1 

### IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE Decem ber 11, 200 2 Session ROSE F. WARN ICK v. CARTER COUNTY, TENNESSEE

Appeal from the Circuit Court for Carter County No. C8203 Jean A. Stanley, Judge FILED JANUARY 27, 2003 No. E2002-00833-COA-R3-CV

This is a negligence action filed by Rose F. Warnick against Carter County

(“the County”) seeking damages for

personal injuries arising out of an automobile accident involving the plain tiff and K eith G. Range ( “Deputy

Range” ), a Cart

er County deputy sheriff, who, according to the complaint, was “acting within the course and scope of his authority as an agent, servant an d e mployee of” the County at the time of

the acc ident. The

County filed a motion to dismi ss pursua nt to Tenn. R. Civ. P. 12.02(6). The tria

l court dis missed the

plaintiff ’s compla int, holdin g that it

was not filed within one year of the

acc iden t as r equi red b y t he Go vern

menta l Tor t Li ability Act ( “the

GTL A”). We affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Case Remanded C HARLES D. S USANO , J R ., J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS and D. M ICHAEL S WINEY , JJ., joined. Thomas E. Cowan, Jr., Elizabethton, Tennessee, for the appellant, Rose F. Warnick. Taush a M. Carmac

k and Patr

ick Ledford, Kingspo

rt, Tenne ssee, fo

r the app ellee, Ca

rter Coun ty , Tennessee. OPINION I. The complaint in the instant case alleges that on April 14, 1997, the plaintiff was driving an automobile

in Elizabeth

ton when h

er vehic le was struc

k in the re ar by

a vehicl e owned b y the County1 In eva luating a T enn. R . Civ. P . 12.0 2 mo tion, we must tak e as true all well-ple d facts in th e com plaint.

Cook v. Spi

nnaker’ s of Ri vergat

e, I nc ., 878 S.W .2d 934, 938 (Tenn. 1994 ).

2 Where the rel evant

date s ar e ref

lected on t he f

ace of the complai nt, as t

hey are i n th is case, a st atut e of limitation s defen se is ap pro priate ly asserted by way o f a Rule 12.0 2(6 ) mo tion to d ismiss. See An thon y v. T idwe ll , 560 S.W.2d 908 , 909 (Tenn. 1977) (“ A complaint is s ubject t o dismis sal un der Rule 12.02(6) for f ailu re to s tate a claim if an affi rmative defense clearl y and unequivocally appears on the face of the complaint.”).

3 Ten n. Cod e Ann. § 2 8-1-105 (a) provid es, in pertinent part, as follows: If the acti on is commenced wit hin the ti me li mit ed by a rul e or s tat ute of limit ation, but t

he judgment or decree is rendered against the plai ntif f upon any groun d not c onclu ding the plai nti ff ’s rig ht of act ion, or whe re the ju dgment or dec ree is ren dere d in favo r of the p laintiff, and is a rrested , or rev ersed on ap pea l, the pl aint iff

, or the plai nti ff’ s repres entatives a nd privi es, as the cas e may be, may, from time to t

ime, commence a new action within one (1) year af ter the rever sal or a rrest. 2 anddriven by

Deputy Range. It is undisputed that, within one y ear of the accident, the

plaintiff filed an earlier c omplain t (“the f irst compl aint”) a

gainst t he County

seeking to recov er for h

er injuri es. The complaint in the case at bar recites that t

he first complaint was “dismissed without prejudice on July 27, 2000.” The instant action was filed July 27, 2001, obviou sly within one yea r of the voluntar y di smissal of

the first complain t, but more

than four ye ars afte

r the ac cident. II. The County ’s motion to

dismiss ass erts that the complaint reflects on its face 1 that the plaintiff “has failed to state a claim upon which relief ca n be granted.” S ee Tenn. R. Civ. P. 12.02(6). The County relies upon Tenn. Code Ann. § 29-20-305(b) (2000) – a part of the GTL A – which provides that

an “action [under the GTLA] must be commenced within twelve (12) months after the cause of action arises.” 2 It is clear under this latter statute that a GTLA suit filed

more than one yea r after the trigger

ing event cannot

be saved by the

saving statute, Tenn. Code Ann. § 28-1- 105 (2000). 3 See Lynn v. City of Jackson , 63 S.W.3d 332, 337 (Tenn. 2001) (“. . . the gener al rule in Tennesse e is th at sa

ving [] statutes may

not be app lied to extend the period within which an action must be filed under the GTLA”)

. The plaintiff

contendsthat her

action is not contro lled by the GTL A. She ar

gues tha t h e r complaint falls under Tenn. Code Ann. § 8-8-302 (2002):

Any one incu

rrin g an y w rong , inju

ry , loss , dam age

or exp ens e re sulting from any

act or f ailure to act on the

part of a ny d eputy appointedby the sheriff

may bring

suit against the county

in which the sheriff serves; provided, that the d eputy is, at the time of such occurrence, acting by

virtue of or under color of the office.4 Te nn. Co de A nn. §§ 8-8-3 01, et seq
. 3

She correctly

points out that the statutory scheme of which this code provision is a part does not provide a time period within which a claim under Tenn. Code Ann. § 8-8-302 m ust be filed. This being the case, she contends that she is entitled to the ben efit of th e sa ving statute. She cites persuasive authority for this lat ter as pect of her argument. See Eason v. Me mphis Light, Gas & WaterDiv ., 866 S.W.2d 952, 955-56 (Tenn. Ct. Ap p. 1993). If sh

e is corr ect that t he saving statute applies to her cause of action, her complaint was timely filed since it was filed wi thi n one yea r of the volunt

ary dismissal without pre

judice of the first complain t. III. The issue before us is whether the plaintiff’s complaint falls within the GTLA, as the County argue s, or under Tenn. Code Ann. § 8-8-302, as the plaintiff contends. Our researc h leads us to the conclusion that the GTLA applies to the plaintiff’s complaint and that the trial cou rt was co rrect in dismissing her action as time-barred. IV. The interplay between the GTLA and the st atutory scheme

4 of which Tenn. Code Ann. § 8-8- 30 2 is an integral part was examined by the Supreme Court in Jenkins v. Loudon County , 7 3 6 S. W.2d 603 (Tenn. 1987). In Jenkins , the plaintiff sued Loudon County , alleging that she had recovered a judgment in a federal court against one of the county ’s deputy sheriff s. Id . at 604. She sought to im po se li ab il it y o n t he county pursua nt to the provisions of Tenn. Code Ann. § 8-8-302 for the deput

y’ s violation

of a fed eral civ il rightss tatute, 42 U.S.C. § 1983. Id . The trial court granted the county’s motion to dismiss. Id . The Court of Appeals affirmed, fin di ng t hat th e GT LA hadrepealed

Tenn. Code Ann. § 8-8-302 “by implication.” The Court of Appeals further “reasoned that because t

he GTLA spe cifica ll y exc lu des civ il rig ht s cl aim s fr om th e op era ti on o f th e GT LA under T.C.A. § 29-20-205, immunity from such suits has not bee n waived.” Id

. On appeal, the Supreme Court reversed the two lower

courts. Id . at 610. The High Court stated that “the determinative issue” in the case was

[w]hetherth e su bject matt er cove red by T.C .A. §§ 8-8-3 01 th rough 8-8-303 i s entirely

embraced in the statutory scheme of the GTLA. Id

. at 607 (emphasis added). The Supreme Court resolved this issue by holding that “the general scope of the GTLA does not by its express terms encompa ss every tortious act or omission by governmentalentities o

r employ ees; thus , it nece ssarily

leaves significant areas of activities either protected by immunity or subject to independent bodies of law .” Id . at 608-09 (emphasis added). It concluded

that civil rights v iolations b y duly- appointe d deputy sheriffs continue to be controlled by Tenn. Code Ann. § 8-8- 301, et seq .:4 Actions for the non-negligent misconduct of deputies do not “aris[e] pursuant to” the GTLA, T.C.A. § 29-20-104(b), a nd may theref

ore be covered by

T.C.A. § 8-8-301, et seq ., in the a ppropria te case s. Id

. at 60 9 (bracketing in origin al). I n the course of its opinion, the Supreme C ourt made

th e following statement which is particularly pertinent to the facts of the instant case: The general provisions of the GTLA do not supe

r[s]ede the

specific provisions of T.C.A. §§ 8-8-301, et seq ., as they re late to misconduct of sheriff’s dep utie s, except to the extent that T.C.A. §§ 8-8-301, et seq ., could exte nd to actio ns for negl ige nce under T.C.A. § 29-20- 205. Id . (emphasis added) (footnote omitted). In Hensley v. Fowler , 920 S.W.2d 649 (Tenn. Ct. App. 1995), the Court of Appeals affirmed the trial court’s dismissal of a negligence action brought against the Sheriff of K nox County arising outof the kill

ing of th e plaintif f’s intes tate by

a Knox County

deputy sheriff

. Id . at 6 49, 65 2. We reasoned that the plaintiff’s suit was controlled by the GTLA and that “the sher iff an d the county enjoy absolute immuni t y under the undisputed fa ctual circumstances of [the] case.” Id . at 652. Particularly per

tinent to the facts of the case at bar, we construed the holding in Jenkins

...to place the safety

net of the [GTLA] around co unties and its employees for actions based on negligence since, as no ted in Jenkins , T.C.A. § 29-20-102(2) includes sheriffs and deputies in the definition of “employee .” Id . (emphasis added). We hold, based on Jenkins and our decision in Hensley , that the plaintiff ’s cause of action, being an action for neglig ent opera tion of an au tomobile by a regular deputy sheriff acting in the courseand scope of his employment , is controlled by the GTL A, which supersedes Tenn. Code Ann. §§ 8-8-301, et seq ., as to such con duct. See Tenn. Code Ann. § 29-20-202(a) (2000). Since the complain t in the instant case was filed more than one y ear from the date of the accident, it is timebarred. See Tenn. Code Ann. § 29-20-305(b). See also Will iams , 773 S.W.2d at 523. V. The judgmen

t of the tr ial cour t is affir med. Costs o n appea

l are taxe d to the appella

nt Rose F. Warnick. This case is remanded to the trial court for the collection of costs ass e ssed below, pursuant to applicable law.5 _______________________________ CHARLES D. SUSANO, JR., JUDGE