenn. 2001). As is relevant to the instant appeal, the GTLA removes immunity for an 

injury “proximately caused by a negligent act or omission of any employee within the 

scope of his employment,” but provides a list of exceptions to this removal of immunity, 

including certain enumerated intentional torts, if the injury arises out of them. Tenn. Code 

Ann. § 29-20-205. However, the GTLA provides that, before finding a governmental 

entity liable for damages, a court must find the following: (1) the acts of the employee 

were negligent and the proximate cause of plaintiff’s injury; (2) the employee was acting 

within the scope of his employment; and (3) none of the exceptions outlined in Tennessee 

Code Annotated Section 29-20-205 of the GTLA apply.1Tenn. Code Ann. § 29-20-

310(a). As set out in Appellant’s issue, supra, the sole question in this case is whether 

 

1 None of the Tennessee Code Annotated Section 29-20-205 exceptions apply in the instant case.
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Deputy Moore’s actions were negligent or intentional; accordingly, we will not address 

criterion two, i.e., whether Deputy Moore was acting within the scope of his employment.

In arguing that Deputy Moore’s actions were intentional (so as to retain Shelby 

County’s sovereign immunity under the GTLA), Shelby County relies, inter alia, on the 

Tennessee Supreme Court’s opinion in Hughes v. Metropolitan Government of 

Nashville and Davidson County, 340 S.W.3d 352, 368 (Tenn. 2011), which we discussed 

in Holder I, to-wit:

In Hughes, the issue concerned whether immunity was removed 

with regard to injuries resulting from the operation of public works 

equipment by a government employee. Hughes, 340 S.W.3d 352, 368-69 

(Tenn. 2011). At the conclusion of a bench trial, the trial court ruled that 

although the employee “intended to drive the vehicle in a negligent or 

careless manner,” the employee merely committed negligence. Thus, the 

trial court ruled that immunity was removed. Id. at 367-68.

On appeal, the Tennessee Supreme Court was tasked with 

determining whether the injuries resulted from the employee’s negligence, 

for which immunity was removed, or assault, for which immunity was not 

removed. Id. at 369. In determining that the employee committed the 

intentional tort of assault, the Court focused on the intent required to prove 

the tort of assault. The Court concluded that to commit the intentional tort 

of assault, the tortfeasor must intend “to create an apprehension of harm.” 

Id. at 371. The trial court specifically found that the employee in Hughes

intended to frighten the plaintiff, which finding was supported by the 

testimony of witnesses. Thus, the Court held that the intention element of 

the tort of assault had been met. Id. at 371-72. Accordingly, the Court 

concluded that the employee committed an intentional tort, for which 

immunity was not removed. Id.

Holder I, 2015 WL 1828015, at *5. In Holder I, we ultimately concluded that Hughes 

was not applicable insofar as the holding in Hughes was based on a full adjudication in 

the trial court and not on the grant of a dispositive motion such as the motion to dismiss 

presented in Holder I. However, we clarified that, in determining whether a government 

employee’s actions were intentional or negligent, “the employee’s intent [is] the 

dispositive issue in determining whether negligence or an intentional tort was 

committed.” Id. (citing Hughes, 340 S.W.3d at 371; King v. Ross Coal Co., 684 S.W.2d

617, 620 (Tenn. Ct. App. 1984)) (“[I]t takes more than a mere inference of tortious intent 

to convert the defendant’s negligence into an intentional tort.”)). As we explained in 

Holder I:

“The distinguishing factor between intentional tortious conduct and 
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negligent conduct is that the intentional actor has the desire to bring about 

the consequences that follow or the substantial certainty that they will 

occur, while a negligent actor does not desire to bring about the 

consequences which follow, nor does he or she know that they are 

substantially certain to occur, or believe that they will; there is merely a risk 

of such consequences, sufficiently great to lead a reasonable person in his 

or her position to anticipate them, and to guard against them. Thus, the 

principal difference between negligent and intentional conduct is a 

difference in the probability, under the circumstances known to the actor 

and according to common experience, that certain consequence or a class of 

consequences will follow from a certain act.”

Id. at *6 (quoting 57A Am.Jur.2d Negligence § 30).

Based on the foregoing discussion, the gravamen of whether Deputy Moore acted 

intentionally or negligently rests on his intent and, specifically, whether Deputy Moore 

had “the desire to bring about the consequences [of Decedent’s death],” or had 

“substantial certainty” that harm would come to Decedent by Deputy Moore’s failure to 

perform wellness checks and/or his falsification of the log book. Id. 

In its February 23, 2017 order, the trial court found that Deputy Moore did not 

intend to harm Decedent, or to otherwise bring about his death, to-wit:

21. Officer Melvin Moore did not have any desire that [Decedent] would 

suffer harm, he did not know [Decedent] would suffer harm, and he did not 

believe [Decedent] would suffer harm based on his failure to perform the 

wellness checks. 

22. Officer Moore did not have any desire that [Decedent] would suffer 

harm, he did not know [Decedent] would suffer harm, and he did not 

believe [Decedent] would suffer harm based on the false entries he made in 

his log book. 

23. When questioned about [Decedent’s] death, Officer Moore, admitted 

that “due to my negligence, a guy lost his life.” 

24. The actions of Officer Melvin Moore in not conducting the wellness 

checks was [sic] negligent conduct and not intentional conduct.

Turning to the record, Deputy Moore’s undisputed testimony supports the 

trial court’s findings. In relevant part, Deputy Moore stated:

Q: Okay. Sir, on April 21st, 2013, when you failed to perform the wellness 
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checks on [Decedent], did you have any desire that [Decedent] would suffer 

harm?

A: No, sir. 

Q: And when you failed to perform those wellness checks on [Decedent], 

did you know that [Decedent] would suffer any harm?

A: No, sir, I didn’t know that. 

Q: Did you believe that he would suffer any harm?

A: No, sir. 

Having testified that it was not his desire to harm Decedent by failing to perform 

the required wellness checks, on cross-examination, Shelby County attempted to elicit 

proof that, given Decedent’s mental state and the fact that he was being housed in the Npod, Deputy Moore should have known that Decedent might attempt suicide if wellness 

checks were not performed, to-wit: 

Q. Mr. Moore, the Shelby County Sheriff’s Office trained you on making 

wellness checks on mentally unstable inmates, correct?

A. Yes, sir.

Q. You were supposed to at least walk to the cell and look in on the 

inmate, correct?

A. Yes, sir.

Q. And you were also trained to do a wellness check on mentally unstable 

inmates at the end of your shift, correct?

A. Yes, sir.

Q. And you understood that all of the inmates in N pod on April 21st, 2013, 

were classified as mentally unstable, correct?

A. Mentally unstable, but not suicidal.

Q. Including [Decedent], correct?

A. Yes, sir.
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Q. And you understood, based on your training and based on Shelby 

County’s policies, that those wellness checks were mandatory, correct?

A. Yes, sir.

In view of Deputy Moore’s testimony that, while he was aware that Decedent was 

“mentally unstable,” he was not aware that Decedent was suicidal, we cannot conclude 

that the evidence preponderates against the trial court’s finding that Deputy Moore “did 

not believe [Decedent] would suffer harm.” Certainly, Deputy Moore owed a duty to 

Decedent to perform the wellness checks, and Deputy Moore undisputedly breached this 

duty. However, in the absence of any evidence to support a finding that it was Deputy 

Moore’s intent to harm the Decedent, his actions, while negligent, were not intentional so 

as to establish Shelby County’s sovereign immunity under the GTLA. “[A] negligent 

actor does not desire to bring about the consequences which follow, nor does he or she 

know that they are substantially certain to occur, or believe that they will; there is merely 

a risk of such consequences, sufficiently great to lead a reasonable person in his or her 

position to anticipate them, and to guard against them.” Id. at *6 (quoting 57A

Am.Jur.2d Negligence § 30). 

V. Conclusion

For the foregoing reasons, we affirm the trial court’s order of judgment. The case 

is remanded for such further proceedings as may be necessary and are consistent with this 

opinion. Costs of the appeal are assessed to the Appellant, Shelby County, Tennessee, 

for all of which execution may issue if necessary.

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ARNOLD B. GOLDIN, JUDGE