IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

September 10, 2013 Session

TERESA POWELL HUDSON, INDIVIDUALLY AND AS SURVIVING

SPOUSE AND EXECUTRIX OF THE ESTATE OF ROBERT MELVIN

HUDSON, DECEASED V. TOWN OF JASPER

Appeal from the Circuit Court for Marion County

No. 17942 Buddy D. Perry, Judge

No. M2013-00620-COA-R9-CV - Filed October 22, 2013

This is a wrongful death action against the Town of Jasper. The surviving spouse of the

decedent, who died of complications resulting from a myocardial infarction, alleges that the

town was negligent and negligent per se by failing to register its three automated external

defibrillators with the emergency communications district dispatch as required by Tennessee

Code Annotated § 68-140-703 and thatsuch negligence contributed to the decedent’sinjuries

and death. The town filed a Rule 12.02(6) motion to dismiss for failure to state a claim upon

which relief can be granted on the basis the statute did not create a private right of action; the

trial court denied the motion to dismiss but granted a Tenn. R. App. P. 9 interlocutory appeal.

We have determined there is no express language creating a private right of action in the

statute, and, looking to the statutory structure and legislative history of the statute, we have

also determined the legislature did not intend to create a private right of action by

implication. Therefore, we reverse and remand with instructions to grant the motion to

dismiss the complaint for failure to state a claim upon which relief can be granted and enter

judgment accordingly.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court

Reversed and Remanded

FRANK G. CLEMENT,JR., J., delivered the opinion of the Court, in which ANDY D. BENNETT

and RICHARD H. DINKINS, J.J., joined.

Ronald D. Wells and Stacy Lynn Archer, Chattanooga, Tennessee, for the appellant, Town

of Jasper.
Jennifer H. Lawrence and David H. Lawrence, Chattanooga, Tennessee, for the appellee,

Teresa Powell Hudson, Individually and as Surviving Spouse and Executrix of the Estate of

Robert Melvin Hudson, Deceased.

OPINION

Robert Hudson (“Mr. Hudson”), who served on the Marion County Board of

Commissioners, was attending a board meeting on June 25, 2007, in a municipal building

within the city limits of the Town of Jasper when he suffered an apparent heart attack. Fellow

commissioners immediately called 911 for an ambulance to be dispatched and began

administering CPR; moments later they decided to drive him in one of their vehicles to the

nearest medical facility. Mr. Hudson remained in the hospital until June 30, 2007, when he

was pronounced dead of complications resulting from a myocardial infarction.

On June 18, 2008, Teresa Powell Hudson (“Plaintiff”), individually and as the

surviving spouse of Mr. Hudson, timely filed this wrongful death action against the Town

of Jasper. Plaintiff contends the town was negligent and negligent per se by failing to register

its three automated external defibrillators (“AEDs”) with the emergency communications

district dispatch as required by Tennessee Code Annotated § 68-140-703 (2008) and that

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such negligence contributed to her husband’s death. Stated another way, she contends her

husband would have survived if the AEDs, one of which was placed on each of the town’s

fire trucks, had been registered with the Marion County 911 operator in order to promptly

dispatch the nearest fire truck.

For purposes of this appeal, it is undisputed that the Town of Jasper owned and

controlled the town’s volunteer fire department, the fire department acquired three AEDs in

the months preceding Mr. Hudson’s heart attack, Mr. Hudson was within the city limits of

Jasper when and where he suffered the heart attack, and one of the AED equipped fire trucks

was less than one mile from Hr. Hudson’s location. Moreover, Jasper admits in its Answer

that “the Town of Jasper has not registered the AED,” and, therefore, it is undisputed that

none of the AEDs were registered as required by Tennessee Code Annotated § 68-140-703.

After filing an Answer denying any liability or duty and taking discovery, the Town

of Jasper filed a motion to dismiss for failure to state a claim, as well as an alternate motion

for summary judgment. The evidence relied upon by both parties established that a

disagreement had arisen among town officials concerning the acquisition of the AEDs by the

town’s volunteer fire department and whether the volunteer fire department should provide

The statute was codified at Tennessee Code Annotated § 68-140-703 when this action was filed. 1

In 2011, it was transferred, and it now appears in Tennessee Code Annotated § 68-140-403. 

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first responder emergency services. By letter dated December 12, 2006, the Fire Chief

notified the Sheriff’s department, which handles emergency dispatch duties for Marion

County and its municipalities, to inform the 911 dispatchers that the Jasper fire department

had acquired three AEDs and was willing to provide first responder emergency services.

Upon learning of the Fire Chief’s action, the Board of the Mayor and Aldermen of Jasper

(“Board”) sent a letter on December 20, 2006, to the Fire Chief objecting to the fire

department providing first responder services because of potential liability issues. On or

before December 29, 2006, the Board also learned the town did not have liability coverage

for acts or omissions as a first responder.

In March 2007, the Town of Jasper obtained insurance that included coverage for first

responder liability; nevertheless, pursuant to a decision made in August 2007, the Board

refused to authorize the fire department to serve as a first responder. For the foregoing

reasons, the AEDs were never registered.

Following a hearing on the motions, the trial court denied the motion to dismiss

finding that the statute created a private cause of action and denied summary judgment

finding there were genuine issues of material fact. After denying both motions, the Town of

Jasper filed a Motion for Interlocutory Appeal. The trial court granted the right to this

interlocutory appeal pursuant to Tenn. R. App. P. 9, and this court granted the interlocutory

appeal.

In this appeal, the Town of Jasper contends that Tennessee Code Annotated § 68-140-

703 does not create a private right of action for failure to register AEDs, and, therefore, the

trial court erred by denying its Tenn. R. Civ. P. 12.02(6) motion to dismiss for failure to state

a claim upon which relief can be granted. It also contends the trial court erred in denying its

motion for summary judgment because, inter alia, it was immune from liability or at least

shielded by the public duty doctrine.

ANALYSIS

A. MOTION TO DISMISS

The purpose of a Tenn. R. Civ. P. 12.02(6) motion to dismiss is to determine whether

the pleadings state a claim upon which relief can be granted. A Rule 12 motion only

challenges the legal sufficiency of the complaint; it does not challenge the strength of the

plaintiff’s proof. Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A.,

986 S.W.2d 550, 554 (Tenn. 1999). In reviewing a motion to dismiss, we must liberally

construe the complaint, presuming all factual allegations to be true and giving the plaintiff

the benefit of all reasonable inferences. Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d

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691, 696 (Tenn. 2002) (citing Pursell v. First Am. Nat’l Bank, 937 S.W.2d 838, 840 (Tenn.

1996)). Thus, a complaint should not be dismissed for failure 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. Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn. 1999) (citing Riggs v. Burson,

941 S.W.2d 44, 47 (Tenn. 1997)). Making such a determination is a question of law. Our

review of a trial court’s determinations on issues of law is de novo, with no presumption of

correctness. Id. (citing Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997)).

B. PRIVATE RIGHT OF ACTION

Whether Tennessee Code Annotated § 68-140-703 creates a private right of action for

failure to register AEDs is a matter of first impression, and we recognize that a plaintiff who

asserts that a statute creates a private right of action has the burden to establish that a private

right of action exists. Brown v. Tennessee Title Loans, Inc., 328 S.W.3d 850, 856 (Tenn.

2010) (citing Premium Fin. Corp. of Am. v. Crump Ins. Servs. of Memphis, Inc., 978 S.W.2d

91, 93 (Tenn. 1998)).

Plaintiff asserts Tennessee Code Annotated § 68-140-703 implicitly established a right

of action because registration of AEDs is mandatory, and, in support of her assertion, she

states that the mandate to register the AEDS would be pointless if the statute did not provide

a cause of action for enforcement. The Town of Jasper contends there is no express or

implied grant of a private right of action in the statute’s legislative history or underlying

purpose. The trial court agreed with Plaintiff, finding that the legislature's change of the

wording of the statute from “encouraged to register” to “shall, within a reasonable time after

the placement of an AED, register,” creates a private right of action. The trial court further

stated that without any enforcement provision, the statute would be meaningless.

Whether a statute creates a private right of action is determined by its statutory

construction. Brown, 328 S.W.3d at 855 (citing Premium Fin., 978 S.W.2d at 93). When

analyzing statutory construction, the court must determine and implement legislative intent,

without expanding beyond the statute’s coverage. Id.; Hawks v. City of Westmoreland, 960

S.W.2d 10, 16 (Tenn. 1997). Moreover, the court may not liberally create a private right of

action where the existence of such depends on the contents of the statute. Brown, 328 S.W.3d

at 855 (citing Premium Fin., 978 S.W.2d at 93). The authority to create a private right of

action belongs to the legislature. Id.

The statute at issue reads in pertinent part:

(2) Any person or entity that acquires an AED shall, within a reasonable time

after the placement of an AED, register the existence and location of the

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defibrillator with the emergency communications district or the ambulance

dispatch center of the primary provider of emergency medical services where

the AED is to be located.

Tennessee Code Annotated § 68-140-703(2) (2008).

The doctrine of statutory construction mandates that we first look to the express

statutory language to determine whether the legislature intended to create or deny a private

right of action for failure to register AEDs. Brown, 328 S.W.3d at 855 (citing Premium Fin.,

978 S.W.2d at 93). Neither the original nor amended statute expressly creates or denies a

private right of action for failing to register an AED. Because there is no express language

creating a private right of action, we must now determine whether the legislature intended

to create one by implication. We do this by looking to the statutory structure and legislative

history. Id. (citing Premium Fin., 978 S.W.2d at 93). Important factors to examine are (1)

whether the aggrieved party is an intended beneficiary within the protection of the statute,

(2) whether the legislative intent creates or denies a private right of action, and (3) whether

implying such a remedy is consistent with the legislation’s underlying purpose. Id. (citing

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Ergon, Inc. v. Amoco Oil Co., 966 F.Supp. 577, 583–84 (W.D. Tenn. 1997); Buckner v.

Carlton, 623 S.W.2d 102, 105 (Tenn. Ct. App. 1981), superseded by statute on other

grounds, Act of May 24, 1984, ch. 972, 1984 Tenn. Pub. Acts 1026, as recognized in Lucas

v. State, 141 S.W.3d 121, 129, 137 (Tenn. Ct. App. 2004)).

Defendant concedes that Mr. Hudson, as a member of the public, was an intended

beneficiary within the protection of the statute; therefore, the first factor favors Plaintiff.

As for the second factor, the legislative history does not reveal an intent to create a

private right of action; in fact, nothing in the history supports the assertion that the legislature

intended to create a private right of action by implication. Admittedly, the legislature changed

the wording of the statute from encouraging registration to mandating registration with the

inclusion of the word shall; nevertheless, the legislature did not expressly create nor does it

appear that the legislature intended to implicitly create a private right of action for failing to

register an AED. For us to infer that the inclusion of the word “shall” evidences an intent by

These factors originally appeared in the United States Supreme Court’s opinion in Cort v. Ash, 422 2

U.S. 66 (1975), which set forth the standard for determining whether a private right of action is implicit in

a federal statute. Cort, 422 U.S. at 78. Cort also established a fourth factor concerning whether the cause of

action is traditionally relegated to state law, which is inapplicable to the interpretation of state statutes, and,

as such, is removed from the analysis. See Ergon, 966 F.Supp. 577 at 584 n.9. The first Tennessee decision

to analyze the three applicable Cort factors to determine whether a Tennessee statute implied a private right

of action was Buckner v. Carlton, 623 S.W.2d 102 (Tenn. Ct. App. 1981). 

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the legislature to create a private right of action by implication would constitute a liberal

interpretation of the statute, and we are not permitted to do such. See Premium Fin. Corp.,

978 S.W.2d at 93 (citing Hogan v. McDaniel, 319 S.W.2d 221, 223 (Tenn. 1958)).

It is also appropriate that we adhere to the statutory construction doctrine of in pari

materia to determine whether the second factor favors Plaintiff’s contention. Statutes “in pari

materia” - those relating to the same subject or having a common purpose - are to be

construed together, and the construction of one such statute, if doubtful, may be aided by

considering the words and legislative intent indicated by the language of another statute.

Berry’s Chapel Util., Inc. v. Tennessee Regulatory Auth., M2011-02116-COAR12CV, 2012

WL 6697288, at *3 (Tenn. Ct. App. Dec. 21, 2012) (citing Wilson v. Johnson Cnty., 879

S.W.2d 809 (Tenn. 1994)). Tennessee Code Annotated § 68-140-704, the section that

immediately follows that upon which Plaintiff’s contentions rely, appears to be in conflict

with Plaintiff’s argument. Section 704 states, “in order for an entity to use or allow the use

of an automated external defibrillator,” the entity must first establish a program for the use

of the AEDs that includes a written plan complying with subdivisions (2)-(6) of Tennessee

Code Annotated § 68-140-704 and rules adopted by the department of health. Thus,

Tennessee Code Annotated § 68-140-704 makes it clear that the mere acquisition of an AED

did not authorize the Town of Jasper to use or allow the use of its AEDs; to the contrary,

additional steps were mandated prior to such use of an AED.

The third factor to consider is whether inferring a private right of action is consistent

with the legislation’s underlying purpose. The stated purpose of the statute is to increase the

availability of AEDs in order to hopefully minimize the number of deaths from sudden

cardiac arrest. Tenn. Gen. Assemb., H.B. 2970, 100th Gen. Assemb., Reg. Sess. (Tenn.

1998). A private right of action would not directly conflict with the stated purpose of the

statute; however, the creation of a private right of action against entities that merely acquire

AEDs is not likely to encourage such entities to obtain these devices, especially small

municipalities. Thus, the creation of a private right of action against an entity that merely

acquires an AED is likely to decrease, instead of increase, the availability of AEDs, which

is contrary to the stated purpose of the statute.

We have therefore determined that Tennessee Code Annotated § 68-140-703 did not

create a private right of action nor did the statute or statutes in pari materia impose an

affirmative duty on the Town of Jasper to use or allow the use of its AEDs simply because

it acquired AEDs.

For the foregoing reasons, we have determined that Plaintiff failed to state a claim

upon which relief can be granted due to the Town of Jasper’s alleged negligence in failing

to register its AEDs. Therefore, we reverse the decision to deny the motion to dismiss and

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remand with instructions to grant the motion to dismiss the complaint for failure to state a

claim upon which relief can be granted and enter judgment accordingly.

C. MOTION FOR SUMMARY JUDGMENT

The foregoing decision renders moot the issue pertaining to the motion for summary

judgment; accordingly, it will not be addressed.

IN CONCLUSION

The judgment of the trial court is reversed, and this matter is remanded with

instructions to grant the Town of Jasper’s Tenn. R. Civ. P. 12.02(6) motion to dismiss the

complaint for failure to state a claim upon which relief can be granted and enter judgment

accordingly. Costs of appeal are assessed against Plaintiff.

______________________________

FRANK G. CLEMENT, JR., JUDGE

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