### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE July 8, 2002 S ession

JAMES R . CONE , dece ased, by next fr iend TIM

CONE v. STATE OF TENN ESSEE
Appeal from the Claims Commission of the State of Tennessee No. 20001588 W.R. Baker, Commissioner

No. M2001-02242-COA-R3-CV - Filed August 13, 2002

After his fathe r was kill ed while c

rossi ng r ailroad tracks located in Sumner County, Tim Cone (“Plaintiff”), as next friend and on behalf of his father James R. Cone, sued the State of Tennessee (“Defe ndant”) in the Claims Commission. Plaintiff claimed Defendant exercised control over the railroad crossing and was r

esponsibl e for the

dangero us conditi on at that

cross in g. Plaintif

f also claimedDefendant negligently deprived James R. Cone of certain st atutory r

ights. The

Claims Commis sion granted Defendant’s motion to dismiss for failure to state a claim upon which re lie f could be granted holding it did not have jurisdict ion over Pl aintiff’ s three c laims. Plaintiff app eals. We affirm in part, reverse in par t, and remand this case to the Claims Commission.

D. M ICHAEL S WINEY , J., delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and H ERSCHEL P. F RANKS , J., joined.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Claims Commissi on Affirmed in Part and Rever

sed in Part ; Case Re

manded.

Pamela R. O’Dwyer

and Randall D. Larramore, Chattanooga, Tennessee, and Joseph K. Dughman, Nashville, Tennessee, for the Appellant James R. Cone, dece ased, by next friend Tim Cone.

Pa ul G. Summers , Attorne

y Gener al and Re porter, Michael

E. Moore , Solicitor Genera l, and Michae l B. Leftwich, Assistant Attorney General, Nashville, Tennessee , for the Appellee State of Tennessee.-2- OPINION Background

On April 16, 1999, James R. Cone (“Cone”) was driving northbound on Harris Lane at its intersection with railroad crossing No. 343797D, located approximately .2 miles nort h of state highway 31F i n Sumner County. As Cone crossed the railroad tracks, his car was hit by a tra in, resulting in his death. Two lawsuits were filed by Tim Cone, as next friend and on behalf of h is deceased father. One lawsuit wa s filed in t he Circui t Court for

Sumner Cou

nty. The d

efenda nts in that suit were Sumner

County and the owner and operator of the train, CSX Transportation, Inc . In that lawsuit, Plaintiff alleged, inter alia , that Sumner County owned, operated, maint a ined, and controlled the roa

d on which

Plaintiff was driving at the t

ime of the

accide nt.
The second la

wsuit was filed ag ainst the S tate of Tenne ssee (“Defendant”) in the Claims Commission. It is this second lawsuit now before us on appeal. In the Amended Complaint filed against the State, Plaintiff alleged the crossi ng where the fata l accide nt occur red was a “highway” under both federal and state law. Plaintiff further c laimed th e State exercised control
over the highway “by the decision regarding, and provision of funding for, safety d evices f or said crossing,” and the State , theref ore, wa s liable

for its negligence pursuant to Tenn. Code Ann. §§ 9-8- 307(a)( 1)(C) and (a)(1)(J). Plaintiff also claimed a v iolation of various federal statutes and regulations pertaining to the saf ety of railroad crossings and the adequacy of w arnings. According to Plaintiff, since the State was a recipient of federa l funds under the

Fe deral Railway-Highway Crossings Pro gr am, 23 U.S.C. § 130, Tenn. Code Ann. § 4-3-2303 required the Commissioner of Transportation to comply with these federal laws, and the failure of the State to do so violated the statutory requirements of Tenn. Code Ann. § 4-3-2303.

There are three statutory provisions which Plaintiff maintains both provide a cause of action for the claims asserted in the Amended Complaint and confer jurisdict ion on the C laims Commission. These

statutory provisions are Tenn. Code Ann. §§ 9-8-307(a)(1)(C), (a)(1) (J), and (a)(1) (N), whi ch provid

e, in rel evant pa

rt, as fo llows:

9-8-307.... (a)(1) The commi ssion or e ach comm is sioner sitting indivi du ally has exclusive jurisdiction to determine all monetary cl aims against th

e state b ased on th

e acts or omissions of

"s tat e employees," as defined in § 8-42-101(3), falling within one (1) or more of th

e following categ ories:

* * * (C) Negligent ly created or maintai ned dangerous conditions on state cont

roll ed real property. The claimant under this subsection must

establish the foreseeability of the risks and notice given to the prop er stat e offic ials at a t ime-3- sufficie ntly prior to the injury fo r the state to have taken appropr iate mea sures;
* * * (J) Danger

ous condit

ions on sta

te maintain ed highways

. The claimant

under thi s subsect

ion must est

ablish the foreseeability of the risk and notice given to the proper state officia ls at a time

sufficie ntly prior to the injury for the state to ha

ve taken appropr iate mea sures;
* * * (N) Negligent deprivation of statutory rights created under Tennessee law, except for actions arising out of claims
over which the civil service commission has jurisdiction. The claimant must prove under this subd ivi sion that the general assembly express ly conferred a private right of action in favor of the claimant against the state for the state's violation of the particular statute's provisions; .... (emphasis added).

The State file d a moti o n to dismiss arguing Plaintiff failed to state a claim upon which relief could be granted

and the Cla

ims Commission d

id not have

jurisdict ion over Pl aintiff’ s claims. According to the State, the road upo n which the fatal a ccident happene d was a c ounty road which the State did not maintain or exerci se control over and, therefore, neither Te nn. Code Ann. §§ 9-8- 307(a)( 1)(C) nor (a)(1)(J) applied. The State further argued that Tenn. CodeAnn. §4-3-2303 did not express ly provide for a private right of action, and thus Tenn. Code Ann. § 9-8-307(a)(1)(N) neither created a cause of action nor conferred jurisdiction on the Claims Commission.

The Clai ms Commission granted the State’s Motion to Dismiss. In doing so, the Commission erconcluded the site where the accident occurr ed was not on state controlled real propert y or a state

maintained highway

and, ther efore, neither

Tenn. Cod

e Ann. §§ 9 -8-307( a)(1)( C)
nor (a)(1)(J) applied. The Commissioner also concluded Tenn. Code A nn. 4-3-2303 created no expressprivate right of actionand as such Tenn. Code Ann. § 9-8-307( a)(1)( N) was not applica

ble either. Based on t

he fore going, the

Commissione

r conclu ded Plaint

iff fail ed to state a claim upon which relief could be gran ted and the Claims Commission lacked subject matter jurisdiction. Plaintiffs claims were dismissed. Plaintiff appeals , claiming

the Amend

ed Complaint states a

claim upon which relief can be granted pursuant to Tenn. Code Ann. §§ 9-8-307(a)(1)(C), (a )(1)(J), and (a)(1)(N).1 Th e State subm itted an Affid avit in su ppo rt of its m otion to dism iss. It d oes not ap pe ar t he Cl ai ms Comm iss ion relied o n the con tents o f this A ffidav it wh en ru ling o n the mo tion to dism iss. The conclusions we reach today woul d no t b e a ff

ec te d r ega rd le ss of

whe th er we tre ated the St ate’ s moti on as a mot ion to di smiss or a moti on for
sum ma ry jud gm ent. -4- Discussion

Our standard of review as to the granting of a motion to dismiss is set out in Stein v. Davidson Hotel Co. , 945 S.W.2d 714, 716 (Tenn. 1997). In Stein , our Supreme Court explained:

A Rule 12. 02(6), Ten n. R. Civ. P., motion to dis miss for f ailure to stat e a claim up on which r elief ca n be gran ted tests o nly th e lega l suffi ciency of the complaint, not the strength of a plaintiff's pr oof

. Such a motion a

dmits the tr

uth of all r

elevant and mate rial ave rments containedin the complaint, but asserts that such fa cts do not constitute a cause of actio n. In con sidering a mo tion t o dismiss, courts should con strue the complain t liberally in favor of the plaintiff, taking all alleg ations of

fact as true, and deny the motion unle ss it appears that the pl aintiff can prove no set of facts in support of her claim that would entitle her to relief

. C ook v. Spinnaker's of Rivergate, Inc. , 878 S.W.2d 934, 938 (Tenn. 1994). In c onsid ering this appeal fro m the tria

l court's grant of

the defe ndant's mo tion to dismiss, we take all allegations of fact in the plaintiff's complaint as true, and revi ew the low er cour ts' legal c onclusion s de novo with no presumption of cor

rectne ss. Tenn. R. App. P. 13(d); Owens v. Trucksto ps of America , 915 S.W.2 d 420, 424 (Tenn. 199 6); Cook , supra
. As set forth

above, Tenn. Code

Ann. § 9-8 -307(a) (1)(C) v ests the Cl aim s Commission with jurisdiction for monetary claims arising from negligently created or maintained dangerous conditions “on state controlled real property. ” In th e Amended Complaint, Plaintiff specific ally alleges the State exercised contro lover the highway “by the decision regarding, and provision of funding for, safety devices for said crossing.” I n considering the motion todismiss, the Claims Commission was required to construe the Amend ed Complaint libera

lly infavor of Plaintiff, taking all allegations of fact as true. 1 Taking the factual allegations containedwithin the Amended Complaint as true, we cann ot say th at P laintiff can prov e no set of

facts tha t would en

title him to relief. Therefore, we believe Plaintiff adequately stat es a c laim upon which relief can be granted pursuant to Tenn. Code Ann. § 9-8-307(a)(1)(C). In rea ching this conclusion, we express no opinion
on whether

or not the

State eng aged in a

ny neglige

nt conduc t o r wh ether or

not the re al prope

rty actually was “controlled” by the state. We hold only that the Amended

Complaint s ufficie

ntly states a cause of action for purposes of withstanding a Rule 12 mot ion to dismis s and the C laims Commission was in er

ror whe n it dismisse d this claim for fai lure tostate a claim upon which relief could be granted.-5- Plaintiff, however, alleged few, if any, fa cts in support of

his claim i n the Amended Complaint that the State “maintained” the highway at issue. After taking the fac tual alle gations in the Amended Complaint as true, the Claims Commis sion prope rly conc luded Plaintiff fa

iled to state a claim upon which relief could be granted for a violation of Te nn. Code. Ann. § 9-8-307(a)(1)(J), and we affirm the Claims Commission’s ruling in this regard.

The third and final issue on appeal is whether Plai ntiff fai led to state a claim upon which relief could be granted pursuant to Tenn. Code Ann. § 9-8- 307(a)( 1)(N), w hich prov ides a
cause of action for negligent deprivation of state statutory rights. Plaintiff must prove the Tennessee “general assembly

express ly conferred a private right of action in favor of the claimant against the state ....” Plaintiff claims a violation of Tenn. Code Ann. § 4-3-2303 which, a mong other

things, places a duty on the Commissionerof Trans portation to “[a] pply for a

nd acce pt on beha

lf of the s tate any grant from the federal government to be used for any o f the pur

poses of t he depa rtment, and to comply with any conditions and limitations annexed ....” Accord ing to Plain

tiff, this state sta

tute pl aced an affirmative duty on the State to comply with numerous federal statutes and r egulation s since the State re ceived f

unds pursu ant to the

federa l Railway- Highway Crossings Pr ogram.
We have reviewed Tenn. Code Ann. § 4-3-2303 and c an find n o la nguage in that statute where the general assembly “expre ssly” conferred a private right of action for a violation of that statute’s provisions, nor has Plaintiff pointed us to any such language. See Madkins v. State , No. W2001-03002-COA-R3-CV, 2002 Tenn. App. LEXIS 387 at *6 (Tenn. Ct. App. May 29, 2002)(No Rule 11 app. for perm. to appeal filed)(“For every stat utory right allegedly violated by the State, [Plaintiff] must reference

explicit statutory language that would grant him the private right of action to enforc e the sta

tute.”) ; Taylor v. S

tate , N o. W2000-01467-COA-MR3-CV, 2001 Tenn. App. LEXIS 568 at *5, *6 (Tenn. Ct. App. Ju ly 31, 2001)(Rule 11 app. for perm. to appeal denied December

14, 2001)(“In order for the Claims Commission t o have jurisdictio n over [Pl aintiff’ s] action for negligent deprivation of statutory rights, there must be express language indicating that the legislature intended to create a private right of a ction. Consequently, ... [Plaintiff] must point to specific statutory languageconferring upon him a private right of action to enforce the statute.”). Ac cordingly, we affirm the Claims Commission’s ruling dismissing Plaintiff’s claim bro ugh t pursuant to Tenn. Code Ann. § 9-8-307(a)(1)(N) f or the alleged negligent deprivation of statutory rights set forth in Tenn. Code Ann. § 4-3-2303.
Conclusion

The judgment of the Claims Commission dismissing Plaintiff ’s claimspursuant

to Tenn. Code Ann. §§ 9-8-307 (a)( 1)(J) a nd (a)( 1)(N) isaffirme d. The jud gment of th

e Claims Commission dismissing Pl aintif f’s cl aim pursu ant to Ten n. Code An

n. § 9-8-3 07(a)( 1)(C) is-6-

reversed. This cause is remanded to the Claims Commission for further proceedings consiste nt with this Opinion, and for collection of the costs below. The costs on appeal a re asse ssed one- half

against the Appellant James R. Cone, deceased, by next friend Tim Cone, and his surety , and one -half against the Appellee State of Tennessee.

___________________________________ D. MICHAEL SWINEY, JUDGE