# FILED

March 17, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk STEVEN RAY COLEMAN, ) ) Plaintiff/Appell

ant, ) Appeal No.

) 01-A-01-9805-BC- 00239 v. ) ) Claims Com

mission STATE OF TENNESSEE, ) No. 301091 ) Defendant/Appellee. ) )
COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE TENNESSEE CLAIMS COMMISSION OF

DAVIDSON COUNTY, AT NASHVILLE, TENNESSEE

THE HONORABLE W. R. BAKER, COMMISSIONER

RAYMOND W. FRALEY, JR. JOHNNY D. HILL, JR. 205 East Market Street Post Office Box 57 2 Fayetteville,

Tennessee 37334 ATTORNEYS FOR PLAINTIFF/APPELLANT

JOHN KNOX WALKUP Attorney General and Reporter
MICHAEL E. MOORE Solicitor General
MARY M. BERS Assistant Attorney General Civil Rights and Claim

s Division Cordell Hull Buildin

g, Second Floor 426 Fifth Avenue No

rth Nashville, Tennessee 37243 ATTORNEYS FOR DEFENDANT/APPELLEE

AFFIRMED AND REMANDED

WILLIAM B. CAIN, JUDGE-2- 

# OPINION

This appea l inv olve s the j urisd ictio n of th e Tenn essee Claims Commission.

Plaintiff appeals

the dismissal by

the Claims C om mission of his claim filed under Tennessee Co de An notated section 9-8- 307(a)(1)(M) on th e basis that the Cla ims Comm ission lacks subject

matter jur

isdiction. For the

reasons stated in this opi nion, we affirm the de cision of the Claim

s Commissio

n to di smiss this claim.

On October 20, 1992, Tenne ssee Al cohol ic Beverage Com mission (ABC) S pecial Agent, Mark Hutchens, acting on information he received , contacted Bedford County S heriff Don Edwa

rds. Agent Hutche

ns sought the assistance of Sheriff Edwards and memb ers of his departm ent in the investigatio

n of a suspected drug tra

nsaction believed to b

e scheduled to take place that evening at the Rattlesnake Lodge in rural Bedford County, Tennessee. Sheriff Edwards agreed to a ssist and brought with hi m sheriff's d

eputies McCullough, Brown and Owens. ABC agents Jim Ray

and Jim Richar

dso n acco mp anied Agent Hutchens.
Agent Hutchens and Sheriff Edwards arri ved firs t at Rattlesnake L odge in an unmarked ca

r driven by Age

nt Hutchens. They

were followed by

o ther vehicles occupied by the ABC officers and sheriff's deputies. Upon arrival at the lodge, Hutchens and Edwa rds o bse rved two individuals standing beside a car outside of the lodge. These individuals were l ater id entified a s the claimant Steven Ray Coleman and Billy White.
Agent Hutchens and

Sheriff Edwards emerged from their ve

hicle and shouted their identity

as police officer

s. Coleman and W

hite ran from the scene into heavy grass area and toward t he nearby river. A gent Hutch ens raced in pursuit. He later

testified that som

eone fired shots

at him from the area to which Colemanand Wh ite had fl ed. Hutchens ret urned fire with tw

o shots from his weapon. Neither Colem

an nor White wer

e hit by this gunfire and

Hutchens did not fire again. White leaped

up from the gra

ss and raced to his lef

t disappearing from sight and was not apprehended by any of the officers. Claimant Colem an-3-

ran to his right toward the river, jum ped in the river and s

tarted to swim

across to t he opposite side. Gu nshots were fired

at him by pe

rsons never identifi

ed. One of these gunshots struck him while he was in the water and se riously injured him. He reached the op

posite bank of the rive

r and yelled to th

e officers for help assertingthat he had been hit.Officers and pa ramedics atte

nded him at the sc

ene and h e was d ispat ched f irst t o the B edfor d Cou nty Hos pital and fr om ther e transferred to Vanderbilt University Medical Center.
According

to claimant

Coleman, he had

been invited by Bi

lly White to participate

in a high stakes dice ga me at Rattles

nake Lod ge. In route to the lodge, his automobile overheated and he stopped at the home of his friend, Ricky Mencer, to b orrow an automobile and co ntinue his journey to t he lodge. He borrowed the automobile belon ging to Mencer's girlfr

iend, Deborah Coop

er, and drove on to the lodge where he and Billy White were awaiting the arrival of a "high fader." When

they saw the unm

arked car of

Hutchens and Edwards arrive, they thought they wer

e goi ng to be robbed and thereupon ran from the scene. Subsequently

a search warrant was issued for search of the Deborah Cooper automobile, and a

suitcase containing a

pproximately

ninety pounds of m

arijuana was taken from the trunk of the car.

Suit was brought by the

claimant in the

United States Dis

trict Court for the Eastern District

of Ten nessee against Bedf ord County and the

county personnel involved. T

he federal suit wa

s resolved before tr

ial.

The State of Tennesse

e and its empl

oyee s acting within the sc ope of their employm

ent are protected

by the doctrine o

f governmental

immunity

and thus can only be sued under statutory exceptions to this doctrine and only before the Tennessee Claim

s Commissio

n which has exclusive jurisdicti on to adjudicate the merits of claims un der sta tutory e xcepti ons to govern mental i mmunity. Colemanfirst filed his cla im alleging

several of the exceptions to governmental immunity provided by Tenn

essee Code Annotat

ed section 9-8- 307 . However, by agreed order the case was subsequently ente red for trial limited t

o section 9-8- 307(a)(1)(M). The applicable sta tutory provision a

s it existed in 1992 states: The commission or each co mmissioner

sitting-4- individually

has exclusive juri sdiction to dete rm ine all monetary claim s ag ainst the state fall ing within one (1) or more of the following categ ories: . . . (M) Negligent operatio

n of machinery

or equipment. Tenn. Code Ann. § 9-8-307(a)(1)(M)(1992).

T he claim was tried on oral evidence before W. R. Baker, Clai m s Commissioner, on January 23, 19 96. The Claim s Commissio

n dis missed the claim on the basis that it had no jurisdiction because Tennessee Code Annotated section 9-8-307(d) prohibit s judgment aga inst the State for " any willful, malicious or criminal act

s by state em

ployees." The

Claims Com

mission made

aspecific finding tha

t the shooting of Claim

ant was willful r

ather than negligent

an d that government

al immunity

had not been waived a

s to such willful act s under the specific provisions of section 9-8-307(d).

On appeal the State a

sserts that the

Claims Com

mission had no subject matter jurisdiction but on a

different basis tha

n asserted by th

e Cla ims Commission.

The State asserts that the preponderance of the evidence at the trial showed that no state employee fired a shot at Claimant while he was in the water and thatthe definition of "sta te employee" in Tennessee Code A nnotated section 8-42-101(3) do es not include a deputy of the Bedford County Sheriff's Office. We agree with the St

ate in its position that the firi ng of the offending

shot cannot be determined as

a matter of la

w to have been willful w ithin the meaning of section 9-8-307(d) rather t han negligent within the m eaning of section 9-8

- 307(a)(1)(M). Therefore, th e basis on which the C

laims Comm

ission foundthat it lacked subject m

atter jurisdicti

on is erroneous.
Two questions rem

ain for disposition, t

o wit: 1. Did Claimant carry his burde n of proof by a preponderance of

the evidence to establis

h that the offending sh

ot was fired by

an ABC agent? 2. If not, can the St

ate be held lia

ble for the

actions of a Bedford County Deputy Sheriff?

As to the first question,

it is conclusively

established that the two shots-5-

originally fi red by Agent Hutche ns could not have cause d the injuries to Claimant as they were

fired long before C

oleman reache

d the river and all

of the testimo ny, including the testim ony of claimant Coleman, establishes that he was actually shot while swimming the river. There is no evidence that Hutchens fired any other shots. Agent Richardson was ca rrying a shotgun a

nd there is no evidence that a shotg

un was ever fired . Agent Ray never

fired his weapon a

nd

neversaw Coleman until after he had reached the opposite bank of the river. Bedford County Deputy Jesse Owens fired a shot into the air while Coleman was wading across

the river up to

his armpits. H

e saw bullets hit the

water close to Colemanbut did not see who wa s firing. Owens fired again but claimed it was "way over" Coleman's head. Taken a s a whole, the evid ence fails to estab

lish thatthe shot fired into the body of claimant Coleman while he was swim

ming the river was fired by any ABC agent.

This brings us to the status of Bedford County deputies as fa r as the responsibility

of the State for

the ir conduct is concer

ned. It is first w

ell to reiterate that for good or il

l, sov ereign imm

unity is still alive

and well in Tennessee, and nei ther the State nor i ts employees, acting within the scope of their authority, can be liable in tort except to the extent that governmental immunity has been specifica

lly waived by

legislative enactm

ent. Hill v. United Stat es , 453 F.2d 839, 15 ALR Fed. 658 (6th Cir. 1972). The very language of Tennessee Code Annota t ed subsections 9-8-307( d),(e),(f), (g) and (h) reemphasizethe reservation of sovereign immunity except to the specific degree the same is removed by this statute. The State, as sovere

ign, is imm

une from suit ex

cept as it consents to be sued. The rule of sovereign im munity in Te

nness ee is both constitutional and sta tutory. It is not within the pow er of the courts to amend it. A statute permit

ting suit against

the State must be strictly construed, and jurisd iction cannot be en larged by implication.
Brown v. State , 783 S.W.2d 567, 571 (Tenn.App.1989)(citations omitted).

The effect of sovere

ign immunity

prevailing in Tenn

ess ee, both by constitutional provisio

n and legislative ena

ctment, has lo

ng been settled:-6- The State of Tenn

essee, a s a sovereign, is im mune from

suit except as it con sents to be sued. Article I, Sec. 17, Co

nstitution of Tennessee; Code Section 8634; Scates v. Board of Commissioners of Union City , 196 Tenn. 274, 265 S.W.2d 563; Phillips v. Marion County , 166 Tenn. 83, 59 S. W.2d 507; Quinton v. Board of Cl aims , 165 Tenn. 2 01, 54 S.W.2d 953; Insurance Co. v. C raig , 106 Tenn. 621 , 62 S.W. 1 55; Moore v. Tate , 87 Tenn. 725, 11 S .W. 935, 10 Am.St.Re p. 712. This being true it ne cessarily follows that except as the Legislature of the

State consents ther

e is no jurisdiction i

n thi s Board of Claims to entertain suits against the State. Legislative

Acts conferring ju r isdiction upon this Boar d of Claims to adjudicate claims against the State of T enness ee are and must of necessity be

strictly constr

ued. This Board' s jurisdiction is limited to the cases specif

ied in the Act, and

this limitation cannot be enlarged by implication.
Hill v. Beeler , 199 Tenn. 325, 328 -29, 286 S.W.2d 868, 869 (Tenn.1956). T

he eloquent, passionate and persua sive condemnati

on of sov ereign imm

unity by Justice Henry remains a dissent. See Cooper v. Ruth erford County , 531 S.W.2d 783, 785-792 (Tenn .1975)(Henry J., dissentin g).

The shooting of Colem

an occurred on Augus

t 20, 1992. As sta

te d, the controlling statute a

t that time rea

d, in pertinent part : The Commission

or each Commissioner sitting individually has exclusive jurisdiction to determine all monetary claims against the state falling withi n one (1) or more of the follo wing categories: . . . (M) Negligent operatio n of machinery

or equipment. Tenn. Code Ann.§ 9-8-307 (a)(1)(M)(1992). An o ther subsection of th e same code sec

tion provided as follow s: Stateofficers and em

ploy ees are absolutely imm une from liabil

ity for acts o r omis sions within the scope of the officers' or employe

es' office or empl oyment, e

xcept for willful,

malicious, or

criminal act

s or omissions or for

acts or omissions done for personal ga in. For the purposes of this chapter, "state officer" or "employe e" has the mea

ning set forth in § 8-42-101(a)(3). Tenn. Code Ann. § 9-8-30 7 (h)(1992).

The extensive definition of "state employee" set forth in Tenne ssee Code Annotated sect ion 8-42 -101(3) does not includ e county sherif

fs and deputy sheriffs. A s pecific p rovision was added to the statute by ch apter 63 of the Public Acts of 1989,

effective Marc

h 20, 1989, which pro

vides:-7- (C) "State

employee" under this chapter a nd under title

9, chapter

8, also i ncludes, as a volunteer, a person designated by the district attorne y general of each judicial district as a member of a j udicial district task force relat

ing to the investigation and prosecution of drug cases. The district attorney general of e ach ju dicial district shal l register only the nam

es of properly qualified

and designated task force members withthe board of claim s. Any me

mber of such a

task force designated by the district a ttorn ey general sha

ll meet the cr

iteria for qualifying

as s uc h a member

as set forth in rule s and regulations promulgatedby the commissione r of finance and ad

ministration. The commissioner, after consultation with the departm ent of safety a

nd the Tennessee bureau of investigation, is authorized to promulgate rules and regulations t

o determine wh

o shall qualify to

be designated as a member of such judicial distri ct ta sk forces. Such r ules and regulations may set cr

iteria for qualifi

cations of membersand may set limits on the numbers of

task force me

mbers from

each district who may be registered. A

ll such r

ules and regulations shall be promulgatedin accordance with the pro visi ons of the Uniform Administrative

Procedur es A ct, compiled i

n title 4, chapter 5 . Task force members are not eligi ble fo r workers' com

pensation benefits from the state

of Tennessee;
Tenn. Code Ann. § 8-42-101(3)(C)( Supp. 1988). Thus, a dep uty sheriff or any otherpersons specifical

ly designated as a

member of

a judicial distric

t drug task force becomes a "sta

te employe

e" within the m

eaning of Tennesse

e Code Annotated section 9- 8-307.

The record in this

case does not

disclose that either

Sheriff Edwar

ds or any of his deputies involved in the August 20, 1992 events at or around Rattlesna ke Lodgein Bedford County, Tennessee were members of the Judicial

District Drug Task Force. Since th

e Bedford County

Sher iff and deputy she

riffs were not "stateemployees," t

he Cla ims Comm

ission lacks subject

matter jur

isdiction underthe strict construction rule that we are mandated to apply to Tennessee Code Annotated section

9-8-307. The enab

ling statute

does not waive sover

eign immunity so as to establish a ba

sis for vicarious lia

bility of the state for the

acts or omissions of person s who are not "state employees."

The judgment of the

Claims Com

mission is affir

med for reasons herein

set forth. Costs are a

ssessed against the a

ppellant.-8- _____________________________ ______ __ _ WILLIAM B. CAIN, JUDGE

CONCUR:

__________________________________ _ BEN H. CANTRELL, P .J., M.S.

__________________________________ _ WILLIAM C. KOCH, JR., JUDGE