### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE June 27, 2002 Session

JANET BOLTON, ET AL 

### . v. STATE OF TENNESSEE

Appeal from the Claims Commission No. T96000358 Michael S. Lacy, Commissioner

FILED AUGUST 6, 2002
No. E2001-02960-COA-R9-CV

Janet Bolton and Jack Bolton (“Plaintiffs”) sued the State of Tennessee (“State”), alleging the State
was liable for

injuries Janet Bolton received in a motor vehicle accide

nt which occurre

d on a State highway in Loudon County. The State filed a Motion

for Summary Judgme

nt, arguing i t was entitled to judgmentas a matter of law under the defense of discretionary function immunity. The Tennesse e Claims Commission denied the motion. The State appeals. We affirm, in part, and reverse, in part, and remand.

Tenn. R. App. P. 9 Interlocutory Appeal by Permission; Judgment of the Claims Commission Affirmed, in part, and Reversed, in par

t; Case Remanded.

D. M ICHAEL S WINEY , J., delivered the opinion of the court, in whichH OUSTON M. G ODDARD , P.J., and C HARLES D. S USANO , J R ., J., joined.
Paul G. Summers, Michael E. Moore and Laura T. Kidwell, Nashville, Tennessee, for the Appellant, State of Tennessee.

Joe E. Guess and Samuel A. Guess, Knoxville, Tennessee, for the Appellees, Janet Bolton and Jack Bolton.1 Plaint iffs al so allege d in the Compl aint that the S ta te was li able for vi

olation of

Tenn. Code Ann. § 9-8- 307(a)( 1)(C), bu t this claim is no t an issue on appeal.
-2- OPINION Background

In September 1995, Janet Bolton was involved in a motor vehicle accident when she pulled her vehicle onto

U.S. Highway 11, al

so known as State Rou

te 2 (“Highway 11 "), from a stop sign at Shaw Ferry Road in Loudon County. After entering Highway

11, Bolton’s vehicl

e was hit from the rear by anoth

er vehicle. Bolton

sustained serious

physical injuries i

n the accident

and her husband, Jack Bolton, claimed loss of consortium. The record shows that the section of Highway 11 that includes the intersection was constructed in 1924.

Janet Bolton and her husband, Jack Bolton, filed a Complaint in May 1996, with the StateClaims Commission and named the State of Tennessee as def endant. In the Comp

laint, Plaintiffs contended the S haw Ferry/Highway 11 intersection (“intersection”) was dangerous and that the State had notice of the intersection’s defective condition. Plaintiffs claimed the State was liable for its failure to install safety devices at the intersection and to otherwise correct the dangerous intersection. Plaintiffs alleged in the Complaintthat the State was liable for violation of Tenn. Code Ann. § 9-8-307(a)(1 )(I) “by neglige ntly planning, inspe

cting, designing, a

nd maintaining of [ sic] its highways . . .” and Tenn. Code Ann. § 9-8-307(a)(1)(J) by “causing dangerous conditions to exist on state maintained highways.” 1

The State, in addition to filing an Answer, fi led a Motio n for Summary Judgme nt. The State argued, in its motion, that it was entitled to judgmenta s a matter of law because it was immune from suit on Plaintiffs’ claims. The State argued its decisions rega

rding whether to in

stall
a traffic control device at the intersection and whether to reconfigure or reconstruc t the intersection
were discretionary de

cisions. In support

of its motion, the Stat

e filed the deposi

tio n testi mony of Paul Beebe, who in 1994 was a traff ic engineer for the Tennessee Department of Transportation (“TDOT”). The record shows Beebe testified that in 1994, at the request of Loudon County officials, he conducted a study of the intersection and found the intersection had limited sight distance. Beebe found the sight distance was limited to 50 mph. The

reafter, in 1994, pursuant to Beebe’s findings , TDOT cut back trees and

brush at the intersection and installed crossroad signs, a 40 miles per hour advisory speed plate, and stop bars for S haw Ferry Road. Be

ebe also recomme

nded toTDOT and Loudon County that a flashing beacon at the intersection was warranted. Beebe testified it is the responsibility

of the individual county to install traffic lights. Beebe testified he sent a memorandum in September 1994 to the TDOT regional director regarding his recommendations. Beebe did not know how the regional director determined how to allocate the funds available for road work. The record shows Beebe also testified hewas aware fed eral funds were

available to correct and in

stall traffic control

devices on state h

ighways.2 In addition to Tenn . R. App . P. 9, the State ’s appeal from the Claims Commission t o this Court

is made pursuant to Tenn. Code A nn. § 9-8-403(a)(1). -3-

Plaint iffs filed a response (“Response”) to the Motion for Summary Judgment. In their Response, Plaintiff

s agreed the State

was entitled to im

munity on the issue of Def endants’ failure to install a traffi

c device since th

is decision was a

discretionary function. Plaintiffs argued, howe ver, the State was not immune from their other claims under Tenn. Code Ann. §§ 9-8

- 307(a)(1)(I) & (J) a nd that t here were genuine issues of material fact which precluded a grant of summary judgment as a matter of law to the State.

The State, in reply

to Plaintiffs’ Respo

nse, filed an aff

idavit of Beebe in

which Beebe stated the section of Highway 11 that includes the intersectionwas constructed in 1924 and had not been redesigned or reconstructed since then. Beebe further stated, in his affidavit, that TDOT had re-paved and maintained thi

s section of Highwa

y 11. Beebe’s aff

idavit also

provided that

“[a]s for sightdistance standar

ds or guid

elines in effect at the time of the construction of this section of [Highway 11], I am not aware of any such standards or guidelines.”

The Claims Commission entered an Order in May 2001, denying the State’s Motion for Summary Judgment. The Order did not provide the basis for the Claims Commission’s decision other than stating that “genuine issues of material fact exist which will require a

trial of this matter.”
Thereafter, the State

filed a motion to alter or amend judgment or, in the alternative, motion for permissi

on to file an interl

ocutory appeal.

The ClaimsCommission denied the State’s motion to alter or amend judgment but gr anted its motion for permission to file an interlocutory appeal. This Court then allowed the State’s interlocutory appeal pursuant to Tenn . R. App . P. 9. 2

Discussion
On appeal and although not exact ly state d as such, the State raises the following issue: whether the Claims Commission erred in denying the State’s Motion for Summary Judgment because the State is immune from Plainti

ffs’ claims under

the common law def

ense of discretionary function immunity. The State, in its reply brief, however, co ncedes it is no t entitled to summary judgmenton Plaintiffs’ claim that the po rt ion of Highway 11 that includes the intersection was negligently

designed or const

ructed but instea

d argues Plaintiff

s did not raise this

claim at the trial level.
Plaint iffs cont end the Claims Commission correctly denied the State’s Motion for Summary Judgment and argue the State is not entitled to discretionary f un ction immunity for the negligent design and construction and the dangerous condition of the intersection under Tenn. Code Ann. §§ 9-8-307(a

)(1)(I) and (J

). Plaintiffs, howe

ver, concede th

e State is entitled to judgment as-4-

a matter of law under the discretionary function immunity de fense for its dec

ision whether or n

ot to install a traffic control device at the intersection.

Our Supreme Court outlined the standard of re view of a motion for summary judgment in Staples v. CBL & Assoc. , 15 S.W.3d 83 (Tenn. 2000):

The standards governing an appellate court's review of a motion for summary judgment are well settled

. Si nce our in quiry involves purely a question of law, no presumption of c orrectness a

ttaches t o the lower court

's judgment, and our task is confined to reviewing the reco rd to determine whether the
r equirements

of Tenn. R. Civ. P. 56 have been met. See Hunt er v. Brown , 955 S.W.2d 49, 50-51 (Tenn.1 997); Cowden v. Sovran Bank/Central South, 816 S.W.2d 741, 744 (Tenn.1991). Tennesse e Rule of Civil

Procedure 56.04 provides that summary judgment is appropriate where: (1) there is no genuine issue with regard to the material fa cts relevant to the claim or defense containedin the motion, see Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.1993); and (2) the moving party is entitled to a judgment as a matter of law on the undisputed facts. See Anderson v. Standard Register Co. , 857 S.W.2d 555, 559 (Tenn.1993). The moving party has the burden of proving that its motion
sa tisfies these requirements. See Downen v. Alls tate Ins. Co. , 811 S.W.2d 523, 524 (Tenn.1991).

When the party

seeking summary

judgment makes a properly support ed motion, the burden shifts to the nonmoving party to set forth specific facts e

stablishing the e

xistence of dispute

d, material fact

s which must be resolved by the trier of fact. See Byrd v. Hall, 847 S.W.2d at 215.
To pro p erly suppor

t its motion, the moving

party must e

ither affirmativ

ely negate an essential elemen

t of the non-moving

party's c laim or conclusive

ly establish an affirmative defense. See McCarley v. West Quality Food Serv. , 960 S.W.2d 585, 588 (Tenn.1998); Robinson v. Omer , 952 S.W.2d 423, 426 (Tenn.1997). If the moving party fails

to negate a cla

imed basisfor

the suit, the non-movin g part

y's burden to produce evidence establishing the existence of a genuine issue for trial is not triggered and the motion for summar y judgment must fail. See McCarley v. West Quality Food Serv ., 960 S.W.2d
a t 588; Rob inson v. Omer , 952 S.W.2d at 426. I f the moving part

y successfully

negates a claimed basis for the action, the non-moving party may notsimply rest upon

th e pleadings, but must offer proof to establish the existence of the e

ssential elements

of the claim.
The standards gove

rning the assess

ment of evidence

in th e summa

ry judgment context are also well established. Courts must view the evidence in the light most favo

rable to the nonmov

ing party a

nd must also draw a

ll reasonable

inferences in thenonmoving party's favor. See Robinson v. Omer ,-5- 952 S.W.2d at 426; Byrd

v. Hall , 847 S.W.2d at 210-11. Courts should grant
a summary judgment only when both the fac ts and the inferences to be drawn from the facts permit a reasonable person to reach only one conclusion. See McCall v. Wilder , 913 S.W.2d 1 50, 153 (Tenn.1995 ); Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn.1995). Staples , 15 S.W.3d at 88-89.

“‘[T]heState of Tennesse e, as a sovereig

n, is immune from suit

except as it conse

nts to be sued.’” Stewart v. State , 33 S.W.3d 785, 790 (Tenn. 2000) (quoting Brewington v. Brewington , 387 S.W.2d 777, 779 (Tenn. 1965)). Our State Constitution provides that “[s]uits may be brought against the State in such manner and in such courts as the Legislature may by law direct.” Tenn. Const. art. I, § 17. Our State Legislature created the Te nnessee Claims Commission to hear and adjudicate

monet ary clai ms against the State , and the jurisdict

ion of the Claims Commis sion is outlined in Tenn. Code Ann. § 9-8-307(a). If Tenn. Code Ann. § 9-8-307(a ) does not conta

in a particular monetary claim, the State is i mmune from suit

for that monetary claim, and the claimant may not seek relief from the State for that claim. Stewart v. State , 33 S.W.3d at 790. In addition, Tenn. Code Ann. § 9-8-307(c) provides that “[t ]he determinatio

n of the state’s lia

bility in tort shall be based on the traditional tort concepts of duty and the reasonably prudent person’s standard of care.” The statute upon which Plaintiffs rely, Tenn. Code Ann. §§ 9-8-307(a)(1)(I)& (J), provides, in perti

nent part, as foll

ows: (a)(1) The commission or each commissioner sitting

individually

has exclusive jurisdiction to dete rmine all monetar

y cla ims aga inst the state based on the acts or omissions of “state employees,” as defined in § 8-42-101(3), f

alling within one (1 ) or mo re of the following categories: . . . (I) Negligence in planning and programming for, inspection of, design of, preparation of plans for, appr oval of plans for, and construction of, public road s, streets, highw ays, or bridges and similar structures, and negligence in maintenance of highways, and bridges and similar stru ctures , designated by [T DOT] as being on th

e state system of highways

or the state system

of interstate high

ways. (J) Dangerous condi

tions on state

maintained highways. The claimant under this subsection must e

stablish the fores

eeability of the risk and notice given to

the proper state

officials at a time

sufficiently prior to the injury f

or the state to hav

e taken appropr

iate measures.3 This Court in Waters v . State hel d th at, whi le our

Supr eme Court in Bowers v. Ci ty of Chatt

anooga applied the planning-op erational test to an action ag ainst a mu nicipality u nder the T ennessee Gover nmen tal Tort Lia bility Act, the test was

also appl

icable t o actions against t

he State wher

e the Stat

e raises the defens e of common l aw i mmu nity. Waters v . State , 1998 Tenn. App. LEXIS 844, a t * 3.
-6- Furthermore, under Tenn. Code Ann. § 9-8-307(d), “‘the State may assert the
common law imm unity which has developed in this State with regard to discretionary actions of State employees.’” Waters v. State , No. 03A01-9808-BC-00243, 1998 Tenn. App. LEXIS 844, at * 2-3 (Tenn. Ct. App. Dec. 17, 1998), no appl. perm. app. filed , (quoting Cox v. State , 844 S.W.2d 173, 176 (Tenn. Ct. App. 1992 )). The State is immu ne from suit for dis

cretionary act

s under this defense. Courts, when determining whether a particular decision of the State is discretionary, are to apply the planning-operational test. Id. , at * 3; Cox v. State , 844 S.W.2d at 176. When using the planning-operational test, courts ar e to consider “‘(1) the decision-making process and (2) the propriety of judicial review of the resulting decision.’” Waters v. State , 1998 Tenn. App. LEXIS 844, at * 3 (quoting Bowers v. Chattanooga, 826 S.W.2d 42 7, 43 1 (Tenn. 1992)). A planning, or discretionary, d

ecision has been

described as fol

lows:
“If a particular co

urse of conduct is

determined after consideration or debate by an individual or group charged with the form ulat ion of plans or policies,it strongly suggests the result is a planning decision.

. . .” Such decisions “

often result from

assessing prioriti

es; allocating resources;developing policie s; or establishing plans, specifica tions, or schedules. .

. .” Additionally, it must be taken into consideration whether the decision is the type properly reviewable by a court. “The discre tio nary function excepti on ‘recognizes

that courts are il

lequi pped to investigate and balance the nume

rous facts that go

in t o an e xecuti ve or legislative decision’ and therefore allows the government

to operate without undue interference from the courts.

. . .”
Id. , at * 3-4 (citations omitted) (quoting Bowers v. City of Chattanooga , 826 S.W.2d at 430). 3

Plaintiffs contend the defense of discretionary function immunity is not available to the State

for claims under Tenn. Code Ann. §§ 9-8-307(a)(1)(I) & (J). The plain language of the statute, itself, however, does not provide that this defense does not apply to claims made under Tenn. Code Ann. §§ 9-8-307(a)(1)(I) & (J) or that the State is prohibited from asserting t his defense

to these claims. Instead, the statute, after outlining the claims for which the Claims Commission has jurisdiction in Tenn. Code Ann. § 9-8-307(a)(1), provides the State “may assert any and all defe

nses, including common law defenses . . .” and “absolute common law immunities,” except for good f aith
common law immunity, which would be available to individual state employees or officers for the
sameoccurrence. T

enn. Code Ann. § 9- 8-307(d). Moreo ver, thisCourt, in Waters v. State , applied the discretionary f

unction immunity def

ense to claims b

rought under Tenn. Code Ann. §§ 9-8--7-

307(a)(1)(I) & (J) and affirme d the dismissal of the

action because

it found the State was entitled to the defense. Id. , at * 2-8.

We now address

the State’s argument on appeal that the Claims Commission erred in failing to grant it s

ummary judgment as

a matter of law on

Plaintiffs’ claim t

hat the State is liab

le for its failure to insta

ll a traffic cont

rol device or mak

e any correctio

n to the intersection. Although notspecifically stated as such in the Complaint, this claim correlates to Plaintiffs’ clai m that the intersection constituted a “dangerou s conditi on” under Tenn. Code Ann. § 9-8-307(a)(1)(J). The statute does not provide a definition of “dangerous condition.” Our Supreme Court, however, when inte rpreting this statutory section, held that whether the condition of a highway cons titutes a “dangerous cond

ition” is a question o

f fact, holding, in

pertinent part, a

s follows:
“The decision of whether a conditio n of a highway actually is a dangerous and hazardous oneto an ordinary prudent driver is a factual one, and the court should consider the physical aspects of the roa dway, the frequency of accidents at that place in the highway and the testimony of expert witnesses in arriving at this factual determination. . . .”
S weeney v. State , 768 S.W.2d 253, 255 (Tenn.1989) (quoting Holmes v. Christophe r , 534 So.2 d 1022, 1026 (La. App. 4 th Cir. 1983)).

Plaintiffs conceded, both at the Claims Commission and on appeal, that the State is entitled to discretionary function immunity fo r its decision whet

her or not to

install a traffic control device. Accordingly, this was not an issue in dispute before the Claims Commission, and is not an issue in dispute on appeal. Therefore, we hold the Claims Commission shou ld have grant ed the State's Motion for

Summary Judgment on Plaintiffs’ claim relating to the State’s decision of whether or not to install a traffic control device, and we reverse this portion of the Order.

The second portio

n of Plaintiffs'

claim that the inte

rsection constitut

es a dangerous condition is based upon their argument that the State failed to ot her wise correct the intersection’s dangerous defects. The State contends it is entitled to discretionary function immunity on this claim
as well. While discretionary function immunity applies to claims such as the one made under Tenn. Code Ann. § 9-8-307(a)(1)(J), and even though the State’s decision regarding the correction of the intersection’s defects may well be a discretionary, or planning, decision, the record before us shows the State did notsatisfy its summary j udgment burden of establishing this

affirmative defense. See Staples v. CBL & Assoc. , 15 S.W.3d at 88. The record shows the State, in attempting to esta blish that it was entitled to the discretionary function defense, relied only upon the deposition testimony and affidavit of TDOTTraffic Engineer Paul Beebe. Beebe's testimony and affidavit fall short of establishing that the State's decision not to correct the intersection's problems was a discretionary,
or planning, f

unction

. See Waters v. Stat e , 1998 Tenn. App. LEXIS 844, at * 5-7 (holding the Claims Commission correc tly found the State' s decision not to insta ll guardrai ls on a road was discretionary as t

he p roof showed that T

DOT could not yet imp

rove the road due

to, in part, economic limitations) . At be st, Beebe testified only that he saw problems with the intersection,-8-

made recommendations regarding how to correct the intersection, and knew about sources for fund ing for corrective measures made to state highways. The record before this Court does no t contain undisputed materi

a l facts specific to assessing priorities, allocating resources, developing pol icies, or establishing plans, specifications or schedules relevant to correcting any danger ou s condition of the intersecti on. Accordingly,

the proof contain

ed in the record i

s n ot suff icient to justify granting summary judgment to the State on this claim because of discretionary function immunity.
While

this may well have been a discretionary, or planning, decision, by the State,
we cannot hold

fr om the record bef

ore us that the Stat

e has, as a matter

of law, met its burd

en to justify summary judgment being granted based on this affirmative defense. Because the

State failed to establish this aff

irmative defense

, we hold the Claims Co

mmission correctl

y denie d the State 's Motion for Summary J

udgment on Plaintiff

s’ claim that the State failed to correct, by other than a traffic control device, the alleged dangerous condition of the intersection. We hold the defense of discretionary function immunity is av ailable to the State as to Plaintiff s’ claim the State f

ailed to correct the dangerous condition of the intersection. However, based upon the record before us, the Statehas failed to present undisputed material facts sufficient to show, as a matter of law, that this was a discretionary, or planning, function.

Next, we address

the State’s argum

ent on appeal tha

t the ClaimsCommission erred in failing to grant it s

ummary judgment on Pl

aintiffs’ claim

that the State is lia

ble for the negligent planning and construction o f the intersectio

n in 1924. On appea

l, the State agrees

withPlaintiffs that
a genuine issue of material fact exists regarding whether the intersection was negligently designed at the time of the construction of this section of Highway 11 in 1924, but contends Plaintiffs did not raise th is claim a

t the trial level. T

he State argues it

is “too late” for P

laintiffs to make th

is allegation, essentially arguing Plaintiffs waived this issue. See Dep’t of Human Serv. v. DeFriece, 937 S.W.2d 954, 960 (Te nn. Ct. App. 1996) (holding that “[i]t is well-settled that issues not raised at trial may not be raised for the first time on appeal”). The record on app eal, however, shows Plaintiffs alleged in the Complaint that the State is liable under Tenn. Code Ann. § 9-8-307(a)(1)(I) for “negligently planning , inspecting, designing , and maintaining of [sic] its highways. . . .” (emphasis

added). The rec

ord also shows Plaintiffs argued, in their Response to the Motion for Summary Judgment, that “[w]hether the State was negligent in the design or construction of a public

. . . highway pursuant to § 9-8-307(a)(1)(I) is a factual inquiry following the general principles of the law of negligence.” (emphasis added). Accordingly, we find Plaintiffs raised this allegation at the trial level.

In addition, we find th e State’s conces sion that this i ssue, if rai sed by Plaintiffs below, is no t ripe for summary judgment is appropriate. The State’s concession was based u pon it s acknowledgment

that discretionary func tio n immunity would not protect the State from any negligent design and constr

uction of the inter

section in 1924. “T

he State has a duty

to exercise reasonable

care under all the attendant circumstances in planning, des igning , constructing and maintai ning the State system of h ighways [and] . . .

owes this duty to per

sons lawfully trav

eli n g upon the highways of Tennessee.” Goodermote v. Sta te , 856 S.W.2d 715, 720 (Tenn. Ct. App.-9-

1993) (citing Tenn. Code

Ann. § 9-8-307(a

)(1)(I)). This

specific issue or claim concerns whether the Statebreached its duty of care when it designed and constructed the portion of Highway 11 that includes the intersection. The record on appeal contains no proof regarding whether the State met its duty to exercise rea

sonable care a

s the record doe

s not show whether

the State complied with the plans for the construc

tion of the interse

ction and whether

those plans complie

d with industr

y standards as they existed in 1924. See id. (holding the State b reached its duty t

o exercise reasonable
care in the construction of a bridge on I-24 by its failure to comply with the plans and, therefore, was liab le under Tenn. Code Ann. § 9-8-307(a)(1)(I)). Beebe’s affidavit, as releva nt to thi s claim , provides only that B eebe, a TDOT tra ffic engineer, is not aware of any sight distance standards or guidelines that were in

effect in 1924. Accordingly, the record shows the State, as the moving party, failedto satisfy its burden either to establish an affirmative defense or negate an essential element of this claim. See Staples , 15 S.W.3d at 88. Therefore, we hold the Claims Commission c orrectly deniedthe State’s Motion for Summary Judgmenton the issue of whether the State was liable, under Tenn. Code Ann. § 9-8-307(a)(1)(I), for the negligent design and/or construction of the intersection in 1924.
Conclusion

We reverse the portion

of the Claims Commissio n’s judgment rela

tive to the State’s decision notto install a traffi c control device

and hold that the State is entitled to summary judgment
on Plaintiffs’ cla

im b ased upon the State ’s decision rega rding whether or

not to install a traf

fic control device. The rem

ainder of the Clai

ms Commi ssion’ s judgment is affirmed. This cause is remanded to the Claims Commissio n for such further proceedings as may be require d, consistent withthis Opinion, and fo r collection of the

costs below. The costs on appea l are assessed a

gainst the Appellant, the State of Tennessee.

___________________________________ D. MICHAEL SWINEY, JUDGE