# FILED May 6, 1997 Cecil Crowso n, Jr. Ap pellate Co urt C lerk IN THE COURT OF APPEALS OF TENNESSEE, W ESTERN 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, C HARLES and VIRGINIA ) HURD, and CORTNEY DESHAUN ) RAGLAND,

a minor, by

and through his ) next friend, WANDA KAY GRIME , ) ) Plaintiff

s/Appella nts. )

) VS. ) C. A. NO. 02A01-9607-CV-00170 ) DAVID WOO LFORK, indivi dually and ) as an agent, servant, employee, Sheriff, ) and repre sentative of MAD ISON ) COUNTY, TE NNESSEE and ) MADISON C OUNTY, TENNESSEE, ) ) Defend ants/Appe

llees. )

)

______________________________________________________________________________ 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 Plain tiffs/App ellants.

Blake Anderson , Jackson, Tennessee Attorney for Defendant/Appellee, Daivd W oolfork, Individually. James I. P

entecos t , WALDROP & HALL, P.A., Jackson, Tennessee Attorney for Defendants/Appellees Sheriff Da vid Woolfork and Madison County, Tennessee.

OPINION FILED: AFFIRMED

AND REMA NDED FARMER, J.
CRAWFORD, P.J., W.S. : (Concur s) LILLARD, J. : (Concur s)

Plaintiffs Erica Rebecca Hurd, deceased, by and through her pare nts and next

friends ,Charles and Virginia Hurd, and Cortney Deshaun Ragland, a minor, by and through his next fr iend, Wanda Kay Grim

es, appe al the tri al court ’s order dismissing t

heir wro ngful dea

th action s again st Defendants/Appellees Madison County and David Woolfork, Madison County’s Sheriff. We aff irm
.

In their respective complaints, the Plaintiffs sued Sheriff Woolfork an d Mad ison County for the wrongful deaths of P laintiff Er ica Rebecca Hurd and Charles Edwa rd Ragland, Plaintiff Cortney Deshaun Ragland’s father. It is further alleged that Hurd and Ragland were killed by one Farr

is G. Morr

is, Jr., on September 17, 1994. A warrant for Morris’s ar rest had been

issued
on September 7, 1994, but Sheriff Woolfork’s office had not execute d the warrant by September 17, 1994, the date Hurd and Ragland were killed.

Specific ally, the

Plaintiff s’ compla ints conta ined the f ollowing f

actual a llegation s:

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 rap e 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 h is probation from a 1992 drug sale conviction. Such arrest warran t was duly

s igned by a properly authorized judge and delivered to David Woolfork, Sheriff of Madison County, Tennessee. 6. The said David Wool fork, in direct violation of the duties imposed up on him unde r the pro visi ons of

T.C.A. §8-8-201 en gagedin extremely reckless conduct by failing to prompt ly an d properl y processsaid war

rant for Morris’ arrest although t he said David Woolfork and/or members of the Madison County Sheriff’s Department

knew or s hould

have known of the dangerous and violent propensity of the said Morris to commit serious acts of bodily harm and despite having beeninformed by the neighbors of the said M orris of his continuing course of cond uct tha t threatened the members of the neighborhood in which Morris resided. Said arrest warra nt of September

7, 1994, was never e

ven proc essed by t

he said D avid Woolfork or members of his staff until after September 17, 1994. 7. David

Woolfork’ s co ntinuing c ourse of reckle ss conduct in failing

to proce ss the war

rant for the a rrest 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 agree d

order consolidating the cases.

Morris brutally beat and stabbed young Erica Re becca H urd to death while she was visiting her

sister wh o reside d in the sa me duplex

in which Morris was known by the Defendant to be living.

. . . .

. . . Morris brutally murdered and ki lled Charles Edward Ragland by shooting him in the head with a shot gun. The s aid Charles Edward Ragland lived and resided in th e same du plex 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 an d his failure to fulfill the dutie s imposed u

pon him by T .C.A. §8- 8-201 an d the gros s negligence of the named Defendants in failing to fulfill the duties of the Sheriff’s office directly and proximately led to the vi olent death[s ] of [Erica Rebecca Hurd a nd Charles Edward Ragland] for which each of the above -named Defend ants shoul d be held b oth jointly and severally liable. T he further reckle ss and gro ssly negligent conduct of

the Defe ndant, Da vidWoolfor

k, in devo ting 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 actionfor which the said David Woolfork should be held individually responsible.

C ontending that the complaints failed to state claims upon which relief c ould b e granted, the Defendants subsequently filed motions to d is miss pursuant to rule 12.02(6) of the Tennessee Rules of Civil Procedure. As grounds for their motions, the Defendants argued that the Plaintiff s’ wrongful death actions were barre d by (1) the pub lic duty doctrine of governmental immun ity and, a lternatively, (2) discretionary function immunity. The trial court granted the motions, and this appeal followed. 1

Our supreme court recently summarized the stand ard to be a pplied by a court in addressing a motion to d ismiss a co mplain t for failure to state a claim upon which relief can be granted:

Such a m otion pursuant to Tenn. R. Civ. P. 12.02(6) tests the legal2 T.C.A. §§ 29-20-101 to 29-20-407 (1980 & Supp. 1996). sufficiency of a co mp laint; it admits the truth of all relevant and material allegations, “but asserts that such facts d o not con stitute a cause of action as a matter of law.” Pursell v. F irst Americ an National Bank et al. , [937 S.W.2d 838, 840] (Te nn. 1996) (emphas is added). In ruling on such a m oti on, courts must construe the allegations in the plaintiff’s favor and accept allega tions o f fact as true. However, the inferences to be dra wn from the fac ts or the legal conclusions as set fo

rth in a compla int are n ot requir

ed 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) (emphas is 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 c an be granted.

PUBLIC DUTY DOCTRINE

In Ezell v. Co ckrell , 902 S.W.2d 394, 404 (Tenn. 1995), the supreme court confirmed that the public

duty doctr

ine had su rvived the enact

ment of Te

nnessee ’s Gover

nmental T ort Liabi lity Act (GTLA). 2 In defin

ing the pub lic duty do ctrine, the cour t explain ed that:

The public duty doctrine o rigina ted at common-law and shield s a pub lic employee from suits for injuries that are caused by the public employee’s breach of a duty owed to the public at lar ge. KellyM. Tullier, Governmental Liability for Negl igent Failure to Detain Drunk Driv er

s , 77 Cornell L. Rev. 873, 886 (1992). The doctrine can be tr

aced to t he United States Supr

eme Court’s decision in South v. Mary land , 59 U.S. (18 How.) 396, 15 L. Ed. 433 (1855), which held that a s heriff is not liable for failing to protect a kidnap victim because the sheriff’s duty to keep the pea ce wa s “a publi c duty, for neglect of which he is ame nable 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 theplaintiff 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 intoxica te d friend’s car when the police chief3 The Plaint iffs sugg est that Ezell

was wron gly decid

ed and tha

t, contra ry to the s upreme 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 f rom suit is r

emoved by

this chap ter, con sent 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) (e mphasis a dded). T he Plaintif

fs then a rgue tha t: 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 gove rnmenta l entities or their a

gents. 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 cour t of this state. Estate of Schultz v. Munford, Inc. , 650 S.W.2d 37, 39 (Tenn. App. 1982). alleged ly knew, or

should have known, that the driver also was intoxicated. Id . The plaintiff sued the City of Elkt

on and its p olice ch

ief base d on the po lice chie f’s negl igence in failing to

arrest the intoxicated driver. Id . at 396-9 7. Reaff irmi ng the viab ility of the public duty doctrine, the court concluded that the doctrine barred the plaintiff’s suit. Id . at 404.

We similarly c onclude t

hat th e alle gations of

the Plainti ffs’ co mplaints br ing 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 a rrest of Farris G. Morris, Jr. A sheriff’s duty to keep the peace, however, includes the execution of arrest w arrants and is a public duty, “not owed to any individual in particular.” Ezell , 902 S.W.2 d at 397. U nder the circumst ances of this case, therefore, the public duty doctrine bars the Plaintiffs’ present actions against Sheriff Woolfork and Madison County. 3
Although our research revealed no reported Tennessee decisions add ressing this issue , 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. 1 986). The re, the p laintiff

s brought a

wrongful death action against Cameron County and the county sheriff, alleging that the death of the plaintiff s’ mother was caused by the sheriff’s failure to e xecute a n arrest warrant. Munoz , 725 S.W.2d at319-20. Pursuant t o a compla

int f iled by the decedent, an arrest warr ant 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 hi mself in topolice. Appare ntly, howe

ver, the husband d

id not turn

himself in as promised. On November 16, he shot and killed the decedent. Id
.

Holding that the p laintiff

s’ action was bar red by the public dut

y doctrine first se

t forth in South v. Mary land , the court reasoned:

[W]e c an find no case in which a sheriff or other la w enforc emen t officer has been held liable for personal injury damagesfor fail ure to execute a crimina

l warra nt of arr est.

. . . .

. . . [I]t goes without saying that a she riff hasa 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. Mary land applies to the present situation. The purpose o f the war rant of a rrest is to bring the accused lawbreaker to court to answer for the commission of an alleged offense and is not to prevent future cr imes from occurring.

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

SPECIAL DUTY EXCEPTION

The Plaintiff

s contend , howeve

r, that the public dut

y doctrine does no t apply in th is
case because the alleg ations of

their co mplaints br

ing their a ctions wit hin the special duty exception to the doctrine. In adher

ing to the public duty doctrine in Ezell , the supreme court recognized the continuing viability of the special duty exception to the doctrine’s no -liabilit y rule. Ezell , 902 S.W.2d at 401. Th

e specia l duty exc eption ap

plies “wh ere a ‘ specia

l relationship’ exists between the plaintiff and the public employee, which giv es 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 furtherrefine the special duty exception and concluded that applica tion of the

excepti on should

be limited to the foll owing three circu mstance s:
1) [When] officia

ls, by thei r action s, affir

matively u

ndertak e 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 aparticular class of individ

uals, 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, o r reckl ess misconduct.

Id . at 402.
Despite

its recog nition of th

e specia l duty exc eption to

the public duty doctrine, the court concluded that the

excepti on did not a

pply in Ezell . Regarding the first circumstance, the court explaine d that:

The plaintiff ’s allega tio ns do n ot support application of a “special-du ty” of care. Neither [the police chie f] nor the City of Elkton had, by their

actions, affirma

tivelyundertaken to protect the pl aintiff. In fact , [the pol ice chie f] neve r had any contact w ith th e 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 argume nt thata special duty of

care
arose from certain statutes pertaining to drunk driving, public intoxica tion, and t he gene ral auth ority and resp onsibility o f police office rs to enf orce la ws and ma

ke arre sts. The c ourt rea soned tha t:

Such statutes neit

her im pose a mandatory duty to arrest every motorist sus pecte d of driving under the influence, nor authorize negligence actions agai nst po lice officers who do not arrest every suspected drunk driver.

Id
. Fin ally, the court concluded that the third circumstance did not apply beca use the plaintiff’s allegations did not establish intentional, malicious, or reckless conduct but, instead, establish

ed only simple negligence. Id
.Aft erca reful 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 Pla intiffs’ actions. As in Ezell , neither Sheriff Woolfor k nor Madi son County h ad, by the ir actions, affirma

tively und ertake n to prote ct the de cedentsin 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 membe rs of the neighborhood in which Mo rris res ided.” T

he compla

ints conta in no allegations, however, that either of the Plaintiffs’ decedents had contacted, or bee n contacted by, Sheriff Woolfork or the Sheriff’s Department

concer ning Morr

is’s thre atening c onduct. The complaints also contain no allegations that the decedents relied upon Sheriff Woolfork or his depar tment to pr

ovide the m 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 exce ption appl ied wher e, pursua nt to state contract, defenda nts affirmatively unde rtook to accurately record plaintiffs’ cour t-ordered blood tests and plaintiffs were j ustified in relying upon defendants to do so), perm. app. denied (Tenn. Mar. 3, 1997).

Even in Munoz , where the plain tiffs’ decedent w as the victim of the aggravated assault for which the arrest warrant wa s issued, the Texas court still concluded that no specia l relationship existed between the sheriff and the dec edent. The court stated:

Our inquiry then is whe

ther this d

uty to timel

y execute a warrant is owe d to a part icular p erson or is owed to t

he public generally.

. . . . The exceptions to this rule of non- liability a ppear ma inly to be where a

special relation ship is created between the victim and the agency or officer. . . .

. . . . In reviewing the summ ary judgm ent e vi dence, we find no evidence that coul d be cons trued as creating a speci al r elation ship under the . . . cited cases between the decea sed and the . . . sheriff. Inthe 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 s econ d part of the spec ial 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 of fice rs of competent authority, with due diligence, when delivered t o the sh eriff for that purpose.
T.C.A. § 8- 8-201(1) (1993). S ection 8- 8-207 fur ther pro vides tha

t:

A sheriff’s disobedience of the co mmand of a ny proce ss is a c ontemptof the court from which it issued, and may be puni she d accordingly; and such sher iff is further liable to theaction of t he 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 specifica lly provides for a cause of action aga in st the sheriff by imposing l iabi lity 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 aggrieve d parties for purposes of section 8-8-207 because the Plaintiffs are not parties to t h e underlying action for which the arr est warr ant was is sued. The

only parties to that action were the Stateof Tennessee and

Farris G. Morris, Jr. See Mallder v. Rasmussen , 495 N.E.2d 1356, 1357-58 (Ill. App. Ct. 19 86) (concluding th at, wher e Illinoisstatute simil ar ly provided that sheriff who disobeys command of any writ, warrant, proce ss, order , or decr ee shall be liable

to “part y aggrieve d,” she riff’s liability un der statu te was limi

ted to “pa rties to th e proce eding”) ; cf. Maxwell v.4 Inasmuc h as we ha ve conc luded tha

t the public

duty doctr

ine barsthe Plainti ffs’ lawsuits, we need

not addre ss the issue

of whether the She

riff’s f ailure to execute the arr est warrant constituted a discretionary act. Under the GTLA, a governmental entity is immune from suits for injuries a

rising out o f a gover

nmental e mployee’ s perfor

mance of , or failu re to per form, Hixson , 383 F. Supp. 320, 324 (E.D. Tenn. 1974) (concluding that, under predec essor of T.C.A. § 8-8-207, party to ju dicia

l at tachment or garnishment proceeding could recove r from sheriff any damage sustained by partyas result of sheriff’s false or unlawful re turn 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 co mplaints a

llege ca uses of a ction invo lving rec

kless con duct. It is true that bothPlaintiff

s’ compla ints alleg e that She

riff Woo lf

ork “engag ed in extr

emely re ckless c onduct” by failing to

promptly process the warrant for Morris’s ar rest. The allegation that Sheriff Woolfork engaged in “reckless” conduct, however, is a lega l conclusion. See Sheiman v. Lafayette Bank & Trust Co. , 492 A.2d 219, 223 (Conn. App. Ct. 1985) (concluding that mere use of word “r eckless ” in complain

t is insuff

icient to raise act ionable c laim beca use alle gation of

reckle ss conduc t is conclusion of law); Hearon v. City of Chicago , 510 N.E.2d 1192, 1195 (Ill. Ct. App. 1987) (holding that complain

t’s alleg ation of recklessness was legal conclusion unsupported by allegations of specific acts). In ruling on the Defendants’ motions to dismiss, the t ri al court, and this court on appeal, are not required to accept such lega l conclus ions as true. Riggs v. Burson , No. 03-S-01-9603-CV-00032, 1997 WL 102427, at *2 (Tenn. Mar . 10, 1997). On ly the com

plaints’ factual allegations must be accepted as true. Id . The only alleged fa ctual ba si s for the Plaintiff s’ cl aims of reckless conduct is that Sheriff Woolfork was “de voting his time and attention to th e political aspects of his ele cted position rathe r [than] to fulfilling the duti es statuto rily imposed upon him by T.C.A. §8-8-201.” At

most, these

factua l allegat ions esta blish simple negligence. Ezell , 902 S.W.2d at 403.

In accordance with the supreme cour t’s de c ision in Ezell v. Co ckrell , 902 S.W.2d 394 (Tenn. 1995), we hold that the public duty doctrine of governme

ntal immunity bars the

Plaintiff s’ present lawsuits aga in st Sheriff

Woolfor k and Mad

ison County

and, fur ther, tha t the Plaint

iffs’ complain ts fail to co ntain alle gations wh ich would bring the Plaintiffs’ actions within the doctrine’s special duty exception. 4a discretionary function. See T.C.A. § 29 -20-205( 1) (1980) ; see gene rally Bowers ex r

el. Bowers v. City of Chattanooga , 826 S.W.2 d 427, 430- 32 (Tenn . 1992). I n declini ng to addr

ess this issue, we reje ct the Pla intiffs’ argumen

t that the p

ublic duty

doctrine applies o nly to act s involving t

he exer cise of d iscretio n. Rather , we inter pret Ezell to mean th at the pub lic duty doctrine exists in addition to, and independent of, the exceptions to the waiver of gover nmental immunity expressly listed in the GTLA. See Ezell , 902 S.W.2d at 400 (citing T.C.A. § 29-20-20 5(1)-- (8) (198 0 & Supp. 199 4)). If the public

duty doctr

ine were to apply on

ly 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 ap peal ar e taxed t o Appella nts, for which execution may issue if necessary.

_______________________________ FARMER, J.

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

______________________________ LILLARD , J. (Concurs)