FILED

May 6, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION

AT JACKSON

_______________________________________________________

)

ERICA REBECCA HURD, deceased ) Madison County Circuit Court

by and through her parents and next ) Nos. C-95-284-I and C-95-295-I

friends, CHARLES and VIRGINIA )

HURD, and CORTNEY DESHAUN )

RAGLAND, a minor, by and through his )

next friend, WANDA KAY GRIME, )

)

 Plaintiffs/Appellants. )

)

VS. ) C. A. NO. 02A01-9607-CV-00170

)

DAVID WOOLFORK, individually and )

as an agent, servant, employee, Sheriff, )

and representative of MADISON )

COUNTY, TENNESSEE and )

MADISON COUNTY, TENNESSEE, )

)

 Defendants/Appellees. )

)

______________________________________________________________________________

From the Circuit Court of Madison County at Jackson.

Honorable Whit A. Lafon, Judge 

Larry C. Sanders,

GARRETY & SANDERS, P.C., Jackson, Tennessee

Attorney for Plaintiffs/Appellants.

Blake Anderson, Jackson, Tennessee

Attorney for Defendant/Appellee, Daivd Woolfork, Individually.

James I. Pentecost,

WALDROP & HALL, P.A., Jackson, Tennessee

Attorney for Defendants/Appellees Sheriff David Woolfork and Madison County, Tennessee.

OPINION FILED:

AFFIRMED AND REMANDED

FARMER, J.

CRAWFORD, P.J., W.S. : (Concurs)

LILLARD, J. : (Concurs)

Plaintiffs Erica Rebecca Hurd, deceased, by and through her parents and next friends,
Charles and Virginia Hurd, and Cortney Deshaun Ragland, a minor, by and through his next friend,

Wanda Kay Grimes, appeal the trial court’s order dismissing their wrongful death actions against

Defendants/Appellees Madison County and David Woolfork, Madison County’s Sheriff. We affirm.

In their respective complaints, the Plaintiffs sued Sheriff Woolfork and Madison

County for the wrongful deaths of Plaintiff Erica Rebecca Hurd and Charles Edward Ragland,

Plaintiff Cortney Deshaun Ragland’s father. It is further alleged that Hurd and Ragland were killed

by one Farris G. Morris, Jr., on September 17, 1994. A warrant for Morris’s arrest had been issued

on September 7, 1994, but Sheriff Woolfork’s office had not executed the warrant by September 17,

1994, the date Hurd and Ragland were killed.

Specifically, the Plaintiffs’ complaints contained the following factual allegations:

5. On or about August 23, 1994, Farris G. Morris, Jr. was

arrested and charged with aggravated rape in Madison County,

Tennessee. On or about August 30, 1994, a preliminary hearing was

held on the aggravated rape charges against Morris and sufficient

evidence was found to believe that such crime had occurred and the

case was bound over to the Madison County Grand Jury. On or about

September 7, 1994, a warrant for Morris’ arrest charging violation of

the terms of his probation from a 1992 drug sale conviction. Such

arrest warrant was duly signed by a properly authorized judge and

delivered to David Woolfork, Sheriff of Madison County, Tennessee.

6. The said David Woolfork, in direct violation of the

duties imposed upon him under the provisions of T.C.A. §8-8-201

engaged in extremely reckless conduct by failing to promptly and

properly process said warrant for Morris’ arrest although the said

David Woolfork and/or members of the Madison County Sheriff’s

Department knew or should have known of the dangerous and violent

propensity of the said Morris to commit serious acts of bodily harm

and despite having been informed by the neighbors of the said Morris

of his continuing course of conduct that threatened the members of

the neighborhood in which Morris resided. Said arrest warrant of

September 7, 1994, was never even processed by the said David

Woolfork or members of his staff until after September 17, 1994.

7. David Woolfork’s continuing course of reckless

conduct in failing to process the warrant for the arrest of the said

Morris and his gross negligence in failing to even discover that such

warrant had been properly delivered to his office for processing

continued until after September 17, 1994.

The complaints further alleged, respectively, that on September 17, 1994:
1

Prior to granting the Defendants’ motions to dismiss, the trial court entered an agreed

order consolidating the cases. 

Morris brutally beat and stabbed young Erica Rebecca Hurd to death

while she was visiting her sister who resided in the same duplex in

which Morris was known by the Defendant to be living.

. . . .

. . . Morris brutally murdered and killed Charles Edward

Ragland by shooting him in the head with a shotgun. The said

Charles Edward Ragland lived and resided in the same duplex in

which the said Morris was known by the Defendants to be living. 

In seeking to hold Sheriff Woolfork and Madison County liable for the deaths of Hurd and Ragland,

the Plaintiffs alleged the following causes of action:

The reckless conduct of David Woolfork and his failure to

fulfill the duties imposed upon him by T.C.A. §8-8-201 and the gross

negligence of the named Defendants in failing to fulfill the duties of

the Sheriff’s office directly and proximately led to the violent

death[s] of [Erica Rebecca Hurd and Charles Edward Ragland] for

which each of the above-named Defendants should be held both

jointly and severally liable. The further reckless and grossly

negligent conduct of the Defendant, David Woolfork, in devoting his

time and attention to the political aspects of his elected position rather

[than] to fulfilling the duties statutorily imposed upon him by T.C.A.

§8-8-201, constitutes a separate and distinct cause of action for which

the said David Woolfork should be held individually responsible. 

Contending that the complaints failed to state claims upon which relief could be

granted, the Defendants subsequently filed motions to dismiss pursuant to rule 12.02(6) of the

Tennessee Rules of Civil Procedure. As grounds for their motions, the Defendants argued that the

Plaintiffs’ wrongful death actions were barred by (1) the public duty doctrine of governmental

immunity and, alternatively, (2) discretionary function immunity. The trial court granted the

motions, and this appeal followed.1 

Our supreme court recently summarized the standard to be applied by a court in

addressing a motion to dismiss a complaint for failure to state a claim upon which relief can be

granted:

Such a motion pursuant to Tenn. R. Civ. P. 12.02(6) tests the legal
2T.C.A. §§ 29-20-101 to 29-20-407 (1980 & Supp. 1996).

sufficiency of a complaint; it admits the truth of all relevant and

material allegations, “but asserts that such facts do not constitute a

cause of action as a matter of law.” Pursell v. First American

National Bank et al., [937 S.W.2d 838, 840] (Tenn. 1996) (emphasis

added).

In ruling on such a motion, courts must construe the

allegations in the plaintiff’s favor and accept allegations of fact as

true. However, the inferences to be drawn from the facts or the legal

conclusions as set forth in a complaint are not required to be taken as

true. Dobbs v. Guenther, 846 S.W.2d 270, 273 (Tenn. App. 1992).

Riggs v. Burson, No. 03-S-01-9603-CV-00032, 1997 WL 102427, at *2 (Tenn. Mar. 10, 1997)

(emphasis in original). We agree with the trial court’s ruling that, even accepting their allegations

of fact as true, the Plaintiffs’ complaints fail to state claims upon which relief can be granted.

PUBLIC DUTY DOCTRINE

InEzell v. Cockrell, 902 S.W.2d 394, 404 (Tenn. 1995), the supreme court confirmed

that the public duty doctrine had survived the enactment of Tennessee’s Governmental Tort Liability

Act (GTLA).2 In defining the public duty doctrine, the court explained that:

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.

Kelly M. Tullier, Governmental Liability for Negligent Failure to

Detain Drunk Drivers, 77 Cornell L. Rev. 873, 886 (1992). The

doctrine can be traced to the United States Supreme Court’s decision

in South v. Maryland, 59 U.S. (18 How.) 396, 15 L. Ed. 433 (1855),

which held that a sheriff is not liable for failing to protect a kidnap

victim because the sheriff’s duty to keep the peace was “a public

duty, for neglect of which he is amenable to the public, and

punishable by indictment only.” Id. at 403.

Ezell, 902 S.W.2d at 397.

In Ezell, the plaintiff’s husband was killed and the plaintiff was seriously injured by

an intoxicated driver. Ezell, 902 S.W.2d at 396. Earlier in the evening, the police chief of the City

of Elkton had permitted the driver to operate an intoxicated friend’s car when the police chief
3The Plaintiffs suggest that Ezell was wrongly decided and that, contrary to the supreme

court’s holding therein, the legislature did not intend for the public duty doctrine to survive

passage of the GTLA. In support of this contention, the Plaintiffs cite the GTLA’s following

language:

Wherein immunity from suit is removed by this chapter, consent to

be sued is granted and liability of the governmental entity shall be

determined as if the governmental entity were a private person.

T.C.A. § 29-20-206 (1980) (emphasis added). The Plaintiffs then argue that:

This section was completely overlooked in the Ezell decision. On

its face, . . . it commands the courts to adjudicate the liability of

governmental entities as if they were private persons. Since

private persons are not protected by the public duty doctrine,

neither are governmental entities or their agents.

While the Plaintiffs raise an interesting argument with regard to construction of the GTLA, we

are unwilling to presume that the supreme court, in deciding Ezell, was unaware of the cited

language in section 29-20-206. More importantly, however, this Court is not at liberty to depart

from precedent decisions of the supreme court of this state. Estate of Schultz v. Munford, Inc.,

650 S.W.2d 37, 39 (Tenn. App. 1982).

allegedly knew, or should have known, that the driver also was intoxicated. Id. The plaintiff sued

the City of Elkton and its police chief based on the police chief’s negligence in failing to arrest the

intoxicated driver. Id. at 396-97. Reaffirming the viability of the public duty doctrine, the court

concluded that the doctrine barred the plaintiff’s suit. Id. at 404.

We similarly conclude that the allegations of the Plaintiffs’ complaints bring their

actions against Sheriff Woolfork and Madison County within the public duty doctrine of

governmental immunity. The Plaintiffs’ theory of negligence was that the Sheriff failed to promptly

and properly process the warrant for the arrest of Farris G. Morris, Jr. A sheriff’s duty to keep the

peace, however, includes the execution of arrest warrants and is a public duty, “not owed to any

individual in particular.” Ezell, 902 S.W.2d at 397. Under the circumstances of this case, therefore,

the public duty doctrine bars the Plaintiffs’ present actions against Sheriff Woolfork and Madison

County.3

Although ourresearchrevealedno reported Tennessee decisions addressing thisissue,

we note that our conclusion is supported by a Texas court’s decision in Munoz ex rel. Martinez v.

Cameron County, 725 S.W.2d 319 (Tex. Ct. App. 1986). There, the plaintiffs brought a wrongful

death action against Cameron County and the county sheriff, alleging that the death of the plaintiffs’

mother was caused by the sheriff’s failure to execute an arrest warrant. Munoz, 725 S.W.2d at
319-20. Pursuant to a complaint filed by the decedent, an arrest warrant had been issued for the

decedent’s husband charging him with aggravated assault. Id. at 320. Although the Sheriff received

the warrant on October 17, by November 6 the Sheriff still had not executed the warrant. On that

day, the warrant was withdrawn after the decedent’s husband agreed to turn himself in to police.

Apparently, however, the husband did not turn himself in as promised. On November 16, he shot

and killed the decedent. Id.

Holding that the plaintiffs’ action was barred by the public duty doctrine first set forth

in South v. Maryland, the court reasoned:

[W]e can find no case in which a sheriff or other law enforcement

officer has been held liable for personal injury damages for failure to

execute a criminal warrant of arrest.

. . . .

. . . [I]t goes without saying that a sheriff has a duty to execute

an arrest warrant that comes to his hand, much the same as he has a

duty to keep and maintain the peace.

. . . .

We believe the rule of South v. Maryland applies to the

present situation. The purpose of the warrant of arrest is to bring the

accused lawbreaker to court to answer for the commission of an

alleged offense and is not to prevent future crimes from occurring.

Munoz, 725 S.W.2d at 321-22.

SPECIAL DUTY EXCEPTION

The Plaintiffs contend, however, that the public duty doctrine does not apply in this

case because the allegations of their complaints bring their actions within the special duty exception

to the doctrine. In adhering to the public duty doctrine in Ezell, the supreme court recognized the

continuing viability of the special duty exception to the doctrine’s no-liability rule. Ezell, 902

S.W.2d at 401. The special duty exception 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.” Id. In Ezell, the court undertook to further
refine the special duty exception and concluded that application of the exception should be limited

to the following three circumstances:

1) [When] officials, by their actions, affirmatively undertake to

protect the plaintiff, and the plaintiff relies upon the undertaking;

2) [When] 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) [When] the plaintiff alleges a cause of action involving intent,

malice, or reckless misconduct.

Id. at 402.

Despite its recognition of the special duty exception to the public duty doctrine, the

court concluded that the exception did not apply in Ezell. Regarding the first circumstance, the court

explained that:

The plaintiff’s allegations do not support application of a

“special-duty” of care. Neither [the police chief] nor the City of

Elkton had, by their actions, affirmatively undertaken to protect the

plaintiff. In fact, [the police chief] never had any contact with the

plaintiff; thus, the defendants had taken no action which would have

caused the plaintiff to particularly rely upon them for protection.

Ezell, 902 S.W.2d at 403. The court also rejected the plaintiff’s argument that a special duty of care

arose from certain statutes pertaining to drunk driving, public intoxication, and the general authority

and responsibility of police officers to enforce laws and make arrests. The court reasoned that:

Such statutes neither impose a mandatory duty to arrest every

motorist suspected of driving under the influence, nor authorize

negligence actions against police officers who do not arrest every

suspected drunk driver.

Id. Finally, the court concluded that the third circumstance did not apply because the plaintiff’s

allegations did not establish intentional, malicious, or reckless conduct but, instead, established only

simple negligence. Id.
After careful consideration, we likewise conclude that none of the foregoing

circumstances apply in this case and, thus, that the special duty exception does not prevent dismissal

of the Plaintiffs’ actions. As in Ezell, neither Sheriff Woolfork nor Madison County had, by their

actions, affirmatively undertaken to protect the decedents in this case, Hurd and Ragland. According

to the Plaintiffs’ complaints, the Madison County Sheriff’s Department had “been informed by the

neighbors of the said Morris of his continuing course of conduct that threatened the members of the

neighborhood in which Morris resided.” The complaints contain no allegations, however, that either

of the Plaintiffs’ decedents had contacted, or been contacted by, Sheriff Woolfork or the Sheriff’s

Department concerning Morris’s threatening conduct. The complaints also contain no allegations

that the decedents relied upon Sheriff Woolfork or his department to provide them with protection

from Morris. Cf. Miller v. Niblack, No. 02A01-9505-CV-00101, 1996 WL 578492, at *6 (Tenn.

App. Oct. 9, 1996) (concluding that special duty exception applied where, pursuant to state contract,

defendants affirmatively undertook to accurately record plaintiffs’ court-ordered blood tests and

plaintiffs were justified in relying upon defendants to do so), perm. app. denied (Tenn. Mar. 3,

1997).

Even in Munoz, where the plaintiffs’ decedent was the victim of the aggravated

assault for which the arrest warrant was issued, the Texas court still concluded that no special

relationship existed between the sheriff and the decedent. The court stated:

Our inquiry then is whether this duty to timely execute a

warrant is owed to a particular person or is owed to the public

generally.

. . . .

The exceptions to this rule of non-liability appear mainly to

be where a special relationship is created between the victim and the

agency or officer. . . .

. . . .

In reviewing the summary judgment evidence, we find no

evidence that could be construed as creating a special relationship

under the . . . cited cases between the deceased and the . . . sheriff. In
the absence of a special relationship, no liability exists at common

law.

Munoz, 725 S.W.2d at 321-22.

We also reject the Plaintiffs’ contention that the second part of the special duty

exception applies by virtue of Tennessee Code Annotated sections 8-8-201(1) and 8-8-207. Section

8-8-201(1) imposes upon sheriffs the duty to:

Execute and return, according to law, the process and orders

of the courts of record of this state, and of officers of competent

authority, with due diligence, when delivered to the sheriff for that

purpose.

T.C.A. § 8-8-201(1) (1993). Section 8-8-207 further provides that:

A sheriff’s disobedience of the command of any process is a

contempt of the court from which it issued, and may be punished

accordingly; and such sheriff is further liable to the action of the

party aggrieved.

T.C.A. § 8-8-207 (1993) (emphasis added).

Citing the foregoing language, the Plaintiffs contend that the special duty exception

applies in this case because section 8-8-207 specifically provides for a cause of action against the

sheriff by imposing liability against him for his failure to obey the command of any process. We

conclude, however, that the exception does not apply because the Plaintiffs are not members of the

particular class of individuals referred to in the statute. Specifically, the Plaintiffs do not qualify as

aggrieved parties for purposes of section 8-8-207 because the Plaintiffs are not parties to the

underlying action for which the arrest warrant was issued. The only parties to that action were the

State of Tennessee and Farris G. Morris, Jr. See Mallder v. Rasmussen, 495 N.E.2d 1356, 1357-58

(Ill. App. Ct. 1986) (concluding that, where Illinois statute similarly provided that sheriff who

disobeys command of any writ, warrant, process, order, or decree shall be liable to “party

aggrieved,” sheriff’s liability under statute was limited to “parties to the proceeding”); cf.Maxwell v.
4

Inasmuch as we have concluded that the public duty doctrine bars the Plaintiffs’

lawsuits, we need not address the issue of whether the Sheriff’s failure to execute the arrest

warrant constituted a discretionary act. Under the GTLA, a governmental entity is immune from

suits for injuries arising out of a governmental employee’s performance of, or failure to perform,

Hixson, 383 F. Supp. 320, 324 (E.D. Tenn. 1974) (concluding that, under predecessor of T.C.A. §

8-8-207, party to judicial attachment or garnishment proceeding could recover from sheriff any

damage sustained by party as result of sheriff’s false or unlawful return of process), aff’d, 425 U.S.

927 (1976).

Finally, we reject the Plaintiffs’ contention that the special duty exception applies in

their cases because their complaints allege causes of action involving reckless conduct. It is true that

both Plaintiffs’ complaints allege that Sheriff Woolfork “engaged in extremely reckless conduct”

by failing to promptly process the warrant for Morris’s arrest. The allegation that Sheriff Woolfork

engaged in “reckless” conduct, however, is a legal conclusion. See Sheiman v. Lafayette Bank &

Trust Co., 492 A.2d 219, 223 (Conn. App. Ct. 1985) (concluding that mere use of word “reckless”

in complaint is insufficient to raise actionable claim because allegation of reckless conduct is

conclusion of law);Hearon v. City of Chicago, 510 N.E.2d 1192, 1195 (Ill. Ct. App. 1987) (holding

that complaint’s allegation of recklessness was legal conclusion unsupported by allegations of

specific acts). In ruling on the Defendants’ motions to dismiss, the trial court, and this court on

appeal, are not required to accept such legal conclusions as true. Riggs v. Burson, No.

03-S-01-9603-CV-00032, 1997 WL 102427, at *2 (Tenn. Mar. 10, 1997). Only the complaints’

factual allegations must be accepted as true. Id. The only alleged factual basis for the Plaintiffs’

claims of reckless conduct is that Sheriff Woolfork was “devoting his time and attention to the

political aspects of his elected position rather [than] to fulfilling the duties statutorily imposed upon

him by T.C.A. §8-8-201.” At most, these factual allegations establish simple negligence. Ezell, 902

S.W.2d at 403.

In accordance with the supreme court’s decision in Ezell v. Cockrell, 902 S.W.2d 394

(Tenn. 1995), we hold that the public duty doctrine of governmental immunity bars the Plaintiffs’

present lawsuits against Sheriff Woolfork and Madison County and, further, that the Plaintiffs’

complaints fail to contain allegations which would bring the Plaintiffs’ actions within the doctrine’s

special duty exception.4
a discretionary function. See T.C.A. § 29-20-205(1) (1980); see generally Bowers ex rel.

Bowers v. City of Chattanooga, 826 S.W.2d 427, 430-32 (Tenn. 1992). In declining to address

this issue, we reject the Plaintiffs’ argument that the public duty doctrine applies only to acts

involving the exercise of discretion. Rather, we interpret Ezell to mean that the public duty

doctrine exists in addition to, and independent of, the exceptions to the waiver of governmental

immunity expressly listed in the GTLA. See Ezell, 902 S.W.2d at 400 (citing T.C.A. §

29-20-205(1)--(8) (1980 & Supp. 1994)). If the public duty doctrine were to apply only to acts

involving the exercise of discretion, as the Plaintiffs urge, then the doctrine would be subsumed

by the GTLA’s discretionary function exception.

The trial court’s judgment is affirmed. Costs of this appeal are taxed to Appellants,

for which execution may issue if necessary.

_______________________________

FARMER, J.

______________________________

CRAWFORD, P.J., W.S. (Concurs)

______________________________

LILLARD, J. (Concurs)