IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

September 20, 2023 Session

PENNY LAWSON, ET AL. v. HAWKINS COUNTY, TN, ET AL.

Appeal from the Circuit Court for Hawkins County

No. 20-CV-37 Alex E. Pearson, Judge

No. E2020-01529-COA-R3-CV

This appeal concerns governmental immunity. Steven W. Lawson (“Decedent”), by and 

through his widow, Penny Lawson, and on behalf of Corey Lawson, Decedent’s child 

(“Plaintiffs,” collectively), sued the Hawkins County Emergency Communications District 

Board (“ECD-911”), Hawkins County, Tennessee, and Hawkins County Emergency 

Management Agency (“the EMA”) (“Defendants,” collectively) in the Circuit Court for 

Hawkins County (“the Trial Court”) alleging negligence, gross negligence, and 

recklessness in Defendants’ response to a road washout that led to Decedent’s death. 

Defendants filed motions for judgment on the pleadings, which the Trial Court granted 

partly on grounds that claims of recklessness could not proceed against the Defendant 

entities under the Governmental Tort Liability Act (“the GTLA”). Plaintiffs appealed. We 

reversed. The Tennessee Supreme Court reversed this Court, holding that when the GTLA

removes immunity for negligence, it does so for ordinary negligence only. The matter was 

remanded to this Court for further proceedings. We hold, inter alia, that while Defendants’ 

immunity is removed under the GTLA by Plaintiffs’ ordinary negligence claims, the public 

duty doctrine bars those claims. However, ECD-911’s immunity also is removed by 

Plaintiffs’ claim of gross negligence under Tenn. Code Ann. § 29-20-108, and the third 

special duty exception to the public duty doctrine allows that claim to proceed against 

ECD-911. We reverse the Trial Court’s grant of judgment on the pleadings to ECD-911 

and remand for Plaintiffs’ case to proceed against that entity. Otherwise, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed, in Part, and Reversed, in Part; Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which THOMAS R.

FRIERSON, II, and KRISTI M. DAVIS, JJ., joined.

12/05/2023
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Thomas J. Seeley, III, Johnson City, Tennessee, for the appellants, Penny Lawson and 

Corey Lawson.

Jeffrey M. Ward, Greeneville, Tennessee, for the appellees, Hawkins County, Tennessee 

and Hawkins County Emergency Management Agency.

Russell W. Adkins, Kingsport, Tennessee, for the appellee, Hawkins County Emergency 

Communications District Board.

OPINION

Background

The Tennessee Supreme Court set out the pertinent factual and procedural 

background of this matter as follows: 

A.

In the early morning hours of February 22, 2019, a mudslide washed 

away part of Highway 70 on Clinch Mountain in Hawkins County, 

Tennessee. A driver traveling north on Highway 70 called the Hawkins 

County Emergency Communications District (“ECD-911”) at 12:58 a.m. to 

report that trees were blocking the road. The driver warned the 911 

dispatcher that the highway was “cut off” and that a driver “going up the 

mountain” would “go off the road.”

A Hawkins County deputy was dispatched to the scene about five 

minutes later and arrived before 1:13 a.m. Once at the scene, the deputy 

called ECD-911 and advised contacting the highway department to report a 

“big mudslide” and a leaning power pole. Although the dispatcher expressed 

concern that “one of these days . . . the whole mountain is just gon’ come 

down,” neither the dispatcher nor the deputy discussed closing the road. 

Instead, the dispatcher jokingly warned the deputy not to “let a rock fall on” 

him.

From around 1:21 a.m. to 1:30 a.m., the dispatcher placed calls to the 

Tennessee Department of Transportation, the director of the Hawkins County 

Emergency Management Agency (“EMA”), and Holston Electric Company.

Fifteen minutes later, at about 1:46 a.m., the deputy called ECD-911 

again. This time, he reported that a car had hit a “rock embankment” and 
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flipped down the mountain. The driver of that car was Steven Lawson. He 

was trapped inside the vehicle for eleven hours and died before help arrived.

Shortly after 1:46 a.m., the deputy told the dispatcher that a second 

vehicle had also rolled down the mountain. At that time, the deputy advised 

ECD-911 that he would ask neighboring Hancock County to “block the road 

off.” The EMA director, whom the dispatcher had called earlier that 

morning, did not arrive at the scene until 3:07 a.m.

B.

Mr. Lawson’s surviving spouse, Penny Lawson, on her own behalf 

and on behalf of Mr. Lawson’s surviving child, Corey Lawson, brought this 

wrongful-death action against Hawkins County, ECD-911, and EMA in 

Hawkins County Circuit Court. She alleged that “grossly negligent and 

reckless conduct” by these parties and their employees caused Mr. Lawson’s 

death. All three defendants moved for judgment on the pleadings. ECD-911 

argued that the Tennessee Governmental Tort Liability Act, Tenn. Code Ann. 

§ 29-20-201 (2012 & Supp. 2013) (“the Act” or “GTLA”), provided 

immunity from suit for claims based on recklessness. Hawkins County and 

EMA similarly argued that they were immune under the Act from claims 

based on non-negligent conduct. And all three defendants invoked the 

public-duty doctrine as an additional basis for immunity.

The trial court granted the motions and dismissed the case with 

prejudice. The court concluded that the Act gave defendants immunity from 

claims alleging recklessness and that the public-duty doctrine independently 

barred any claims based on negligence.

The Court of Appeals reversed. See Lawson v. Hawkins Cnty., No. 

E2020-01529-COA-R3-CV, 2021 WL 2949511 (Tenn. Ct. App. July 14, 

2021), perm. app. granted (Tenn. Nov. 17, 2021). First, it held that the Act 

did not provide immunity for claims based on gross negligence or 

recklessness. The court reasoned that “negligence is a subspecies of” gross 

negligence and recklessness, and immunity from claims based on those 

“heightened forms of negligence” is therefore removed by Tennessee Code 

Annotated section 29-20-205, id. at *10, which lifts immunity for “injury 

proximately caused by a negligent act or omission of any employee within 

the scope of his employment,” id. at *5 (quoting Tenn. Code Ann. § 29-20-

205). Next, the court concluded that plaintiff’s complaint alleged sufficient 

facts to state claims for recklessness and gross negligence. Id. at *11. 

Finally, it held that the public-duty doctrine did not bar plaintiff’s suit 
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because her allegations of “recklessness and gross negligence” were 

sufficient at the judgment-on-the-pleadings stage to trigger an exception to 

the doctrine for claims involving reckless misconduct. Id. at *12.

We granted defendants’ application for permission to appeal. That 

application raised three issues. The first issue—and the only one we decide 

in this opinion—is whether the Court of Appeals erred by holding that 

Tennessee Code Annotated section 29-20-205 allows a plaintiff to sue a 

governmental entity for employee conduct that exceeds mere negligence.

Lawson v. Hawkins Cnty., 661 S.W.3d 54, 57-58 (Tenn. 2023) (footnotes omitted).

The Tennessee Supreme Court reversed this Court, holding that when the GTLA 

removes immunity for negligence, it does so for ordinary negligence only. Id. at 57. The 

case was remanded to this Court for further proceedings. Id. In accordance with the 

Tennessee Supreme Court’s Opinion, we decide the remaining issues.

Discussion

We discern from our Supreme Court’s Opinion four issues to be addressed on 

remand: 1) whether Plaintiffs sufficiently preserved and presented arguments (a) that they 

sufficiently alleged ordinary negligence in addition to gross negligence and recklessness 

and (b) whether Tenn. Code Ann. §§ 7-86-320 and 29-20-108 remove immunity for certain 

claims against ECD-911; 2) if those arguments were sufficiently preserved and presented, 

whether Plaintiffs’ complaint sufficiently alleged ordinary negligence; 3) whether Tenn. 

Code Ann. §§ 7-86-320 and 29-20-108 remove immunity for certain claims against ECD911; and 4) whether the public duty doctrine independently bars any of Plaintiffs’ claims 

that may proceed under applicable statutory law.1

This case was resolved by judgment on the pleadings. In its Opinion, the Tennessee 

Supreme Court articulated the applicable standard of review as follows:

We review de novo a motion for judgment on the pleadings. Mortg. 

Elec. Registration Sys., Inc. v. Ditto, 488 S.W.3d 265, 275 (Tenn. 2015); see 

also Tenn. R. Civ. P. 12.03. We accept all the non-moving party’s factual 

allegations as true and draw all reasonable inferences in that party’s favor. 

King, 354 S.W.3d at 709. A judgment on the pleadings for a defendant

should be affirmed when the plaintiff “can prove no set of facts” in support 

of a claim entitling her to relief. Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. 

 

1 Additional briefing and oral argument were conducted for these issues on remand.
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App. 2003); see also McClenahan v. Cooley, 806 S.W.2d 767, 769 (Tenn. 

1991) (stating that, under these circumstances, the issue is whether “the 

Plaintiff’s complaint states a cause of action that a jury should have been 

entitled to decide”).

We also review de novo questions of statutory interpretation like the 

one presented here. See State v. Marshall, 319 S.W.3d 558, 561 (Tenn. 

2010). In interpreting statutory provisions, our role is to determine how a 

reasonable reader would have understood the text at the time it was enacted. 

State v. Deberry, 651 S.W.3d 918, 924 (Tenn. 2022). We undertake that task 

by considering the statutory text “in light of ‘well-established canons of 

statutory construction.’ ” Id. (quoting State v. Sherman, 266 S.W.3d 395, 

401 (Tenn. 2008)).

We give terms their natural and ordinary meaning in their statutory 

context unless the statute defines them. Mills v. Fulmarque, Inc., 360 S.W.3d 

362, 368 (Tenn. 2012). When a statute uses a common-law term without 

defining it, we assume the enacting legislature adopted the term’s commonlaw meaning “unless a different sense is apparent from the context, or from 

the general purpose of the statute.” In re Estate of Starkey, 556 S.W.3d 811, 

817 (Tenn. Ct. App. 2018) (quoting Lively v. Am. Zinc Co. of Tenn., 137 

Tenn. 261, 191 S.W. 975, 978 (1917)). Statutes “in derogation of the 

common law,” moreover, must be “strictly construed and confined to their 

express terms.” Moreno v. City of Clarksville, 479 S.W.3d 795, 809 (Tenn. 

2015) (quoting Doyle v. Frost, 49 S.W.3d 853, 858 (Tenn. 2001)).

Lawson, 661 S.W.3d at 58-59.

The Tennessee Supreme Court also discussed the GTLA and the public duty 

doctrine as follows:

At common law, the State and its political subdivisions were generally 

immune from suit under the doctrine of sovereign immunity. Hughes v. 

Metro. Gov’t of Nashville & Davidson Cnty., 340 S.W.3d 352, 360-61 (Tenn. 

2011). This “doctrine has been a part of Tennessee jurisprudence for well 

over one hundred years.” Id. at 360. It has its roots in feudal England, where 

“the King . . . was answerable to no court.” Moreno, 479 S.W.3d at 809 

(quoting Hawks v. City of Westmoreland, 960 S.W.2d 10, 14 (Tenn. 1997)).

Yet sovereign immunity does not bar suit when the government has 

“specifically consent[ed]” to be sued. Hughes, 340 S.W.3d at 360. Our 
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Constitution empowers the legislature to “waive the protections of sovereign 

immunity,” id., by providing 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.

In 1973, our General Assembly exercised this authority by passing the 

Act. Hughes, 340 S.W.3d at 360. The Act reiterated the general rule of 

sovereign immunity. See Tenn. Code Ann. § 29-20-201. But it also removed 

the immunity of the State’s political subdivisions “in limited and enumerated 

instances for certain injuries.” Hawks, 960 S.W.2d at 14. In particular, the 

Act lifted immunity for “injur[ies] proximately caused by a negligent act or 

omission of any employee within the scope of his employment.” Tenn. Code 

Ann. § 29-20-205 (2012); see also id. § 29-20-310(a) (2012 & Supp. 2013) 

(providing that a court “must first determine that the employee’s . . . acts 

were negligent” before “holding a governmental entity liable for damages”).

That removal of immunity is subject to certain exceptions. If the 

injury at issue “arises out of” one of the acts specified in Tennessee Code 

Annotated section 29-20-205(1)-(9), then immunity still holds. Id. § 29-20-

205; see also Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 84 (Tenn. 2001). 

Those enumerated acts include, among other things, discretionary decisions 

and some intentional torts. Tenn. Code Ann. § 29-20-205(1)-(9).

Because governmental immunity is narrower under the Act than under 

the common law, the Act is “in derogation of the common law” and must be 

“strictly construed and confined to [its] express terms.” Moreno, 479 S.W.3d 

at 809 (quoting Doyle, 49 S.W.3d at 858); see also Hughes, 340 S.W.3d at 

361 (“[S]tatutes which waive immunity of the [governmental entity] from 

suit are to be construed strictly in favor of the sovereign.” (quoting 

McMahon v. United States, 342 U.S. 25, 27, 72 S.Ct. 17, 96 L.Ed. 26 

(1951))). The Act “expressly incorporate[s]” this rule of strict construction. 

Ezell v. Cockrell, 902 S.W.2d 394, 399 (Tenn. 1995). It provides that 

“[w]hen immunity is removed by this chapter any claim for damages must

be brought in strict compliance with the terms of this chapter.” Tenn. Code 

Ann. § 29-20-201(c).

Even when the Act removes immunity, governmental entities still 

may be immune under the public-duty doctrine. We previously held that the 

Act did not abolish that common-law doctrine, which shields governmental 

entities and their employees from “suits for injuries that are caused by the 

public employee’s breach of a duty owed to the public at large.” Ezell, 902 
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S.W.2d at 397, 400-01. But the public-duty doctrine has exceptions too, 

including one known as the special-duty exception. That exception applies 

in three circumstances, including, as relevant here, when “the plaintiff alleges 

a cause of action involving intent, malice, or reckless misconduct.” Id. at 

402.

When we consider whether a governmental entity is immune from 

suit, the threshold question is whether immunity has been removed under the 

Act. We need not consider the public-duty doctrine or its exceptions unless 

we first conclude that the Act waives immunity. See Chase v. City of 

Memphis, 971 S.W.2d 380, 385 (Tenn. 1998).

Lawson, 661 S.W.3d at 59-60 (footnote omitted).

We first address whether Plaintiffs sufficiently preserved and presented arguments 

(a) that they sufficiently alleged ordinary negligence in addition to gross negligence and 

recklessness and (b) whether Tenn. Code Ann. §§ 7-86-320 and 29-20-108 remove 

immunity for certain claims against ECD-911. In their brief, Hawkins County and the 

EMA state that “[a]t no time in the Trial Court, Court of Appeals or Supreme Court have 

the Plaintiffs argued that the Motions for Judgment on the Pleadings should be denied 

based on claims of ordinary negligence.” Defendants point to language contained in a 

response Plaintiffs filed below in opposition to judgment on the pleadings in which 

Plaintiffs stated: 

The Plaintiffs have not alleged that the Defendants failed to take reasonable 

action to prevent the deadly outcome of the emergency situation, i.e. mere 

negligence. The Plaintiffs allege that the Defendants failed to take any 

action at all regarding the emergency situation, i.e. grossly negligent or 

reckless behavior, which directly led to the death of Decedent.

According to ECD-911, Plaintiffs have “disavowed” any claim of ordinary negligence. On 

the other hand, ECD-911 “concedes that the applicability of Tenn. Code Ann. §§ 7-86-320 

and 29-20-108 has been raised in the pleadings and properly preserved as an issue for 

consideration upon appeal.” ECD-911’s concession is appropriate in light of the record. 

That leaves the question of whether Plaintiffs preserved an argument based on ordinary 

negligence. 

In our previous opinion, we noted that “the Trial Court held that Plaintiffs’ claims 

of simple negligence removed Defendants’ immunity (at least before application of the 

public duty doctrine).” Lawson v. Hawkins Cnty., No. E2020-01529-COA-R3-CV, 2021 

WL 2949511, at *6 (Tenn. Ct. App. July 14, 2021). Indeed, throughout this case, Plaintiffs 
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have attempted to thread the needle of the interplay between the GTLA and the public duty 

doctrine. Both the Trial Court and this Court have recognized that Plaintiffs’ claims 

include ordinary negligence. We disagree that Plaintiffs have “disavowed” ordinary 

negligence. Instead, they have made alternative arguments, which they are allowed to do. 

We conclude that Plaintiffs have sufficiently preserved and presented arguments both as to 

their sufficiently alleging ordinary negligence and as to whether Tenn. Code Ann. §§ 7-86-

320 and 29-20-108 remove immunity for certain claims against ECD-911.

We next address whether Plaintiffs’ complaint sufficiently alleged ordinary 

negligence. The Tennessee Supreme Court has defined negligence as follows:

This Court has long defined negligence as the “want of ordinary care.” 

Inter-City Trucking Co. v. Daniels, 181 Tenn. 126, 178 S.W.2d 756, 757 

(1944) (quoting Craig v. Stagner, 159 Tenn. 511, 19 S.W.2d 234, 236 (1929), 

abrogated on other grounds by McIntyre v. Balentine, 833 S.W.2d 52, 54 

(Tenn. 1992)). To prove negligence, a plaintiff must establish “(1) a duty of 

care owed by the defendant to the plaintiff; (2) a breach of that duty; and (3) 

a causal relation between the injury to the plaintiff and the defendant’s breach 

of his duty of care.” Shouse v. Otis, 224 Tenn. 1, 448 S.W.2d 673, 676 

(1969); see also McClenahan, 806 S.W.2d at 774 (specifying that a plaintiff 

must prove “an injury or loss,” “causation in fact,” and “proximate, or legal, 

cause”). Negligence does not require proof that the defendant intended to 

harm the plaintiff or of any other mental state. To the contrary, this Court 

has explained that “[w]illfulness and negligence are the opposite of each 

other; the former signifying the presence of intention, and the latter its 

absence.” Memphis St. Ry. Co. v. Roe, 118 Tenn. 601, 102 S.W. 343, 346 

(1907) (quoting Cleveland, Cincinnati, Chi. & St. Louis Ry. Co. v. Miller, 

149 Ind. 490, 49 N.E. 445, 449 (1898)), abrogated on other grounds by 

McIntyre, 833 S.W.2d at 54.

Lawson, 661 S.W.3d at 61.

To determine whether Plaintiffs sufficiently alleged ordinary negligence, we look 

to their complaint. In their complaint, Plaintiffs alleged, in part, as follows:

25. Mr. Lawson was killed due to the reckless and grossly 

negligent conduct of all Defendants and their employees or agents as named 

herein, including but not limited to:

a. Deputy Godsey’s blatant failure to follow any protocol in 

assessing the situation, discussing options to close the Highway to 
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prevent accidents, failure to communicate the danger to other 

motorists, conscious disregard to the unjustifiable and substantial risk 

of a vehicle falling off the mountain due to the collapse, and failure to 

take any action to stop traffic;

b. ECD-911 employees’ failure or blatant refusal to obtain more 

information, make additional dispatch calls to any fire department or 

other emergency personnel to report the situation on Highway 70, or 

follow proper protocol regarding unsafe road conditions.

c. EMA employees’ or agents’ failure or blatant refusal to take 

any action at all other than to communicate a downed utility pole to 

the Utility Company, obtain any additional information, respond to 

the scene, assess the situation, or take any helpful action whatsoever.

***

27. All Defendants were on notice and consciously aware that 

Highway 70 had an active mudslide, severe road hazard, trees in the road and 

a power pole was destabilized due to the mudslide for almost an hour before 

any attempt, whatsoever, was made to close Highway 70.

***

30. This clear deviation from the standard of care that any ordinary 

person would exercise under the circumstances—said action being 

performed by an ordinary citizen forty-five minutes earlier despite no law

enforcement or emergency dispatch training of any kind—constitutes 

reckless conduct and gross negligence on the part of the Defendants’ 

employees.

***

32. The aforementioned actions constitute gross negligence and 

reckless behavior on the part of the Defendants and their employees because 

of their extreme dereliction in the operation of the Defendants’ emergency 

procedures and protocols, and said neglect substantially and unjustifiably 

increased the risk that harm would occur to any motorist traveling 

southbound on Highway 70. Defendants’ actions, through their employees 

and agents, was done with utter unconcern for the safety of these motorists 

and with reckless disregard for the rights, safety, and livelihood of others 
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such as to amount to conscious indifference to the clear risk that would be 

confirmed later when Mr. Lawson and Mr. Mabe’s vehicles fell off the 

mountain.

33. The aforementioned dereliction of duty on the part of the 

Defendants’ employees, officers and agents was the result of, in part (but not 

limited to):

a. Blatant and rampant nepotism amongst the Defendants;

b. Failure to adequately train employees regarding proper 

protocol and procedures;

c. Failure to maintain adequate or proper protocols and 

procedures to deal with emergency situations such as the situation that 

occurred on February 21, 2019; and/or

d. Failure to maintain proper licensing under state law and 

regulations.

34. Immunity for all Defendants has been removed for this action 

pursuant to the provisions of T.C.A. § 29-20-203, -205, -108, etc., and said 

negligence constitutes negligence per se under these and other relevant 

statutes.

In their complaint, Plaintiffs heavily emphasized gross negligence and recklessness. 

However, a fair reading of the complaint reveals claims of ordinary negligence as well. 

Plaintiffs alleged a litany of inactions, omissions, and dereliction on the part of Defendants 

in their response to the road washout that led to Decedent’s death. These allegations, which 

remain mere allegations at this stage, claim a duty, a breach of that duty, and a causal 

relationship between Plaintiffs’ injuries and the breach of duty required for a claim of 

ordinary negligence. Plaintiffs did not have to and did not restrict themselves to a single 

approach in their complaint. We know of nothing, including the Tennessee Supreme 

Court’s opinion in Lawson, that prohibits Plaintiffs from having alleged ordinary 

negligence, gross negligence, and recklessness based upon the same set of alleged facts. 

We hold that Plaintiffs sufficiently alleged ordinary negligence in their complaint. 

We next address whether Tenn. Code Ann. §§ 7-86-320 and 29-20-108 remove 

immunity for certain claims against ECD-911. Tenn. Code Ann. § 7-86-320 states as 

follows:
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(a) If a provider of an IP-enabled service offers 911 or E911 services and 

such provider complies with federal communication commission Order #05-

116, adopted May 19, 2005, that provider, its officers, directors, employees, 

vendors, and agents, shall have immunity or other protection from liability 

of a scope and extent that is not less than the scope and extent of immunity 

or other protection from liability that any incumbent local exchange carrier 

in the provider’s service area, and its officers, directors, employees, vendors, 

or agents, have under applicable law, whether through statute, judicial 

decision, tariffs filed by the local exchange company, or otherwise, including 

in connection with an act or omission involving the release of subscriber 

information related to the emergency calls or emergency services to a public 

safety answering point (PSAP), emergency medical service provider, 

emergency dispatch provider, public safety, fire service, or law enforcement 

official, or hospital emergency or trauma care facility.

(b) A person using an IP-enabled service that offers 911 or E911 services 

pursuant to this section shall have immunity or other protection from liability 

of a scope and extent that is not less than the scope and extent of immunity 

or other protection from liability under applicable law in similar 

circumstances of a person using 911 or E-911 service that is not provided 

through an IP-enabled voice service.

(c) In matters related to IP-enabled 911 and E911 communications, a PSAP, 

and its employees, vendors, agents, and authorizing government entity, if 

any, shall have immunity or other protection from liability of a scope and 

extent that is not less than the scope and extent of immunity or other 

protection from liability under applicable law accorded to the PSAP, 

employees, vendors, agents, and authorizing government entity, respective, 

in matters related to 911 or E-911 communications that are not provided via 

an IP-enabled service.

(d)(1) Emergency communications districts shall be immune from suit or 

liability for civil claims arising from the actions or omission of emergency 

communications district personnel in processing emergency calls, except that 

claims for recklessness or intentional misconduct in processing emergency 

calls shall be permitted, but damages for such claims shall not exceed actual 

damages or the maximum award that may be awarded per claimant by the 

Tennessee claims commission.

(2) A provider or user of 911 services or next generation 911 services, a 

public safety answering point, and the officers, directors, employees, 

vendors, agents, and authorizing government entity, if any, of such provider, 

user, or public safety answering point, shall have immunity and protection 

from liability under federal and state law to the extent provided in 

subdivision (d)(1) with respect to:
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(A) The release of subscriber information related to emergency calls 

or emergency services;

(B) The use or provision of 911 services, E911 services, or next 

generation 911 services; and

(C) Other matters related to 911 services, E911 services, or next 

generation 911 services.

(3) A dealer or provider of telecommunications service and other services, a 

user of such services, and a public safety answering point, and the officers, 

directors, employees, agents, vendors, and authorizing government entity, if 

any, involved in providing 911 service, shall not be liable for:

(A) Any civil claim, damage, or loss caused by an act or omission in 

the design, development, installation, maintenance, or provision of 

911 service;

(B) The release of subscriber information related to emergency calls 

or emergency services; and

(C) Other matters related to the provision of 911 service.

Tenn. Code Ann. § 7-86-320 (West eff. January 1, 2015).

Tenn. Code Ann. § 29-20-108, the other statute relied on by Plaintiffs against ECD911, provided:

(a) Emergency communications district boards, established in § 7-86-105, 

and the members of such board shall be immune from any claim, complaint 

or suit of any nature which relates to or arises from the conduct of the affairs 

of the board except in cases of gross negligence by such board or its 

members. The finding of the general assembly is that the service of such 

boards and the members thereof is so critical to the safety and welfare of the 

citizens of this state that such absolute and complete immunity is required 

for the free exercise of the duties of such boards by the members.

(b) Such immunity shall also extend to employees of an emergency 

communications district, and county and municipal governments for the acts 

or omissions of employees that manage, supervise, or perform 911 

emergency communications service as communicators or dispatchers; 

provided, that all such employees shall attain and maintain training 

requirements as may be required by law.

Tenn. Code Ann. § 29-20-108 (West January 1, 2015 to December 31, 2020).2

 

2 The statute was amended effective January 1, 2021, 2020 Tennessee Laws Pub. Ch. 575 (S.B. 1958), to
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With respect to Tenn. Code Ann. § 7-86-320, the immunity provided by the statute 

is removed for reckless and intentional acts but “processing” emergency calls is left 

undefined. This is significant because Plaintiffs’ allegations do not concern the 

“processing” of an emergency call, as such. For instance, Plaintiffs’ claim against ECD911 is not based on an alleged technical blunder or mishap. Instead, their claim is based 

on the conduct of ECD-911 in response to the emergency call at issue. Under these 

circumstances, Tenn. Code Ann. § 7-86-320 and its immunity for “processing” calls is 

inapplicable to the facts at hand.

Tenn. Code Ann. § 29-20-108, meanwhile, is broader in application. Plaintiffs have 

alleged gross negligence on the part of Defendants, including ECD-911. Under an 

unforced and natural reading of the statute so as “to determine how a reasonable reader 

would have understood the text at the time it was enacted[,]” Lawson, 661 S.W.3d at 59,

Tenn. Code Ann. § 29-20-108 removes immunity for emergency communication district 

boards like ECD-911 in cases of gross negligence.3 ECD-911 acknowledges that Tenn. 

Code Ann. § 29-20-108 sometimes removes governmental immunity for gross negligence

but asserts that “ordinary negligence and gross negligence do not establish a special duty 

sufficient to overcome the public duty doctrine.” However, that skips a step in the inquiry. 

As explained by our Supreme Court, the first question is whether governmental immunity

is removed. Only if immunity is removed do we consider whether the public duty doctrine 

applies. 

The Tennessee Supreme Court explained in Lawson that when the GTLA removes 

immunity for negligence, it does so for ordinary negligence only. However, Tenn. Code 

Ann. § 29-20-108 specifically removes immunity for emergency communication district 

boards in cases of gross negligence. The statute is explicit on this point. Through section 

-108 of the GTLA, the State has consented to waive its sovereign immunity in cases such 

as Plaintiffs’ claim of gross negligence against ECD-911. We conclude that, under Tenn. 

Code Ann. § 29-20-108, Plaintiffs’ claim of gross negligence removes immunity for ECD911 at this judgment on the pleadings stage. 

The final issue we address is whether the public duty doctrine independently bars 

any of Plaintiffs’ claims that may proceed under applicable statutory law. On this issue, 

 

state among other things that “[t]he emergency communication district, state, county, and municipality are 

not liable for any civil damages or subject to a civil suit of any nature for employees who answer 911 

emergency calls and employees who are recently hired, except in cases of gross negligence or willful 

misconduct.” Tenn. Code Ann. § 29-20-108(e).

3 Tenn. Code Ann. § 29-20-108 connects the gross negligence standard to whether 911 dispatchers had 

attained and maintained certain training requirements. No such evidence of training or lack thereof has 

been produced at this judgment on the pleadings stage.
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Plaintiffs take aim at the public duty doctrine itself. They criticize the barrier it poses to 

litigants who are forced to navigate the doctrine’s interplay with the GTLA. We are not 

unsympathetic. However, we note the statement by now Chief Justice Kirby in her separate 

concurring opinion in Lawson that “[t]he question of whether we should continue to apply 

the public duty doctrine and the special duty exception was not raised as an issue in this 

appeal, so addressing it here would not be appropriate.” Lawson, 661 S.W.3d at 70. Chief 

Justice Kirby expressed hope that, in a future case, the Tennessee Supreme Court could 

“look squarely at whether we should continue to adhere to Ezell, limit application of the 

public duty doctrine and the special duty exception, or discontinue application of those 

common law principles in deference to the statutes governing immunity.” Id. In the 

meantime, the public duty doctrine remains a part of Tennessee law.

The effect of Plaintiffs’ claims of ordinary negligence is to waive Defendants’ 

immunity under the GTLA as to ordinary negligence. Defendants’ duties regarding how 

to respond to the highway washout were duties owed to the public at large, not just 

Decedent individually. Therefore, absent a special duty exception, the public duty doctrine 

bars Plaintiffs’ ordinary negligence claims notwithstanding the waiver of immunity under 

the GTLA. Plaintiffs argue nevertheless that the third special duty exception applies since 

they allege gross negligence and recklessness in addition to ordinary negligence. Given 

the Tennessee Supreme Court’s Lawson opinion, Plaintiffs may not smuggle a claim of 

ordinary negligence past the public duty doctrine by relying on gross negligence or 

recklessness when those gross negligence claims would not have lifted governmental 

immunity in the first place. In Lawson, the Tennessee Supreme Court was definitive in its 

ruling that when the GTLA lifts immunity for negligence, it does so for ordinary negligence 

only. As no special duty exception applies to Plaintiffs’ claims of ordinary negligence 

against Defendants, those claims are barred by the public duty doctrine. In short, Plaintiffs’ 

gross negligence claims against Hawkins County and the EMA fail because immunity has 

not been removed while, at the same time, Plaintiffs’ negligence claims against Defendants

fail because of the public duty doctrine. Thus, Plaintiffs can prove no set of facts that 

would entitle them to relief against Hawkins County or the EMA. We therefore affirm the 

Trial Court’s grant of judgment on the pleadings to Hawkins County and the EMA. 

ECD-911 is situated differently, however. As discussed above, Tenn. Code Ann. § 

29-20-108 specifically removes immunity for emergency communication district boards in 

cases of gross negligence. Plaintiffs have alleged gross negligence against ECD-911, 

which serves to waive immunity under section -108. The next step in the inquiry is whether 

the public duty doctrine bars Plaintiffs’ claim against ECD-911 notwithstanding the waiver 

of immunity. Plaintiffs assert the third special duty exception, which applies for acts of 

intent, malice, or reckless misconduct. In its Opinion, the Tennessee Supreme Court 

explained the difference between negligence on one hand and gross negligence and 

recklessness on the other:
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Recklessness, by contrast [to negligence], does require proof of the 

defendant’s subjective state of mind. We have explained that “recklessness 

contains an awareness component similar to intentional conduct which is not 

demanded of negligence.” Doe 1 ex rel. Doe 1 v. Roman Cath. Diocese of 

Nashville, 154 S.W.3d 22, 38 (Tenn. 2005). Specifically, the defendant must 

“be aware of, but consciously . . . disregard, a substantial and unjustifiable 

risk.” Id. at 39; see also Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 

(Tenn. 1992) (same). This requirement “imposes a significantly higher 

burden than is required for mere negligence actions.” Doe 1, 154 S.W.3d at 

39. The “recklessness analysis” is therefore “something unique which differs 

from” an “analys[i]s based strictly on . . . negligence.” Id. at 38. Tennessee 

courts had recognized this distinction between negligence and recklessness 

before the Act was adopted. See, e.g., Wells v. S. Ry. Co., 1 Tenn. App. 691, 

700 (Tenn. Ct. App. 1926) (distinguishing negligence from “recklessness or 

wantonness” and explaining that the latter indicate a “willingness to inflict 

the impending injury, or willfulness in pursuing a course of conduct which 

will naturally or probably result in disaster”).

Gross negligence likewise requires proof of the defendant’s subjective 

mental state. See, e.g., Olsen v. Robinson, 496 S.W.2d 462, 463 (Tenn. 1973) 

(requiring proof of “willful or wanton misconduct” to prove gross negligence 

and distinguishing such conduct from “ordinary negligence”), abrogated on 

other grounds by Hudson v. Gaitan, 675 S.W.2d 699, 703 (Tenn. 1984); see 

also Craig, 19 S.W.2d at 236 (defining “gross negligence” as “[s]uch entire 

want of care as would raise a presumption of a conscious indifference to 

consequences”). As we put it in Craig, gross negligence requires “more than 

. . . want of ordinary care—a common definition of negligence.” 19 S.W.2d 

at 236. The required “mental attitude” is instead “one of indifference to 

injurious consequences, conscious recklessness of the rights of others.” Id.

This distinction between gross negligence and negligence led 

Tennessee courts to attach different legal consequences to grossly negligent 

behavior. Before adopting a comparative-fault system, we disallowed 

contributory negligence as a defense to grossly negligent conduct, “unless 

the contributory negligence [was] also gross or wanton.” Stinson v. Daniel, 

220 Tenn. 70, 414 S.W.2d 7, 10 (1967); Ellithorpe v. Ford Motor Co., 503 

S.W.2d 516, 521-22 (Tenn. 1973) (similar), abrogated by McIntyre, 833 

S.W.2d at 54. Punitive or exemplary damages are permissible in a 

negligence action only if the negligence is “so gross and wanton as to ‘raise 

a presumption of conscious indifference to consequences.’ ” Se. Aviation, 
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Inc. v. Hurd, 209 Tenn. 639, 355 S.W.2d 436, 447 (1962) (quoting Inter-City 

Trucking Co., 178 S.W.2d at 757). And under our former premises-liability 

rules, we dismissed a complaint that “allege[d] no more than ordinary 

negligence on the [defendant’s] part” because the defendant host owed the 

plaintiff guest “no duty except to refrain from willfully injuring him or from 

committing negligence so gross as to amount to willfulness.” Olsen, 496 

S.W.2d at 463. These cases underscore that, under Tennessee’s common 

law, negligence and gross negligence are distinct concepts.

***

In sum, Tennessee courts have consistently defined gross negligence 

and recklessness in a manner distinct from ordinary negligence. The term 

“negligence” in section -205 is therefore best understood to mean only 

ordinary negligence, not gross negligence or recklessness. If there were any 

doubt on this point, the strict-construction rule that applies here would 

require us to resolve that doubt in favor of governmental immunity. 

“[C]onfined to [its] express terms,” Moreno, 479 S.W.3d at 809, section -205 

waives immunity only for employee acts that constitute ordinary negligence.

Lawson, 661 S.W.3d at 61-63 (footnote omitted).

In its analysis, the Tennessee Supreme Court contrasted ordinary negligence from 

gross negligence and recklessness. The Tennessee Supreme Court explained that, as 

opposed to ordinary negligence, gross negligence and recklessness require proof of a 

defendant’s mental state. Here, Plaintiffs have alleged extreme dereliction, utter 

unconcern, and conscious indifference on the part of ECD-911 in its response to the 

emergency call at issue. In our judgment, these allegations by Plaintiffs are inclusive of 

the intent, malice, or reckless misconduct necessary to establish the third special duty 

exception to the public duty doctrine. 

We reiterate that Plaintiffs’ allegations remain just that at this judgment on the 

pleadings stage. We take no position on the underlying merits. Nevertheless, Plaintiffs

have successfully alleged that ECD-911’s governmental immunity is removed under Tenn. 

Code Ann. § 29-20-108 for gross negligence and that the public duty doctrine does not bar 

their claim for gross negligence as the third special duty exception applies. Thus, Plaintiffs 

have alleged facts against ECD-911 which could possibly entitle them to relief. We,

therefore, hold that the Trial Court erred in granting ECD-911 judgment on the pleadings. 

We reverse the Trial Court’s judgment as to ECD-911 and remand for Plaintiffs’ case to 

proceed against ECD-911.
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Conclusion

We reverse the Trial Court’s grant of judgment on the pleadings to Hawkins County 

Emergency Communications District Board. Otherwise, we affirm the judgment of the 

Trial Court. This cause is remanded to the Trial Court for collection of the costs below 

and further proceedings consistent with this Opinion. The costs on appeal are assessed 

against the Appellee, Hawkins County Emergency Communications District Board.

____________________________________

D. MICHAEL SWINEY, CHIEF JUDGE