### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE May 14, 200 2 Session

CHRISTINA FORTENBERRY v. G.T. GEORG E, ET AL 

### . Appeal from the Circuit Court for Knox County No. 1-617-98 Dale C. Workman, Judge

No. E2000-02984-COA-R3-CV Filed July 3, 2002

This lawsuit arises from a traffic stop of the plaintiff, Christina Fortenberry (“Plaintiff”), by a City of Knoxville police officer, G.T. Geo rge (“G eorge” ). Plaintif

f sued Ge orge, the

Knoxville

Police Departmen t chief, Phi l Keith (“ Keith”) , and the C ity of Knox ville (“C ity”). In

her Compla

int, Plaintiff alleged claims of assault and battery and f alse impr isonment and alleged that George’s conduct was inten

tional an d reckle ss. Plaintif f later a mended he

r Complain

t to al lege negligent conduct by George. The Trial Court granted a Tenn. R. Ci v. P. 12.02(6) Motion to Dismiss filed jointlyby Keith an d the City, h olding that the Amended Complaint failed to state a claim upon which relief can be granted under the Te nnessee Governmental Tort Liability Act (“GTLA” )

. Plaintiff appeals. We affirm, in part, and vaca te, in part, and remand. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirm ed, in part, and Vacat ed, in part ; Case Re

manded.
D. M ICHAEL S WINEY , J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS , J., joined. H OUSTON M. G ODDARD , P.J., filed a concurring opinion. David L. Bacon, Knoxville, Tennessee, for the Appellant, Christina Fortenber ry. Ronald E. Mills, Knoxville, Tennessee, for the Appellees, Phil Keith and the City of Knoxville.
OPINION Background On October 6, 1997, Plaintiff was stopped for a traffic violation by a police officer employedby the City o f Knoxvill e Police Department. The record shows the police officer, G.T. George, after st

opping Plaintiff, ar

rested Pl aintiff f

or drivin g with out a val id driver’s license; resisting arrest; and for criminal impersonation.-2- Exactly one yea r after this incident, on October 6, 1998, Plaintiff filed a Complaint naming as defe

ndants Ge orge, Poli ce Chief Keith, and the City of

Knoxville . In the Co mplaint, Plaintiff claimed George caused her to sustain serious physical injuries dur ing the October 1997, traffic stop. Paragraph 6 of the Complaint set forth a claim for a ssault and battery against George stating that George “did unnecessarily and intentiona

lly or rec klessly c ause ser

ious bodily

injury to the Plaintiff.” Paragraph 7 of the Complaint is captioned “false imprisonment.” Despite its caption, paragr aph 7 act ually discusses Plaintiff’s arrest by George for resisting arre st and, therefore, the paragraph amounts to, in substance, a claim for false a rrest. In addition, Plaintiff alleged all three defenda nts were liable for violation of 42 U.S.C. § 1983 due to Keith’s intentional, reckl ess, an d negligent failure to trai n, supervise, and control George. In her pra yer for relief, Plaintiff sought bothcompensa

tory and p

unitiv e d amages from all three defendants. Shortly after f iling the Complaint, Plaintiff

voluntar ily dismissed h

er “cla ims agains tthe defe

ndants ba sed upon 4 2 U.S.C. [§] 1983.”
Keith

and the City (“De

fendant s”) jointl

y filed an Answer. The record shows Ge orge was never served with a copy of the Complaint andSummons, and the return of summons shows the processserver was unable to contact George . The record shows Plaintiff never obtained issuance of new pr ocess.
In September 2000, Defendants filed a Motion to

Dismiss based upon Tenn. R. Civ. P. 12.02(6) . Defendants con tended, in their

motion, tha

t under the GTLA, t

hey can not be hel d liable for the intentional acts of George. Since Plaintiff had voluntar ily dismisse d the 42 U. S.C. § 1983 claims, the only allegations remaining in the Complaint involved the reckless or intentional conduct of George for assault and battery and fa lse imprisonment/false arrest. Defendants contended in their motion that unde

r the GTL

A, th e claim s against

the City should be dism issed bec ause as a governme nta l entity, it was immune from Plaintiff’s remaining claims of assault and battery and false imprisonment/false arrest because the claims did not involve negligent conduct. Inaddition, Defendants pointed to the statutory exception to the GTLA’s removal of immunity in Tenn. Code Ann. § 29-20-205(2) for false imprisonment claims. Defendants also a rgued the claims agains t Keit h should be dismissed becau se Keith could not be held liable under the GTLA, Tenn. Code Ann. § 29- 20-310(b).
After

Defendants filed the ir Motion to Dismiss, Plaintiff filed a Motion to Amend Complaint (“Motion to Amen d”) seeki ng to add a claim of negligence to Paragraph 6 which a s discussed, alleged that George was liable for assault and battery. Plaintiff also sought to add a new prayer for reli ef which

stated a s follows:
The City of Kn oxvill e, Tennessee, is liable to the Plaintiff for any reckle ss or negligent

acts of the Defendant, G.T. George, by vir tue of his function as a city employee, acting as an agent of the City . . . and is liable for damages under the [GTLA]. . . .1 Plaintiff a lso co nten ds, on app eal, that the Amended Complai nt cont ained an al legat ion of negli gence on t

he pa rt of K eith in hi s t rai ning, super visi on and control of George, but t

he recor d shows these a ll egati ons were part of Plaintiff ’s 42 U.S.C. § 19 83 claims wh ich, as discussed, Pl aintiff volu ntarily dism issed so on a fter filing the C om plain t.
2 Defendant s, on appeal , ar gue tha t both the or igi nal Complai nt and t he Amended Complaint fail ed to state a cl aim upo n which relief can be gr ant ed. Because t he order upon which Plaint iff’ s appeal i s based gran ted P laintiff’s M otion to A me nd, h ow eve r, we will co nside r on ly the Am end ed C om plain t. -3- The technical record on appeal shows Plaintiff did not file a proposed amended

complaint containing these amendments and deleting the 42 U.S.C. § 1983 claims.

In Novembe

r 2000, in a

n Order of Dismissa

l, the Tri al Court gr

ante d Plaintiff’s Motion to Amend, but also granted Defendants’ Motion to Dismiss. The Order of Dismissal states
a hearing was held, but the record on appea l does not contain a transcript of the hearing. The Trial Court, while stating in the order that Plaintiff ’s Complaint, even a s amende d, faile d to state a claim upon which relief can be granted under the G TLA, did not provide the specific basis for its decision. Although Plain ti ff never filed a proposed amended c omplaint or an amended complaint after the order, we will re

fer to the form of th

e Complain

t which contains t

he amend

ments but does not contain the 42 U.S. C. § 1983 cl aims as the “Amended Complaint

” becau se the Trial Court granted Plaintiff’s Motion to Amend.

Plaintiff appeals.
Discussion
On appeal and although not exactly stated as such, Plaintiff

raises o ne issue f

or this Court’s consider

ation: whe

ther the Trial Cour

t erred in granting Defendan ts’ Motion t o Dismiss because, Plaintiff argues, her Amended Complaint stated a claim upon which relief can be granted since it included a

llegation s of negli gent cond uct. 1
Defend ants, on appea

l, contend the Tria

l Court did not err in g

ranting th eir Tenn . R. Civ. P. 12.02(6 ) Motion to Dismiss. 2 Defendants do not dispute the Trial Court’s grant of Plaintiff’s Motion to Amend Complaint.

Our Supreme Court has described the standard of review of the Trial Court’s granting of a Motio n to Dismiss u

nder Te nn. R. Civ. P. 12.02(6) as follow s:
A Rule 12.02(6) motion to dis miss only seeks to determine whether the pleadings state a claim upon which relief can be gra

nted. Such a motion challen ges the legal sufficiency of the complaint, not the strength of the plaintiff’s proof, and, therefore, mat t ers outside the pleadings should not be considered in deciding whether to grant the motion. See Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen-4- & Ginsburg, P.A. , 986 S.W.2d 550, 554 (Tenn. 1999). In reviewing
a motion to dismiss, the appellate court must construe the complaint liberally, presumin g all f

actual allegations to be true and giving the plaintiff the benefit

of all reasonable inferences. See Pursell v. First Am. Nat’l Bank , 937 S.W.2d 838, 840 (Tenn. 1996). It is well-settled th at a co mplaint sho

uld not be d

ismissed f

or failur e to state a claim unless it appears that the plaintiff can prove no set of facts in support of his or her claim that would warrant relief. See Doe

v. Sundqu ist , 2 S.W.3d 919, 922 (Tenn.1999); Fuer st v. Methodist Hosp. S. , 566 S.W.2d 847, 848 (Tenn. 1978). Great sp ecifici ty in the ple adings is ordinar ily not requi

red tosu rvive a motion to dismiss; it is enough that the complaint

set forth “a short and plain statement of the cl aim showing that the pleader is entitled to rel ief.” White v. Revco Disc. Drug Ctrs., Inc. , 33 S.W.3d 713 , 718 (Te nn. 2000)(citing T enn. R. Civ. P. 8.01). We review the trial court’s legal conclusi ons de novo withoutgiving any

presumpt ion of cor rectne ss to those conclusions. Id. Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696-97 (Tenn. 2002).

As an initial matter and although no party raises the issue on appeal, we will ad dress whether this Court h as jurisd iction to hear this appeal because the Order of Dismissal may not be
a final judgment from which an appeal as of right lies. See Tenn. R. Ci v. P. 54.02; Tenn. R. A pp. P. 3(a). The Orde r of Dismissal does not adjudicate all claims or the rights and liabilities of all the parties, namely George, and does not include the express langua ge found in

Rule 54.02

to designa

te the Order of Dismissal as a f inal judgment. See id. In the interest of judicial economy, however,
we will trea

t this appe al as a Te

nn. R. App. P. 10 extra

ordinar y appea l and cons ider the

merits of this appeal.

It

is notewor

thy to menti o n that Pla

intiff’s Complaint and Motion to Amend were drafted in such a way as to make this Court’s resolution of this appeal unnecessarily difficu lt. Likewise, the Orde

r of Dismis sal failsto state th e Trial C ourt’s re aso n for gra nting Def endants’ Motion to Dismiss, other than the rote, standard language of Tenn. R. Civ. P. 12.02(6), and, therefore, sheds little light on the Trial Court’s specific basis for granting the motion.

Since this case

involves a

suit for damages against a governmental entity and two of its employee s, the Ten

ness ee Go vernmental Tort Liability Act applies. The GTLA carves out exceptions to the general rule of sovereign immunity w hich provides “‘suit may not be brought against a govern mental en tity unless that governmental entity has consented to be sued.’” Doyle v. Frost , 49 S.W.3d 853, 857 (Tenn. 2001) (quoting Hawks v. City of Westmoreland , 960 S.W.2d 10, 14 (Tenn. 1997)); see also Tenn. Const. Art. I, § 17 (stat ing “[s] uits may be

brought a gainst the State in such manner and in such courts as the Legislature may by law direct ” ). The GT

LA provid

es a general rule of im

munity fro m suit

for any injury resulting from activities of governmental entities-5-

“engaged in the exe rcise a nd discha rge of a ny of thei r functions, gover

nme ntal or p roprietary” except
as specifically provided by the GTLA. Tenn. Code Ann. § 29-20-2 01(a); Limbaugh v. Coffee Med. Ctr. , 59 S.W.3d 73, 84 (T enn. 2001 ); see also Tenn. Code Ann. § 29-20-206 (further discussing, where the GTLA

removesimmunity , the gover nmental entity’s consent to be sued and determination of its liability). The GTLA is in derogation of the com mon law a nd must be strictly construed. Limbaugh v. Coffee

Med. Ctr. , 59 S.W.3d at 83. Accordingly, claims for damages brought under the GTLA must strictly comply with the GTLA. Tenn. Code Ann. § 29-20-201(b)(3).

The GTLA removes immunity for an injury “proximately caused by a negligent act
or omission of any employee within the scope of his employment . . .” but pr ovides a list of exceptions to this removal of immunity, including certain enumerated intentional torts, if the injury arises out of them. Tenn. Code Ann. § 29-20-205 (emphasis added). A governme ntal ent ity , therefore, is immune f

rom suit fo

r claims listed in the exceptions of Tenn. Code Ann. § 29-20-205. Moreover, the GTLA

providesthat, before finding a governmental entity liable for damages, a court must find the following:

(1) the acts of the employeewere ne gligent a nd the pro ximate ca

use of plainti ff’s inju

ry; (2) the employee was acting within the scope of his employment; and (3) none of

the exceptions provided by the GTLA at Tenn. Code Ann. § 29-20-205 apply. Tenn. Code Ann. § 29-20-310(a).

The applica

ble statute of

limitationsperiod f

or a GTLA

claim is tw elve mont

hs, or one yea r, afte r the ca use of actio n arises

. Tenn. Code Ann. § 29-20-305(b). Compliance with the twelve- month

limitationsperiod isa conditi on precedent to a p laintiff ’s right to bring suit under

the GTLA. Daniel v. Hardin County Gen. Hosp., 971 S.W.2d 21, 25 (Tenn. Ct. App. 1997).

Before discussing Plaintiff’s claims against the City, we will address the issue of whether Plaintiff stated a claim against Keith upon which relief can be granted. See Tenn. R. Civ. P. 12.02(6). The record on appeal shows Plaintiff

’s origina l Complaint c ontained

allegati ons again st Keith for failure to train, supervise, and control Officer George , but, as discussed, Plaintiff dismissed these allegations when she volunt arily dism issed her 42 U.S.C. § 1 983 claim s. Even wi th a liberal
r eadin g of Plaintiff’s Amended Complaint, it does not state any claim whatsoever against Keith. Accordingly, we hold the Trial Court correctly granted D efe ndants’ Ru le 12.02( 6) Motion to Dismiss with respect to Plaintiff’s claims against Keith. See Tenn. R. Civ. P. 12.02 (6); Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d at 696-97.

Next, we will determine whether it was proper to dismiss Pla

intiff’sclaims ag ainst the City upon Defendants’ Tenn. R. Civ. P. 12.02(6) motion. Defendants, on appeal, argue the Trial3 In Do yle v. Frost , plaintiff s sou ght to add a new defe nda nt un der th e follo win g lan gua ge o f Ru le 15 .03:

An amendment chan ging the p arty o r the n am ing o f the p arty by or agai nst whom
a claim is asserted relates b ack if the fo rego ing p rov ision is satisfied and if, within the peri od provide d by law for commencing an act

ion or withi n 120 da ys after commencement of t he act ion, the part y to be brought in by amendment (1) has received suc h notice of the i nsti tut ion of the a cti on that the pa rty wi ll not be prejudiced in maint aini ng a defe nse on t he merit s, and (2) knew or shoul d have kno wn that , but

for a mist ake conce rning the i denti ty of the proper part y, the act ion would have bee n brought agains t the part y. -6- Courtcorrectly dismissedPlaintiff’s Amended Complaint because the GTLA’s one year sta tute of limitations period bars Plaintiff’s claim of negligence as the amendment was made more than one year after th e Octobe r 1997, tr affic st op. Defe ndants co ntend the

amendme

nt, under Te

nn. R. Civ. P. 15.03, doe s not “relate bac k” to the f

iling date of the or iginal Comp laint. Plaintiff do es not address this issue in her brief.

The “relati on back”ruleis found at Tenn. R. Civ. P. 15.03 and provides, in pertinent part, asfollows:

Whenever

the claim or defense asser ted in t he amended pleadings
arose out of t h e conduct, transaction or occurrenc e set forth or attemptedto be set f

o rth in the original pleading, the amendment relates back to the date of the original pleading. . . . Our Supre

me Court, in Doyle v . Frost , 49 S.W.3d 853 (Tenn. 2001), addressed the issue of whether the “relation back” doctr ine of Rule 15.03 applies to GTLA actions a gainst governmental entities. The Doyle Court held that it does, rejecting the arguments that application of Rule 15.03 runs counter to the rule of strict construction of the GTLA and that application of the doctrine would enlarge the GTLA’s one-year sta tute of limitations period. Id. at 858. The Court

in Doylefound that where the requirements of Rule 15.03 ar e met, a n amendment to a complaint “relates back,” and, accordingly, the amendment “is not consider ed excepted from the ap plicable statute of limitations, it is considered made before the limitations period expired.” Id.

Defend ants, on appeal, argue Doyle v . Frost does not a

pply to this matter because the facts are distinguishable. Defendants correctly point out that in Doyle , the plaintiff s, after th e statute of limitations period had expired, sought to amend their compl aint to add a defendant under Rul e 15.03. 3 Defend ants cont

end this ma

tter is dis tinguisha

ble from Doylebecause

Plaintiff seeks to add nota defendant but a claim, the claim that George was negligent in his assault of Plaintiff, after the expiration of the one-year limitations period. We find this distinction immaterial. Id. It is instructive to review the holding of the Doyle v . Frost , which is, in pertine nt part, a s follows:

In sum, we hold that the relation back doctrine em bodied in R ule 15.03 doe s not exte nd or enla

rge the a pplicabl e sta

tute o f-7- limi tations period, for amendments pursuant to the rule a r e considered

filed on the

date of the original, timely pleading, and such amendme nts only may be made if theRule’s notice requirements are met. The Rule does not compromise the protections afforded by the statute of limitations pro visi on of the GTLA, even when that provision is strictly construed. Thus , n o reason exists to preclude application of Rule 15.03 to governmental entities. . . .
Id. at 860. (emphasis added). We also note that the plaintiffs in Doylecertain ly added a

new cla im against that new defendant as there was no pending c laim against that defendant until the complaint
was amended . Accor

dingly, to t

he exten t, if at all, the stat

u te of limitat ions was the basis for the Trial Court’s granting of Defendants’ Motion to Dismiss, we hold the Trial Court erred

in finding that Plaintiff ’s Amended Complaint

failed to state a c laim upon w

hich rel ief can be grant ed beca use Plai nti ff’s amendment related back under Tenn. R. Civ. P. 15.03 to the filing date of the original Complaint.
Now that we have determined the statute of limitations does not preclude Plaintiff’s claims in the Amended Complaint against the City, we will examine the GTLA to determine whether the A mended C omplaint otherwise failed to state a claim upon which relief can be granted. As discussed, the on ly claims remaining after both amendments are Plaintiff’s claims of assault and battery and fals e imprison

ment/fal se arre st. On appeal, Plaintiff contends the TrialCourt err ed in dismissing these claims be cause t he GTLA removes the immunity of governmental entities for negligent conduct and that the Amended Complaint states a claim of negligence.

As discussed, the GTLA statutory provision, Tenn. Code Ann. § 29-20-205, provides that a governmental entity’s immunity from a tort claim is removed for an injury proximately caused by the negligent act

or omission of its empl oyee with in the sco pe of emp loyment. T

he statute also sets forth a n

umber of claims for which the gover nmental e

ntity’s immu

nity is not

removed, including certain intentiona

l torts, pr oviding, in

pertine nt part, a s follows: Immunity from suit of all governmental entities is removed for injury proximately caused by a negligent act or omission of any employee within the scope of his emp loyment except if the injury arises out of:

. . . (2) f

alse imprisonment pursuant to a mittimus from a court , false arrest, malicious prosecution, inten tional trespass, abuse of process , libel, slander, dec eit, i nterfe rence with contra

ct rights, infliction of mental anguish, invasion of right of pri vac y, or civi l rights. . . . Tenn. Code Ann. § 29-20-205(2).-8- Tenn. Code Ann. § 29-20-2 05(2) cl early provi des that governmental entities are immune from suit for injuries arising out of false imprisonment and false arrest. Accordingly, we hold the Trial Court correctly dismissed Plaintiff’s claim against the City for f a lse imprisonme

nt/false arrest becau se this por tion of the Amended

Complaint f

ailed to st ate a cl aim upon which relief can be granted.

Plaintiff’s remaining claim for assault and battery, how ever, w arrants further discussion. Our Supreme Court recently addressed the applica tion of Tenn. Code Ann. § 29-2 0- 205(2) to a claim for assault and battery. Limbaugh v. Coffee M ed. Ctr. , 59 S.W.3d 73, 84 (Tenn. 2001). In Limbaugh , one of the patients of the defendant, a municipal nursing home, was assaulted by one of the defendant’s employees. Applying Tenn. Code Ann. § 29-20-205, the Limbaugh Court first found the defendant nursing home was negligent in failing to take reasona ble p rec autions to protect the patient from the employee whohad a history of being physically aggressive. Id. at 81. Having found the defendant negligent, the Limbaugh Court held the defendant nursing ho me was potentia lly subject to liability under Tenn. Code Ann. § 29-20-20 5 becau se the sta tuteremoved

its immunity for such negligent acts or omissions. Id.

The Limbaugh Courtwent on to determine whether the defendant nursing home was neverth eless immune fromliability under Tenn. Code Ann. § 29-20-205(2) since the claim was for injuries arising out of an intentional tort, assault and battery. Id. Recogniz ing the GT

LA is in derogation of the common law, and thus, must be strictly construed, the Limb augh Court h eld, in pertine nt part, a s follows:
The Genera

l Asse m bly expressly created [§] 29-20-205 to remove governmental immunity for injuries proximately caused by negligent acts; that it wa

nted then to crea te sever al exce ptions to t his general waiver convinces us that additional exceptions are not to be implied absent legislative intent to the contrary. . . . Accordingly, we hold that [§] 29-20-205 of the GTL A removes immunityfor injur

ies proximately ca

used by the neg ligent act or omission of a governmental employee except when the injury arises outof the only those

specifie d torts enu

merated in subsection (2) . To immunize all

inten tio nal torts would result in an overly broad interpretation of the statute, and there is no indication that the legislature intended such a result. . . .4 Ou r Sup rem e Co urt, in Limbau gh v. Co ffee Med . Ctr. , overruled its prior decis ion of Potte r v. Cit y of Chat t anooga, 556 S.W.2d 543 ( Tenn. 1977), in whic h it held t hat a governmenta l ent it y is immune from a cl aim for
assau lt and battery

. Id. at 81. The Courtin Limbaugh characterized the Potter deci sion as an “ overbroa d appli cati on of the int en ti ona l tort exception . . .” and stated that because of Potter , cour ts have “er roneousl y . . . hel d that the i nt en t i on al t or t ex ce pt i on pr es er ve s i mmun i t y f ori nj ur i es ar i s i ng f

ro m all inten tiona l torts. Id. at 83. -9- Id

. 4 The Limbaugh Court held that bec ause

assault and battery was not included in Tenn. Code Ann. § 29-20-205(2), that

statute’s exception for certain intentional torts to the waiver of gover nmental immunitydid not app ly to claims for injuries arising out of assault and battery. Id. The Limbaugh Courtheld the defendant

nursing ho me was no t immune fr om plaintif

f’s claimfor assault and battery under the exceptionto the removal of immunity for governmental entities provided by Tenn. Code Ann. § 29-20-205(2). Limbaugh v. Coffee M ed. Ctr. , 59 S.W.3d at 84. The court went on, however, to determine whether the defendant nursing home wa s nevertheless immune from liability under the “discretionary function” exception provided byTenn. Code Ann. § 29-20-205(1). Id. at 84-86. The Limbaugh Court held that under the proof contained in the record on appeal, this exception did not provide immunity from liability for the defendant nursing home. Id. at 86.

In this m atter, the technical record shows Plaintiff, in the Amended Complaint , all egednegligent conduct on the part of George as to her a ssault and battery claim. U nde r Limbaugh , this allegation of negligence of an employee of the governmental entity, the City, triggers the removal of immunity for the City under Tenn. Code Ann. § 29-20-205. See id. at 81. In addition, because

subsecti on 2 of the

statute do es not inc lude assa ult and ba

tt ery in the

lis t of enumerated intentional torts, the City is not immune fromPlaintiff ’s neglig ence cl aim

for injuries arising out of assault and battery. See id. at 84. We, however, express no opinion regarding the applicability of the “ discretionary function” excepti on to the removal of governmental immunity provided by Tenn. Code Ann. § 29- 20-205(1), to this matteras that question cannot be answered based upon the record now before us. That issue is best first addressed and specifically answered by the Trial Court.

In light of the Limbaugh decision, therefore, we hold the Amended Complaint states a claim upon which relief can be granted under the GTLA since it alleges negligence by an employee of the City and alleges a claim for injuries arising out of the alleged negligent assault and battery. As a result, we hold

Defendants’ Tenn. R. Civ. P. 12.02(6) Motion to Dismiss should not have been grantedas to Plaintiff’s negligence claim against the City for injuries arising out of the alle ged assault and battery, and we, therefore , vacate this portion of the Order of Dismissal.
Conclusion
The judgment of the Trial Court dismis sing Plaintiff’s c laims ag ainst the d efenda nt, Phil Keith, and Plaintiff’s claim for false imprisonment/false arrest ag ainst the defendant, theCity of Knoxville is affirmed. The judgment of the Trial Court dismissing Plaintiff’s neglig ence cl aim agains tthe City

of Knoxville

for injur ies arisin g out of the alleged assault and battery is vacated.-10-

This caus e is remanded to the Trial Court for such further proc eedings as may be required, if

an y, consistent withthis Opinion and for collection of the costs below. The costs on appeal are assessed equally ag ainst the Appellant, Christina Fortenberry , and her surety , and the Appellee, City of Knoxville.

___________________________________ D. MICHAEL SWINEY, JUDGE