IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

March 5, 2019 Session

CHERYL MEROLLA v. WILSON COUNTY, TENNESSEE

Appeal from the Circuit Court for Wilson County

No. 2013-CV-315 Clara W. Byrd, Judge

___________________________________

No. M2018-00919-COA-R3-CV

___________________________________

Plaintiff filed a complaint against the defendant county alleging mistreatment in the 

county jail resulting in physical and emotional injuries. Following a bench trial, the trial 

court dismissed all of the plaintiff’s claims. We affirm the trial court’s decision in all 

respects. 

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

J. STEVEN STAFFORD, P.J., M.S., delivered the opinion of the court, in which ARNOLD B.

GOLDIN, and KENNY ARMSTRONG, JJ., joined.

Wm. Kennerly Burger, Murfreesboro, Tennessee, for the appellant, Cheryl Merolla.

Jeffrey R. Thompson, and N. Craig Strand, Knoxville, Tennessee, for the appellee, 

Wilson County, Tennessee.

OPINION

BACKGROUND

On June 12, 2012, Plaintiff/Appellant Cheryl Merolla was arrested in connection 

with a domestic incident concerning her adult daughter and estranged son-in-law. Ms. 

Merolla admittedly suffers from mental health issues and diabetes. Ms. Merolla was 

initially evaluated in a medical center, released, and then transported to Wilson County 

Jail. Following her intake into jail after midnight on June 13, 2012, Ms. Merolla became 

belligerent and allegedly would not stop beating on her cell door, purportedly in an effort 

to obtain necessary medications and food to treat her diabetes. In any event, at 

approximately 3:10 am, the Wilson County jailers made the decision to restrain Ms. 

Merolla by shackling her, i.e., cuffing her arms behind her back and her feet together. 

The restraints were removed at approximately 6:25 am. That same morning, Ms. Merolla 

05/01/2019
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was released without charge and taken to a hospital for psychiatric treatment; she 

remained hospitalized for four days. 

On June 5, 2013, Ms. Merolla filed a complaint against Defendant/Appellee 

Wilson County alleging violations of the Tennessee Governmental Tort Liability Act 

(“GTLA”), or alternatively, Tennessee Code Annotated section 8-8-301, et. seq. Therein, 

Ms. Merolla claimed that she suffered physical and emotional injuries after being 

“hogtied” for upwards of six hours by employees of the Wilson County jail. 

The case was eventually tried by bench trial in March 2018. Much of the 

testimony at trial centered on the shackling of Ms. Merolla and the jail’s alleged refusal 

to provide her with diabetes medication. There is no dispute that Ms. Merolla informed 

the jail of her diabetes diagnosis during intake; Ms. Merolla did not, however, indicate on 

intake forms that she suffered from mental health issues. 

According to Ms. Merolla, she was eventually placed in restraints at the jail due to 

her unruly, loud behavior. Although Ms. Merolla did admit to “banging on the [cell] door 

with [her] hands,” she denied ever becoming violent or that her behavior ever placed her 

at risk of harm. As such, she contended that the use of restraints was not authorized by 

the Wilson County Jail Policies and Procedures (“the Wilson County Jail Policies” or 

“the policies”), which only allow the use of restraints in certain situations, including “to 

enforce rules within the Wilson County Jail” and “to prevent serious damage to county 

property and to prevent an inmate from inflicting self harm” but not “as a means of 

punishment or retaliation.” The policies flatly prohibit “hog-tying an inmate” but does 

not define this practice. The policies also expressly provide that shackled inmates should 

be checked every fifteen minutes, and that the use of restraints should be documented by

hand-held video camera whenever possible. A video of the use of restraints was 

submitted into evidence, as well as some video of Ms. Merolla’s conduct following the 

placement of the restraints. No video evidence was submitted showing Ms. Merolla’s 

conduct prior to the use of restraints. 

According to Ms. Merolla, she suffered excruciating pain as a result of the 

shackling of her arm that had previously been injured in the scuffle with her son-in-law, 

as well as emotional injuries that required several days of mental health treatment.1 Ms. 

Merolla admitted, however, that her diabetes condition was not affected in the long-term 

by the jail’s failure to provide her with food or medication. Ms. Merolla submitted 

medical proof in the form of depositions and records to support her claim of physical 

injuries as a result of the jail staff’s actions. 

In contrast, Wilson County jailers2testified that Ms. Merolla was placed in 

restraints solely in an effort to prevent her from harming herself by kicking and punching 

 

1 Among the evidence presented was a professionally shot video of Ms. Merolla while 

hospitalized detailing the injuries that she received as a result of the events at issue in this case. 

2 The trial court heard testimony from several corrections officers who were present during in the 
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her cell door. According to these officers, pursuant to jail policies, the restraints were 

used only following several requests that Ms. Merolla desist from kicking and punching 

the door. The employees admitted, however, that Ms. Merolla never showed any signs of 

foot or knuckle injuries prior to the use of restraints, but contended that the jail’s policy 

was not wait until a physical injury occurred prior to using restraints. The jailers also 

admitted that Ms. Merolla was still able to kick the door following the shackling, albeit in 

a more limited manner.3Still, the employees denied that restraints were used in a punitive 

manner due to Ms. Merolla’s admittedly obnoxious behavior, as the jail employees 

testified that they were accustomed to disruptive inmates. 

Despite Ms. Merolla’s claim that she was hogtied, the jailers testified that Ms. 

Merolla was merely handcuffed behind her back and her legs were shackled together. 

None of the jailers testified that this action met the definition of hogtying, but no formal 

definition of the term was offered. The jailers explained that Ms. Merolla could not be 

handcuffed in the front because the handcuffs would provide Ms. Merolla a weapon to 

continue beating the doors. Finally, the jail employees testified that Ms. Merolla was 

constantly monitored by jail staff because a live video feed was transmitted to the staff 

desk that allowed jailers to monitor her at all times; this feed, however, was not capable 

of recording and storing content at the time of the events at issue in this case.4

At approximately 4:30 am, the jailers returned to Ms. Merolla’s cell to place her 

upright. Ms. Merolla admitted that she had lain down to on the floor to find comfort due 

to pain and nausea.5 According to the jailers, however, Ms. Merolla was continuing to 

kick the cell door from a prone position. Although Ms. Merolla testified that she had 

vomited and urinated on herself in the intervening time, all witnesses who saw Ms. 

Merolla the following morning testified from their records and reports that there was no 

indication that Ms. Merolla had soiled herself in the approximately three hours that she 

was shackled.6

 

Wilson County Jail on the night of Ms. Merolla’s arrest, including Chris Brandenburg, Anthony Barrett, 

Wendy Meyers (by deposition), and Penny Shoemake (by deposition). These witnesses testified largely 

consistently and their testimony has therefore been summarized together so as not to tax the length of this 

opinion. 

3 Ms. Merolla likewise admitted that she had some mobility with the shackles on, including the 

ability to “shuffle” around. 

4 Because the jail facility did not record this area, the placement of the restraints on Ms. Merolla 

was recorded via hand held video recording device. The jailers testified that they did not record Ms. 

Merolla’s behavior that led to the use of restraints because they did not have the manpower or technology 

to record every occurrence in the jail during that period. 

5 The video shows that Ms. Merolla was sitting upright on a bench in the cell immediately 

following the placement of the restraints. The video goes on to depict Ms. Merolla standing at the cell 

door and walking around her cell. 

6 As depicted in the video, Ms. Merolla also repeatedly complained that the shackles had caused 

her ankles to bleed. Ms. Merolla admitted in her later testimony that the shackles did not actually cause 

bleeding on her ankles. 
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Captain Douglas Whitefield was tendered as an expert on the jail’s policies over 

the objection of Ms. Merolla. According to Captain Whitefield, he had over ten years of 

experience in corrections and had been an integral part of the writing of the jail’s policies 

and procedure. According to Captain Whitefield, all applicable policies and procedures 

were complied with during Ms. Merolla’s incarceration. 

The jailers further testified that general jail policy prevents them from providing 

inmates with any medications that they bring in with them, due to various issues related 

to incorrect dosages and illegal medicines entering the jail. Moreover, issues of medical 

care are left solely to the jail’s medical staff, which was employed by Southern Health 

Partners, rather than Wilson County. 

The Southern Health Partners nurse on duty that night confirmed that, as reflected 

on the video, she was present when Ms. Merolla was shackled. The nurse testified that 

she asked Ms. Merolla about her diabetic medication, but believed that no medication 

was necessary at that time due to the late hour (Mr. Merolla admitted to the nurse that she 

typically took the medicine at dinner time) and the fact that Ms. Merolla stated that she 

only took her blood sugar once a month. Moreover, the nurse explained that the jail only 

administers prescription medications that are obtained independently from physicians.7

The nurse also testified that Ms. Merolla’s behavior was not consistent with a diabetic 

episode. 

The trial court issued an oral ruling at the conclusion of trial in favor of Wilson 

County. Therein, the trial court made express credibility findings against Ms. Merolla, 

whom the trial court described as “just not credible.”8 On April 17, 2018, the trial court 

entered an order dismissing Ms. Merolla’s claims, finding no breach of a duty owed to 

Ms. Merolla, that that there was no credible proof that Ms. Merolla sustained an injury 

during her incarceration proximately caused by Wilson County employees, and that to the 

extent the complaint alleged violations of civil rights, such violation was not proven and 

Wilson County was immune from suit. The trial court’s oral ruling was incorporated by 

reference into the trial court’s written order. Ms. Merolla timely appealed to this Court.

ISSUES PRESENTED

Ms. Merolla raises three issues, which are taken and slightly restated from her 

brief: 

1. Pursuant to Tennessee Code Annotated section 8-8-302, is Wilson County responsible 

for the injuries sustained by Ms. Merolla at the hands of the Wilson County deputies? 

 

7 Moreover, Ms. Merolla had been examined and discharged by a hospital earlier in the evening.

8

In support, the trial court noted that numerous exaggerations made by Ms. Merolla that she later 

admitted at trial were not accurate. As such, the trial court noted that “Ms. Merolla was her own worst 

enemy.”
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2. Does the preponderance of the evidence support the trial court’s conclusion that Ms. 

Merolla failed to present a viable claim under the provisions of the GTLA? 

Specifically, did the County, through its employees/deputies, unnecessarily injure Ms. 

Merolla under non-discretionary circumstances, and under circumstances where the 

Public Duty Doctrine is not applicable as an affirmative defense?

3. Was Captain Whitefield a qualified expert?

STANDARD OF REVIEW

This case was resolved following a bench trial. Under rule 13 of the Tennessee 

Rules of Appellate Procedure, the trial court’s findings of fact from a bench trial are 

reviewed “de novo upon the record of the trial court, accompanied by a presumption of 

the correctness of the finding, unless the preponderance of the evidence is otherwise.” 

Tenn. R. App. P. 13(d). We give “great weight to a trial court’s factual findings that rest 

on determinations of credibility.” Nashville Ford Tractor, Inc. v. Great Am. Ins. Co., 

194 S.W.3d 415, 424 (Tenn. Ct. App. 2005) (citing In re Estate of Walton, 950 S.W.2d 

956, 959 (Tenn. 1997)). A trial court’s conclusions of law, however, are not entitled to a 

presumption of correctness. Johnson v. Johnson, 37 S.W.3d 892, 894 (Tenn. 2001). 

DISCUSSION

I. GTLA Claim

We begin with the question of whether the County has immunity for the claims 

asserted against it under the Tennessee Governmental Tort Liability Act (“GTLA”). In 

this case, as evidenced by Ms. Merolla’s complaint, pre-trial brief, arguments at trial, and 

appellate brief, Ms. Merolla’s central contention is that Wilson County’s employees 

breached a duty to her, resulting in physical and emotional injuries that are recoverable 

under the GTLA. In particular, Ms. Merolla contends that Wilson County’s immunity 

under the GTLA is removed under the broad waiver of immunity applicable to actions 

involving the negligence of governmental employees. A brief review of the GTLA and 

our immunity jurisprudence is therefore helpful. 

“At common law the sovereign entity, be it the state, a city, or a county, had no

“discretionary act” immunity and indeed needed none. The sovereign entity was already

absolutely immune under the common law doctrine of sovereign immunity.” Lucas v.

State, 141 S.W.3d 121, 127 (Tenn. Ct. App. 2004); see also Tenn. Const. art. I, § 17

(“Suits may be brought against the State in such manner and in such courts as the

Legislature may by law direct.”). “In 1973, the Legislature enacted the GTLA, which

reaffirmed generally the grant of sovereign immunity provided at common law and in the

Tennessee Constitution[.]” Young v. City of LaFollette, 479 S.W.3d 785, 790 (Tenn.

2015). The GTLA provides, in relevant part, that “all governmental entities shall be

immune from suit for any injury which may result from the activities of such

governmental entities wherein such governmental entities are engaged in the exercise and
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discharge of any of their functions, governmental or proprietary.” Tenn. Code Ann. § 29-

20-201(a); see also Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 79 (Tenn. 2001)

(“[T]he General Assembly enacted the Tennessee Governmental Tort Liability Act . . . to

codify the general common law rule that all governmental entities shall be immune from

suit[.]”). The GTLA states, however, that removal of governmental immunity is

appropriate under certain circumstances. For example, Tennessee Code Annotated

section 29-20-205 provides that immunity from suit “is removed for injury proximately

caused by a negligent act or omission of any employee within the scope of his

employment[.]” Thus, a plaintiff who has allegedly suffered an injury at the hands of a

negligent government employee acting in the scope of his or her employment may bring

suit against the relevant government entity.

Nonetheless, section 29-20-205 also goes on to provide for specific circumstances 

under which immunity is preserved even when the plaintiff claims injuries that result 

from an employee’s negligence. As is relevant to this case, section 29-20-205(2) explains 

that immunity is not removed where the injury arises out of “false imprisonment pursuant 

to a mittimus from a court, false arrest, malicious prosecution, intentional trespass, abuse 

of process, libel, slander, deceit, interference with contract rights, infliction of mental 

anguish, invasion of right of privacy, or civil rights[.]” Tenn. Code Ann. § 29-20-205(2) 

(emphasis added). Consequently, this Court has previously held that where the 

“underlying acts which [a plaintiff] alleges to be negligent . . . [are] predicated on 

intentional tortious conduct involving the violation of [the plaintiff’s] civil rights” by 

government employees, the “‘civil rights exception’ in Tenn. Code Ann. § 29-20-205(2)” 

is applicable. Jackson v. Thomas, No. M2010-01242-COA-R3-CV, 2011 WL 1049804, 

at *7 (Tenn. Ct. App. Mar. 23, 2011) (citing Campbell v. Anderson Cty., 695 F.Supp.2d 

764, 778 (E.D. Tenn. 2010)). Recently, this Court reaffirmed the principle that even 

where a complaint couches the claims contained therein as negligent training and 

supervision claims, if the gravamen of the claim involves a violation of civil rights, then 

immunity is preserved. See Cochran v. Town of Jonesborough, No. E2018-01512-COAR3-CV, 2019 WL 1399514, at *7 (Tenn. Ct. App. Mar. 27, 2019) (“[I]n order to 

determine whether immunity bars Appellant’s claim, we must determine ‘the substantial 

point, the real purpose, or the object’ of his action.”).

From our review, the gravamen of Ms. Merolla’s claim against Wilson County is 

that the jail officers exerted excessive force on her given the circumstances. Much of the 

testimony at trial centered on whether the shackling of Ms. Merolla was authorized under 

Wilson County’s own policies or, instead, whether less force should have been utilized.9

 

9 Other testimony focused on the refusal to allow Ms. Merolla to take her diabetes medication. 

This Court has previously held that claims involving whether a jail provided medical care compliant with 

the standard of care are governed by the Tennessee Health Care Liability Act (“THCLA”) and all of its 

attendant procedural requirements. See Estate of Bradley v. Hamilton Cty., No. E2014-02215-COA-R3-

CV, 2015 WL 9946266, at *6 (Tenn. Ct. App. Aug. 21, 2015) (holding that while a claim that a jail 

provided no access to medical care is not governed by the THCLA, a claim that the care provided was 
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Moreover, Ms. Merolla continually insinuated that the action taken against her was 

punitive in nature to stop her complaints and not based on any need to prevent self-harm. 

Ms. Merolla further appears to contend that following the shackling, the guards were 

indifferent to the suffering as evidenced by their decision to allow Ms. Merolla to remain 

in an uncomfortable position for a number of hours.10 Likewise, in her appellate brief, 

Ms. Merolla “is emphatic” in her claim that she was “mistreated by the officers because 

of her accent, and because of her refusal to remain quiet.” Ms. Merolla also characterizes 

the jailer’s behavior as a “decision to punish Ms. Merolla.” Clearly, the gravamen of 

these allegations is that the officers inappropriately punished Ms. Merolla for her 

behavior and thereafter were indifferent to her suffering, causing physical and emotional 

injuries.

In our view, “the substantial point” of Ms. Merolla’s claim therefore involves 

violations of civil rights, regardless of Ms. Merolla’s insistence that the conduct was 

merely negligent. See Tenn. Code Ann. § 29-20-205 (removing immunity for the 

negligence of government employees except where the negligence arises out of, inter 

alia, civil rights); cf. Limbaugh, 59 S.W.3d at 84 (holding that a governmental entity 

may be liable for the harm resulting from an un-enumerated intentional tort where the 

governmental entity was negligent in allowing that intentional conduct to take place). For 

example, in Dillingham v. Millsaps, 809 F.Supp.2d 820, 852 (E.D. Tenn. 2011), the 

United Stated District Court for the Eastern District of Tennessee dismissed a purported 

negligence claim on the basis of immunity where the allegations stemmed from “nothing 

more than [a] civil rights claim[,]” and the negligence claim was “still based upon an 

underlying claim of ‘excessive force.’” In other cases, the United States Supreme Court 

has held that claims of injuries to prisoners related to the deliberate indifference of guards 

and excessive punishments are governed by the Eighth Amendment to the United States 

Constitution. See Farmer v. Brennan, 511 U.S. 825, 828, 114 S. Ct. 1970, 1974, 128 L.

Ed. 2d 811 (1994) (“A prison official’s ‘deliberate indifference’ to a substantial risk of 

serious harm to an inmate violates the Eighth Amendment. . . . In its prohibition of ‘cruel 

and unusual punishments,’ the Eighth Amendment places restraints on prison officials, 

who may not, for example, use excessive physical force against prisoners.”). Thus, these 

claims fall within the ambit of “civil rights” under section 29-20-205(2). See Jackson, 

2011 WL 1049804, at *6 (quoting Bettis v. Pearson, No. 1:04-CV-112, 2007 WL 

2426404, at *11 (E.D. Tenn. Aug. 21, 2007)) (construing the term “civil rights” as 

 

negligent is governed by the THCLA and its attendant procedural requirements). The evidence shows 

that Ms. Merolla was indeed provided access to medical professionals during her brief tenure under the 

control of the Wilson County Jail. Moreover, there is no dispute that the THCLA procedural requirements 

were not met in this case or that Ms. Merolla did not file suit against the independent medical providers 

involved in this case. 

10 In her complaint, Ms. Merolla alleged that she was shackled for up to eight hours. At trial, the 

evidence undisputedly showed that Ms. Merolla was shackled for approximately three hours. Even after 

this evidence was submitted, Ms. Merolla again claimed a significantly longer period of time and was 

corrected by her own counsel. 
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“‘including claims arising under the federal civil rights laws and the U.S. 

Constitution.’”); see also Campbell, 695 F.Supp.2d at 778 (“This court construes the term 

‘civil rights’ in § 29-20-205(2) as meaning and including claims arising under the federal 

civil rights laws, e.g., 42 U.S.C. § 1983 and the United States Constitution.”). 

Indeed, even Ms. Merolla admits in her brief that “a thin line” exists between her 

purported negligence claim and a civil rights claim. However, under the GTLA any 

ambiguity as to whether immunity exists must be resolved in favor of retaining immunity. 

See Hughes v. Metro. Gov’t of Nashville & Davidson Cty., 340 S.W.3d 352, 361 (Tenn. 

2011) (quoting McMahon v. United States, 342 U.S. 25, 27, 72 S.Ct. 17, 96 L.Ed. 26 

(1951) (“[S]tatutes which waive immunity of the [governmental entity] from suit are to 

be construed strictly in favor of the sovereign.”)). As such, we conclude that the claims 

raised by Ms. Merolla in this case arise from violations of her civil rights. Pursuant to 

Tennessee Code Annotated section 29-20-205(2), Wilson County retains sovereign 

immunity for these claims. As such, the trial court did not err in dismissing them.11

II. Tennessee Code Annotated section 8-8-302

Rather than substantively address the civil rights exception to the GTLA’s waiver 

of immunity, Ms. Merolla has chosen to instead argue that liability should nevertheless 

attach under a separate statute, Tennessee Code Annotated section 8-8-302. Wilson 

County argues, however, that this statute does not apply to the actions at issue in this 

case.

We begin with the language of the statute at issue:

Anyone incurring any wrong, injury, loss, damage or expense resulting 

from any act or failure to act on the part of any deputy appointed by the 

sheriff may bring suit against the county in which the sheriff serves; 

provided, that the deputy is, at the time of such occurrence, acting by virtue 

of or under color of the office.

Tenn. Code Ann. § 8-8-302. Tennessee Code Annotated section 8-8-303 provides a 

waiver of sovereign immunity for claims raised pursuant to section 8-8-302. Tenn. Code 

Ann. § 8-8-302(a) (“The governmental immunity of the county in which the sheriff 

serves is waived for purposes of § 8-8-302, but to an extent not in excess of the amount 

of the surety bond executed for that county’s sheriff pursuant to § 8-8-103.”). In 

interpreting this statutory scheme, the Tennessee Supreme Court has held that it applies 

to non-negligent conduct of deputies and that these claims are generally not barred by 

 

11 We note that the trial court was somewhat equivocal as to whether all of Ms. Merolla’s claims 

were barred by sovereign immunity, noting that “[t]o the extent [Ms. Merolla] alleged violations of her

civil rights,” immunity applied. We, however, may affirm on different grounds than that relied upon by 

the trial court. See City of Brentwood v. Metro. Bd. of Zoning Appeals, 149 S.W.3d 49, 60 (Tenn. Ct. 

App. 2004). Moreover, we address any remaining claims, infra.
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GTLA immunity. See Jenkins v. Loudon Cty., 736 S.W.2d 603, 609 (Tenn. 1987), 

abrogated in part by Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73 (Tenn. 2001) 

(“Actions for the non-negligent misconduct of deputies do not “aris[e] pursuant to” the 

GTLA, T.C.A. § 29-20-104(b), and may therefore be covered by T.C.A. § 8-8-301, et 

seq., in the appropriate cases.”);12see also Swanson v. Knox Cty., No. E2007-00871-

COA-R3-CV, 2007 WL 4117259, at *4 (Tenn. Ct. App. Nov. 20, 2007) (describing the 

holding in Jenkins as a ruling “that the GTLA supercedes [sic] Tenn. Code Ann. §§ 8-8-

301, et seq., as it relates to actions based on negligence, but Tenn. Code Ann. §§ 8-8-301, 

et seq., controls as to suits for misconduct of officers”); cf. Davis v. Hardin Cty., 

Tennessee, No. 99-1218, 2002 WL 1397276, at *6 (W.D. Tenn. May 22, 2002) (noting 

that “[a]lthough Limbaugh abrogated Jenkins, it clearly did not affect the holding in 

Jenkins concerning § 8-8-302,” but holding that because a negligence action against a 

governmental entity related to the intentional tort of assault and battery is allowed under 

the GTLA following the Limbaugh decision, there can be no claim of this type under 

section 8-8-302). 

Wilson County contends, however, that the statute does not apply to the actions of 

“jailers,” i.e., corrections officers. In support, Wilson County cites a number of federal 

cases that have generally held that the term “deputy” in section 8-8-302 does not extend 

to jailers. See, e.g., Lundy v. Knox Cty., Tenn., No. 3:13-CV-588-TAV-HBG, 2014 WL 

1491235, at *4 (E.D. Tenn. Apr. 15, 2014) (“[T]he alleged acts of the jail personnel in 

plaintiff’s complaint do not fall under the limited immunity waiver of Tenn. Code Ann. § 

8-8-302 because jail personnel are not considered sheriffs’ deputies under the statute.”); 

Davis v. Hardin Cty., Tennessee, No. 99-1218, 2002 WL 1397276, at *3 (W.D. Tenn. 

May 22, 2002) (“For numerous reasons, the court is convinced that the courts of 

Tennessee would find that a jailer is not a deputy for the purposes of § 8-8-302.”). 

We must note, however, that the Tennessee General Assembly chose to amend this 

statutory scheme in 2017. As such, Tennessee Code Annotated section 8-8-301 now 

expressly states that “[a]s used in this section and § 8-8-302, ‘deputy’ includes a jailer 

appointed by a sheriff pursuant to § 41-4-101.” Were this amendment to apply to this 

case, there could be no dispute that Ms. Merolla’s claim would not be barred by the fact 

that the actions at issue were committed by jailers rather than deputies. The 2017 

amendment to section 8-8-301, however, is simply not applicable to this case. Indeed, 

despite presumed knowledge of the prior interpretations of this act, Lavin v. Jordon, 16 

S.W.3d 362, 368 (Tenn. 2000), the General Assembly chose to apply this amendment 

only “to acts and failures to act on or after” the effective date of the statute, i.e., May 2, 

2017. 2017 Tenn. Laws Pub. Ch. 261 (S.B. 1060). There is no dispute that Ms. Merolla’s 

claims involve acts that occurred in 2012. Moreover, this Court has described as a 

“cardinal rule of construction” that we consider a statute only in its present form unless 

 

12 Jenkins specifically involves claims arising from violations of civil rights, the same types of

claims at issue in this case, as discussed supra. Id. at 604. 
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doing otherwise would result in a manifest injustice. Loftin v. Langsdon, 813 S.W.2d 

475, 480 (Tenn. Ct. App. 1991) (“This Court will not depart from the cardinal rule of 

construction that the interpretation of statutes does not extend to amendment of 

legislation. This statute, like all statutes, must be applied in its present form unless doing 

so would result in ‘manifest injustice.’”) (citation omitted). As such, we consider the 

statute as it existed when Ms. Merolla’s cause of action accrued. 

Although the decisions of federal courts are not binding on this Court, see Goree 

v. United Parcel Serv., Inc., 490 S.W.3d 413, 437 (Tenn. Ct. App. 2015), we find the 

reasoning utilized by the federal courts applying the applicable version of section 8-8-302 

highly persuasive. As the Court in Davis explained: 

In approaching this issue, it should first be noted that the court is dealing 

with a statute waiving governmental immunity. Tennessee courts have 

traditionally treated statutes which waive sovereign immunity with great 

deference to the language of the statute. Quoting from the Tennessee 

Supreme Court in reference to the GTLA:

The limited waiver of governmental immunity 

provided for in the Act is in clear derogation of the common 

law. Generally, statutes in derogation of the common law are 

to be strictly construed and confined to their express terms, 

and that rule of construction has been expressly incorporated 

into the Act. . . .

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

Cockrell, 902 S.W.2d 394, 399 (Tenn. 1995)). Since § 8-8-302 similarly 

modifies the common law, it would be strictly construed by the Tennessee 

Supreme Court. Under a strict construction of § 8-8-302 the term deputy 

would not be extended to cover jailers.

Another reason Tennessee courts are likely to distinguish between 

deputies and jailers is because the legislature has made that same 

distinction. Other provisions of the Tennessee Code reinforce the view that 

the Tennessee legislature distinguishes between the terms “deputy” and 

“jailer”. The best indication of this is provided by Tennessee Code 

Annotated § 8-8-201(3) which states that the sheriff of the county shall 

“[t]ake charge and custody of the jail of the sheriff’s county, and of the 

prisoners therein; receive those lawfully committed, and keep them 

personally, or by deputies or jailer, . . . .” Tenn. Code Ann. § 8-8-201(3) 

(Supp. 2001) (emphasis added). Yet another indication is provided at 

Tennessee Code Annotated § 40-11-128, where the legislature elected to 

list jailers and deputies separately in enumerating those disqualified from 

serving as bonds men. See Tenn. Code Ann. § 40-11-128. Given these 
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listings of “deputies” and “jailers” separately, it is clear that the Tennessee 

legislature draws a distinction between the two terms.

The interaction of the GTLA and § 8-8-302 also provides ample 

basis for concluding that the Tennessee legislature distinguishes between 

the liability for jailers and deputies. The Tennessee legislature passed § 8-8-

302 in 1972. The section is very inclusive in terms of the actions which it 

potentially covers-essentially it allows a cause of action for any wrongful 

action of a deputy. The next year the Tennessee legislature passed the 

GTLA. Although the GTLA, in comparison to § 8-8-302, made 

governmental entities liable for the actions of a larger selection of 

employees, the actions which could create liability were decidedly 

narrower. Thus, [the] GTLA was broader than § 8-8-302 in that the actions 

of more employees could subject a governmental entity to a cause of action, 

but narrower in that the causes of action which the governmental entity 

could be sued for were fewer. From the interplay of these two statutes, one 

could conclude that the Tennessee legislature intended to provide 

government liability for the actions of jailers governed by the narrower 

liability of the GTLA and to reserve the heightened liability of the county 

in § 8-8-302 for actions of deputies.

Further, there are considerable logical differences between deputies 

and jailers which support the legislature’s distinction between the two. 

Deputies, generally speaking, are better trained and are given duties which 

bring them in closer contact with the general public. Jailers, on the other

hand, are often provided less training and are given duties which are 

normally conducted within the confines of the county jail. These two jobs 

are vastly different in nature and the potential liability of a county for the 

actions of agents holding these positions is likewise different. Thus, it is not 

surprising that the Tennessee Legislature decided to differentiate these 

positions for the purpose of governmental immunity.

Davis, 2002 WL 1397276, at *3–*4. In the present case, Ms. Merolla chose not to file a 

reply brief or to make any argument about the application of section 8-8-302 to her 

claims related to the actions of jailers. Indeed, the minimal way that this issue was raised 

in the trial court and in this Court implicates the doctrine of waiver. 

Generally, when arguments are not raised in the trial court, they may not be raised 

for the first time on appeal. Fayne v. Vincent, 301 S.W.3d 162, 171 (Tenn. 2009). The 

party invoking waiver must show, however, that the issue was in fact not raised in the 

trial court. Id. at 171 (“While we endorse the continuing vitality and validity of the 

principle that parties will not be permitted to raise issues on appeal that they did not first 

raise in the trial court, we also hold that the party invoking this principle has the burden 

of demonstrating that the issue sought to be precluded was, in fact, not raised in the trial 

court.”). Here, Ms. Merolla raised her claim under section 8-8-301, et. seq. in her 
- 12 -

complaint in two places. First, in her introductory paragraph, Ms. Merolla states her 

intention to raise an alternative claim under section 8-8-301. Later, Ms. Merolla’s 

complaint states that she “asserts a claim for damages, based upon the conduct described 

above, pursuant to [section] 8-8-301, which permits a direct action against counties when 

their Sheriff’s Deputies engage in conduct which causes foreseeable and actual harm to a 

person held under custodial circumstances such as the Plaintiff.” 

A claim under this sections 8-8-301 and -302 is not mentioned in any other 

pleadings or filings by Ms. Merolla. Instead, it appears that Ms. Merolla effectively 

abandoned this claim. Indeed, in her pre-trial brief, Ms. Merolla specifically states that a 

“decision” was made not to claim that her injuries resulted from “willful, deliberate,” i.e., 

non-negligent, conduct because the behavior of the jail staff was “more the product of 

benign ignorance, than any willful . . . attempt to harm Ms. Merolla.”13 Thus, Ms. 

Merolla’s pre-trial brief makes clear that she is claiming only that a “negligent act” 

occurred, rather than non-negligent conduct. Additionally, when Wilson County lodged a 

motion for involuntary dismissal at the close of Ms. Merolla’s proof regarding GTLA 

immunity, Ms. Merolla offered no argument that her claim was actually based on section 

8-8-302, rather than the GTLA. Indeed, once again, counsel for Ms. Merolla explained 

that her claim was that there was a “negligent, not intentional decision to hurt her.” As a 

result, the trial court’s oral ruling and written order understandably make no mention of a 

claim under section 8-8-302. 

Ms. Merolla does, however, designate liability under section 8-8-302 as an issue in 

her brief. The argument on this issue, however, is sparse at best. Specifically, other than 

citing the language of section 8-8-302, the totality of Ms. Merolla’s argument as to 

liability under this statute is as follows:

Jenkins v. Loudon County, 736 S.W.2d 602 (Tenn. 1987) clarifies that 

actions for non-negligent misconduct of a deputy would not be covered 

under T.C.A. § 29-20-104(b) (The Tennessee Governmental Tort Liability 

Act) and would therefore be covered by the above referenced statute where 

the conduct rises to the level of willful or deliberate indifference, as 

opposed to mere negligence. Also see, Doe v. Sullivan County, 956 F.2d 

545 (6th Cir. Tenn. 1992). Certainly, the facts [at issue in this case] could 

be reasonably placed into either category. The broad scope of the 

 

13 This “decision” proved misguided as, discussed infra, Ms. Merolla’s purported negligence 

claim is in fact barred by GTLA immunity because it arises from civil rights violations. However, “the 

plaintiff is the master of his complaint,” Loftis v. United Parcel Serv., Inc., 342 F.3d 509, 515 (6th Cir. 

2003), and this Court is limited to correcting the trial court’s errors rather than steering the plaintiff’s case 

toward the cognizable claims that had been abandoned by the litigant. Cf. McDonough v. McDonough, 

499 S.W.3d 401, 405 (Tenn. Ct. App. 2016) (quoting Mosley v. State, 475 S.W.3d 767, 774 (Tenn. Ct. 

App. 2015)) (“Importantly, ‘[t]his Court functions as an error-correcting intermediate appellate court.’” 

(some internal citations omitted)).
- 13 -

application of the statute is discussed in Buchanan v. Williams, 434 F. 

Supp. 2d 521 (M.D. Tenn. 2006).

Thus, in a rather conclusory fashion, Ms. Merolla appears to change her theory regarding 

the acts or omissions at issue in this case. Arguments may be waived on appeal not only 

through the failure to designate the argument as an issue or the complete failure to brief 

the argument, but also by raising the argument in only a “skeletal” fashion. See Sneed v. 

Bd. of Prof’l Responsibility of Sup. Ct., 301 S.W.3d 603, 615 (Tenn. 2010) (“[W]here a 

party fails to develop an argument in support of his or her contention or merely constructs 

a skeletal argument, the issue is waived.”). Moreover, “‘[i]t is well-settled that an 

appellant is bound by the evidentiary theory set forth [in the trial court], and may not 

change theories on appeal.” Wells Fargo Bank, N.A. v. Dorris, 556 S.W.3d 745, 759 

(Tenn. Ct. App. 2017), perm. app. denied (Tenn. May 17, 2018) (quoting State v. Alder, 

71 S.W.3d 299, 303 (Tenn. Crim. App. 2001)). From our review, Ms. Merolla’s apparent 

abandonment of her claim under section 8-8-302 in the trial court and the negligible 

manner in which this argument was addressed both in the trial court and on appeal 

arguably constitute waiver. 

In the absence of sufficient argument on this issue, we are inclined to agree with 

the federal courts that section 8-8-302 as it existed at the time of the events in this case 

does not create a waiver of immunity for jailers. Indeed, Ms. Merolla has cited no 

caselaw that specifically addressed this argument and come to an opposite conclusion. Cf. 

Karnes v. Madison Cty., No. W2009-02476-COA-R3-CV, 2010 WL 3716458, at *1 

(Tenn. Ct. App. Sept. 23, 2010) (noting that a section 8-8-302 claim related to the 

inaction of jail employees was dismissed by agreement); Linkous v. Lane, 276 S.W.3d 

917, 920 (Tenn. Ct. App. 2008) (noting that the plaintiff’s claim under section 8-8-302 

for the actions of a jailer was dismissed in the trial court without stating the basis of the 

dismissal and noting that such claim was not appealed); Corder v. Metro. Gov’t of 

Nashville & Davidson Cty., Tenn., 852 S.W.2d 910 (Tenn. Ct. App. 1992) (involving a 

claim under section 8-8-302 related to the actions of a correctional officer, but dismissing 

the claim on the basis that the officer was not on duty at the time of the misconduct 

without any discussion of whether the officer was a deputy under the statute). As such, 

we agree with the district court’s conclusion that “deputy” as used in section 8-8-302 did 

not include jailers prior to the 2017 amendment. See Davis, 2002 WL 1397276, at *3–*4. 

Here, the alleged bad actors in this case were jailers or corrections officers rather than 

deputies.14 As such, section 8-8-302 did not remove Wilson County’s immunity for the 

claims at issue and Ms. Merolla’s claim under section 8-8-302 must fail as a matter of 

 

14 When asked their jobs and titles at trial, for example, none of the jailers testified that they are

Sheriff’s Deputies. Ms. Merolla again points to no evidence and offers no argument to the contrary in this 

appeal. See Tenn. R. App. P. 27(a)(7) (requiring the argument of the appellant to include the contentions 

of the appellant with appropriate references to the record). Although this case does include some actions 

by Sheriff’s deputies, who arrested Ms. Merolla and transported her to the Wilson County Jail, no 

misconduct is alleged against these individuals.
- 14 -

law. Cf. Lucas v. State, 141 S.W.3d 121, 127 (Tenn. Ct. App. 2004) (citing Memphis v. 

Kimbrough, 59 Tenn. 133 (Tenn. 1873)) (“Because of sovereign immunity the entity was 

not liable in respondeat superior for the acts or omissions of its agents, servants, or 

employees, except in cases where such immunity was modified by statute or the entity 

was exercising proprietary functions.”).

Even assuming, arguendo, that this claim was not waived, not barred by GTLA 

immunity, and that liability may attach for the actions of jailers, we must conclude that 

Ms. Merolla was not entitled to judgment in her favor on this claim. Here, the trial court 

made extensive oral findings with regard to Ms. Merolla’s purported negligence claim. 

These findings also preclude liability under section 8-8-302. Specifically, the trial court 

found that Ms. Merolla “was treated fairly [and that Wilson County] took reasonable 

precautions.” With regard to the alleged failure to administer Ms. Merolla’s medication, 

the trial court specifically found that the jailers’ actions were “appropriate” under the 

circumstances, including issues involving the introduction of illegal drugs into the jail 

and the delegation of medical decisions to medical staff, rather than jailers. Finally, the 

trial court found that “[t]here [was] absolutely no proof whatsoever that [Ms. Merolla] 

was, quote, tortured.” Rather, the trial court found that any alleged harm was caused by 

Ms. Merolla’s own actions and the scuffle with her son-in-law. 

The evidence in the record does not preponderate against these findings. 

Importantly, the trial court expressly found that Ms. Merolla lacked credibility. As 

explained by our supreme court, 

Unlike appellate courts, trial courts are able to observe witnesses as they 

testify and to assess their demeanor, which best situates trial judges to 

evaluate witness credibility. Thus, trial courts are in the most favorable 

position to resolve factual disputes hinging on credibility determinations. 

Accordingly, appellate courts will not re-evaluate a trial judge’s assessment 

of witness credibility absent clear and convincing evidence to the contrary.

Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999). Ms. Merolla has 

pointed to no evidence to rebut the trial court’s credibility findings and we discern none 

in the record; on the contrary, Ms. Merolla’s own admissions of embellishments to serve 

her own purposes fully supports the trial court’s finding that she lacked credibility. As 

such, where a dispute exists between Ms. Merolla’s version of events and the evidence 

presented by the jailers or the nurse on duty, we will generally credit the testimony 

provided on behalf of Wilson County. Thus, for example, we simply do not credit Ms. 

Merolla’s claim that she was allowed to soil herself due to the indifference of the jailers. 

Moreover, we agree with the trial court’s finding that Ms. Merolla failed to present 

sufficient evidence that she was hogtied in violation of the Wilson County Policies and 

Procedures. As previously discussed, the Wilson County jailers testified to their 
- 15 -

understanding that the shackling that Ms. Merolla experienced did not constitute 

hogtying. Ms. Merolla offered no competent proof to rebut these officer’s definitions. 

Moreover, no Tennessee case has ever defined this term. Webster’s New World College 

Dictionary defines the term, broadly, as “to tie . . . the hands and feet so as to make

incapable of effective action.” Webster’s New World College Dictionary 692 (5th ed. 

2014). In contrast, the United States Court of Appeals for the Tenth Circuit defines the 

term more specifically as “binding of the ankles to the wrists, behind the back, with 12 

inches or less of separation.” Cruz v. City of Laramie, 239 F.3d 1183, 1188 (10th Cir. 

2001). Here, there can be no dispute that the shackling that occurred did not meet the 

Tenth Circuit’s definition of hogtying. Id. Moreover, Ms. Merolla’s own testimony was 

that she was limited in her movements but not incapable of movement. Webster’s New 

World College Dictionary at 692. In the absence of any competent proof to the contrary, 

we must conclude that Ms. Merolla failed to show that Wilson County jailers violated the 

Wilson County Jail Policies prohibiting hogtying in this case. 

Ms. Merolla also makes much of the fact that no video evidence was presented as 

to her behavior prior to becoming shackled; the undisputed evidence in the record, 

however, is that this episode was simply not recorded. Nothing in the Wilson County Jail 

Policies required the jailers to record the behavior that led to the use of restraints. 

Moreover, in the absence of other proof and in light of Ms. Merolla’s lack of credibility, 

it was therefore appropriate to credit the testimony of the Wilson County employees that 

the shackling of Ms. Merolla was appropriate under the circumstances to prevent her 

from causing harm to herself and therefore complied with all applicable policies. 

There is also no dispute that Ms. Merolla was seen by medical professionals, both 

by being allowed to go to the hospital prior to being transported to jail and by being seen 

by the Southern Health Partners nurse during her overnight stay at the jail. See Estate of 

Bradley, 2015 WL 9946266, at *6. Moreover, Ms. Merolla’s claim that the jail failed to 

provide her a mental health screening is undermined by her own failure to disclose her 

mental health issues on her intake form. Under the totality of the circumstances, Ms. 

Merolla simply failed to prove that the Wilson County jailers committed any nonnegligent misconduct for which liability could attach under section 8-8-302. 

In sum, Ms. Merolla’s negligence claim is barred by GTLA immunity where the 

purported negligence claims at issue arise from civil rights violations. Ms. Merolla’s 

claim under section 8-8-802 also fails due to a combination of waiver, that her claims 

against jailers are not cognizable under the applicable version of 8-8-302, and that the 

preponderance of the evidence does not support a finding that Wilson County jailers 

engaged in any non-negligent misconduct. As such, the trial court’s ruling is affirmed. 

III. Expert Testimony of Captain Whitefield
- 16 -

Finally, Ms. Merolla contends that the trial court abused its discretion in 

qualifying Captain Whitefield as an expert. To the extent that this case was resolved as a 

matter of law with regard to GTLA immunity and the applicability of section 8-8-302, 

this issue is pretermitted. Because we have nevertheless considered the facts in support of 

Ms. Merolla’s claims supra, we will briefly address this issue. 

Issues related to the admission or exclusion of evidence, including the admission 

or exclusion of expert testimony, are reviewed for an abuse of discretion. Regions Bank 

v. Thomas, 532 S.W.3d 330, 336 (Tenn. 2017). “An abuse of discretion occurs when a 

court strays beyond the applicable legal standards or when it fails to properly consider the 

factors customarily used to guide the particular discretionary decision.” Lee Med., Inc. v. 

Beecher, 312 S.W.3d 515, 524 (Tenn. 2010) (citing State v. Lewis, 235 S.W.3d 136, 141 

(Tenn. 2007)). 

Here, Ms. Merolla has not shown that the trial court abused its discretion in 

allowing Captain Whitefield to testify as an expert regarding the use of force. Captain 

Whitefield’s testimony and expert disclosure indicate that he has more than ten years of 

experience in the field of corrections and has participated in approximately sixty to eighty 

hours of training per year concerning different topics in corrections. Captain Whitefield 

has both participated in and taught classes specifically concerning the use of force. In 

addition, Captain Whitefield was one of two officers who worked with the United States 

Department of Justice to draft the Wilson County Jail Policies and Procedures. 

In determining whether a proffered witness is qualified as an expert, “the trial 

court must first make a determination that the witness is qualified by knowledge, skill, 

experience, training, or education to express an opinion within the limits of the expert’s 

expertise.” State v. Stevens, 78 S.W.3d 817, 834 (Tenn. 2002) (citing Tenn. R. Evid. 

702). “The determinative factor is whether the witness’s qualifications authorize him or 

her to give an informed opinion on the subject at issue.” Id. Here, Captain Whitefield’s 

experience and training make him fully qualified to give his opinion regarding the use of 

force and compliance with the Wilson County Policies and Procedures. Ms. Merolla 

makes much of the fact that Captain Whitefield was not aware of recent orders in federal 

court concerning jails in other counties. These orders have no bearing on Captain 

Whitefield’s qualifications; if anything, these issues go to the weight of his testimony 

rather than admissibility.15 See Shipley v. Williams, 350 S.W.3d 527, 551 (Tenn. 2011) 

“Once the minimum requirements [regarding the competency of an expert] are met, any 

questions the trial court may have about the extent of the witness's knowledge, skill, 

experience, training, or education pertain only to the weight of the testimony, not to its 

 

15 Ms. Merolla also takes issue with Captain Whitefield’s testimony regarding the pain that was 

caused by the shackling as outside of his expertise, but then immediately states that Captain Whitefield’s 

“‘opinion’ on that is not actually expressed.” This argument simply lacks merit.
- 17 -

admissibility.”). After considering the entire record, we conclude that the trial court did 

not abuse its discretion in allowing Captain Whitefield to testify as an expert in this case. 

CONCLUSION

The judgment of the Circuit Court of Wilson County is affirmed. Costs of this 

appeal are taxed to the Appellant Cheryl Merolla, for which execution may issue if 

necessary. 

_________________________________

J. STEVEN STAFFORD, JUDGE