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 accident which occurred on a State

highway in Loudon County. The State filed a Motion for Summary Judgment, arguing it was

entitled to judgment as a matter of law under the defense of discretionary function immunity. The

Tennessee 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 part; Case Remanded.

D. MICHAEL SWINEY,J., delivered the opinion of the court, in which HOUSTON M. GODDARD, P.J.,

and CHARLES D. SUSANO, JR., 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

 Plaintiffs also alleged in the Complaint that the S tate was liable for violation of Tenn. Code Ann. § 9-8-

307(a)( 1)(C), bu t this claim is no t an issue on appeal. 

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OPINION

Background

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

pulled her vehicle onto U.S. Highway 11, also known as State Route 2 (“Highway 11"), from a stop

sign at Shaw Ferry Road in Loudon County. After entering Highway 11, Bolton’s vehicle was hit

from the rear by another vehicle. Bolton sustained serious physical injuries in 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

State Claims Commission and named the State of Tennessee as defendant. In the Complaint,

Plaintiffs contended the Shaw 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 Complaint that the State was liable for violation of Tenn. Code

Ann. § 9-8-307(a)(1)(I) “by negligently planning, inspecting, designing, and 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, filed a Motion for Summary Judgment.

The State argued, in its motion, that it was entitled to judgment as a matter of law because it was

immune from suit on Plaintiffs’ claims. The State argued its decisions regarding whether to install

a traffic control device at the intersection and whether to reconfigure or reconstruct the intersection

were discretionary decisions. In support of its motion, the State filed the deposition testimony of

Paul Beebe, who in 1994 was a traffic 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. Thereafter, 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 Shaw Ferry Road. Beebe also recommended to TDOT 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 he was aware federal funds were available to correct and install

traffic control devices on state highways.
2

 In addition to Tenn . R. App . P. 9, the State ’s appeal from the Claims Commission to this Court is made

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

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Plaintiffs filed a response (“Response”) to the Motion for Summary Judgment. In

their Response, Plaintiffs agreed the State was entitled to immunity on the issue of Defendants’

failure to install a traffic device since this decision was a discretionary function. Plaintiffs argued,

however, the State was not immune from their other claims under Tenn. Code Ann. §§ 9-8-

307(a)(1)(I) & (J) and that there 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’ Response, filed an affidavit of Beebe in which Beebe

stated the section of Highway 11 that includes the intersection was 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 this section of Highway 11. Beebe’s affidavit also provided that “[a]s for

sight distance standards or guidelines 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 permission to file an interlocutory appeal. The Claims Commission denied the State’s

motion to alter or amend judgment but granted 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 exactly stated 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 Plaintiffs’ claims under the common law defense of discretionary

function immunity. The State, in its reply brief, however, concedes it is not entitled to summary

judgment on Plaintiffs’ claim that the portion of Highway 11 that includes the intersection was

negligently designed or constructed but instead argues Plaintiffs did not raise this claim at the trial

level.

Plaintiffs contend the Claims Commission correctly denied the State’s Motion for

Summary Judgment and argue the State is not entitled to discretionary function 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, however, concede the State is entitled to judgment as
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a matter of law under the discretionary function immunity defense for its decision whether or not to

install a traffic control device at the intersection. 

Our Supreme Court outlined the standard of review 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. Since our inquiry involves purely a question of

law, no presumption of correctness attaches to the lower court's judgment,

and our task is confined to reviewing the record to determine whether the

requirements of Tenn. R. Civ. P. 56 have been met. See Hunter v. Brown,

955 S.W.2d 49, 50-51 (Tenn.1997); Cowden v. Sovran Bank/Central South,

816 S.W.2d 741, 744 (Tenn.1991). Tennessee Rule of Civil Procedure 56.04

provides that summary judgment is appropriate where: (1) there is no genuine

issue with regard to the material facts relevant to the claim or defense

contained in 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

satisfies these requirements. See Downen v. Allstate Ins. Co., 811 S.W.2d

523, 524 (Tenn.1991). When the party seeking summary judgment makes a

properly supported motion, the burden shifts to the nonmoving party to set

forth specific facts establishing the existence of disputed, material facts

which must be resolved by the trier of fact. See Byrd v. Hall, 847 S.W.2d at

215. 

To properly support its motion, the moving party must either affirmatively

negate an essential element of the non-moving party's claim or conclusively

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 claimed basis for the suit,

the non-moving party's burden to produce evidence establishing the existence

of a genuine issue for trial is not triggered and the motion for summary

judgment must fail. See McCarley v. West Quality Food Serv., 960 S.W.2d

at 588; Robinson v. Omer, 952 S.W.2d at 426. If the moving party

successfully negates a claimed basis for the action, the non-moving party may

not simply rest upon the pleadings, but must offer proof to establish the

existence of the essential elements of the claim.

The standards governing the assessment of evidence in the summary

judgment context are also well established. Courts must view the evidence

in the light most favorable to the nonmoving party and must also draw all

reasonable inferences in the nonmoving party's favor. See Robinson v. Omer,
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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 facts 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 150, 153 (Tenn.1995); Carvell v. Bottoms, 900

S.W.2d 23, 26 (Tenn.1995).

Staples, 15 S.W.3d at 88-89.

“‘[T]he State of Tennessee, as a sovereign, is immune from suit except as it consents

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 Tennessee Claims Commission to hear and

adjudicate monetary claims against the State, and the jurisdiction of the Claims Commission is

outlined in Tenn. Code Ann. § 9-8-307(a). If Tenn. Code Ann. § 9-8-307(a) does not contain a

particular monetary claim, the State is immune 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 determination of the state’s liability 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 pertinent part, as follows:

(a)(1) The commission or each commissioner sitting individually has

exclusive jurisdiction to determine all monetary claims against the

state based on the acts or omissions of “state employees,” as defined

in § 8-42-101(3), falling within one (1) or more of the following

categories: . . . 

(I) Negligence in planning and programming for, inspection

of, design of, preparation of plans for, approval of plans for, and

construction of, public roads,streets,highways, or bridges and similar

structures, and negligence in maintenance of highways, and bridges

and similar structures, designated by [TDOT] as being on the state

system of highways or the state system of interstate highways.

(J) Dangerous conditions on state maintained highways. The

claimant under this subsection must establish the foreseeability of the

risk and notice given to the proper state officials at a time sufficiently

prior to the injury for the state to have taken appropriate measures.
3

 This Court in Waters v . State held that, while our Supreme Court in Bowers v. City of Chattanooga 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 applicable to actions against the State where the State raises the defense of common law immunity.

Waters v . State, 1998 Tenn. App. LEXIS 844, at * 3.

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Furthermore, under Tenn. Code Ann. § 9-8-307(d), “‘the State may assert the

common law immunity 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 immune from suit for discretionary acts 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 are 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 427, 431 (Tenn. 1992)). A planning, or

discretionary, decision has been described as follows:

“If a particular course of conduct is determined after consideration or

debate by an individual or group charged with the formulation of

plans or policies, it strongly suggests the result is a planning decision.

. . .” Such decisions “often result from assessing priorities; allocating

resources; developing policies; or establishing plans, specifications,

or schedules. . . .” Additionally, it must be taken into consideration

whether the decision is the type properly reviewable by a court. “The

discretionary function exception ‘recognizes that courts are illequipped to investigate and balance the numerous facts that go into

an executive 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 this 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 defenses,

including common law defenses . . .” and “absolute common law immunities,” except for good faith

common law immunity, which would be available to individual state employees or officers for the

same occurrence. Tenn. Code Ann. § 9-8-307(d). Moreover, this Court, in Waters v. State, applied

the discretionary function immunity defense to claims brought under Tenn. Code Ann. §§ 9-8-
-7-

307(a)(1)(I) & (J) and affirmed 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 summary judgment as a matter of law on Plaintiffs’ claim that the State is liable

for its failure to install a traffic control device or make any correction to the intersection. Although

not specifically stated as such in the Complaint, this claim correlates to Plaintiffs’ claim that the

intersection constituted a “dangerous condition” 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

interpreting this statutory section, held that whether the condition of a highway constitutes a

“dangerous condition” is a question of fact, holding, in pertinent part, as follows:

“The decision of whether a condition of a highway actually is a dangerous

and hazardous one to an ordinary prudent driver is a factual one, and the court

should consider the physical aspects of the roadway, the frequency of

accidents at that place in the highway and the testimony of expert witnesses

in arriving at this factual determination. . . .”

Sweeney v. State, 768 S.W.2d 253, 255 (Tenn.1989) (quoting Holmes v. Christopher, 534 So.2d

1022, 1026 (La. App. 4th Cir. 1983)). 

Plaintiffs conceded, both at the Claims Commission and on appeal, that the State is

entitled to discretionary function immunity for its decision whether 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 should have granted 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 portion of Plaintiffs' claim that the intersection constitutes a dangerous

condition is based upon their argument that the State failed to otherwise 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 not satisfy its summary judgment 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 establish

that it was entitled to the discretionary function defense, relied only upon the deposition testimony

and affidavit of TDOT Traffic 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, function. See Waters v. State, 1998 Tenn. App. LEXIS 844, at * 5-7 (holding the

Claims Commission correctly found the State's decision not to install guardrails on a road was

discretionary as the proof showed that TDOT could not yet improve the road due to, in part,

economic limitations). At best, Beebe testified only that he saw problems with the intersection,
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made recommendations regarding how to correct the intersection, and knew about sources for

funding for corrective measures made to state highways. The record before this Court does not

contain undisputed material facts specific to assessing priorities, allocating resources, developing

policies, or establishing plans, specifications or schedules relevant to correcting any dangerous

condition of the intersection. Accordingly, the proof contained in the record is not sufficient 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 from the record before us that the State has, as a matter of law, met its burden to

justify summary judgment being granted based on this affirmative defense. Because the State failed

to establish this affirmative defense, we hold the Claims Commission correctly denied the State's

Motion for Summary Judgment on Plaintiffs’ 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 available to the State as to Plaintiffs’ claim the State failed to

correct the dangerous condition of the intersection. However, based upon the record before us, the

State has 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 argument on appeal that the Claims Commission erred

in failing to grant it summary judgment on Plaintiffs’ claim that the State is liable for the negligent

planning and construction of the intersection in 1924. On appeal, the State agrees with Plaintiffs 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 this claim at the trial level. The State argues it is “too late” for Plaintiffs to make this

allegation, essentially arguing Plaintiffs waived this issue. See Dep’t of Human Serv. v. DeFriece,

937 S.W.2d 954, 960 (Tenn. 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 appeal, 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 record 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 the State’s concession that this issue,ifraised by Plaintiffs below,

is not ripe for summary judgment is appropriate. The State’s concession was based upon its

acknowledgment that discretionary function immunity would not protect the State from any

negligent design and construction of the intersection in 1924. “The State has a duty to exercise

reasonable care under all the attendant circumstances in planning, designing, constructing and

maintaining the State system of highways [and] . . . owes this duty to persons lawfully traveling

upon the highways of Tennessee.” Goodermote v. State, 856 S.W.2d 715, 720 (Tenn. Ct. App.
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1993) (citing Tenn. Code Ann. § 9-8-307(a)(1)(I)). This specific issue or claim concerns whether the

State breached 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 reasonable care as the record does not show whether the State complied with the

plans for the construction of the intersection and whether those plans complied with industry

standards as they existed in 1924. See id. (holding the State breached its duty to exercise reasonable

care in the construction of a bridge on I-24 by its failure to comply with the plans and, therefore, was

liable under Tenn. Code Ann. § 9-8-307(a)(1)(I)). Beebe’s affidavit, as relevant to this claim,

provides only that Beebe, a TDOT traffic 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,

failed to 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 correctly

denied the State’s Motion for Summary Judgment on 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 Commission’s judgment relative to the State’s

decision not to install a traffic control device and hold that the State is entitled to summary judgment

on Plaintiffs’ claim based upon the State’s decision regarding whether or not to install a traffic

control device. The remainder of the Claims Commission’s judgment is affirmed. This cause is

remanded to the Claims Commission for such further proceedings as may be required, consistent

with this Opinion, and for collection of the costs below. The costs on appeal are assessed against

the Appellant, the State of Tennessee.

___________________________________ 

D. MICHAEL SWINEY, JUDGE