### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE July 2, 2003 Session
ANGEL A KAMI LLE DR APER, as parent , survivo r and next frien d of BRYANNA FAITH DRAPER , deceased, v. STAT E OF TENNESSEE

Direct Appeal from the Tennessee Claims Com mission No. 20200993 Hon. Vance Cheek, Commissioner

FILED SEPTEMBER 4, 2003
No. E2002-02722-COA-R3-CV

In a ction agains t the State of Tennessee and a state employ ee, the Commissioner held he had no jurisdict ion of the claims. O n appea

l, we aff irm.

Tenn. R. App.P.3 Appe al as of Right ; Judgme nt of the Cla

ims Com mission A ffirmed.

H ERSCHEL P ICKENS F RANKS , J. delivered the opini on of the c ourt, in which H OUSTON M. G ODDARD , P.J., and C HARLES D. S USANO , J R ., J., joined.
Paul R. Wohlf

ord, and Kenneth D. Hale, Bristol, Tenness ee, for Appellan t.
Paul G

. Summe

rs, Attorney Ge

neral and Reporter, Michael E. Moore, Solicitor Gener al, and Heather C. Ross, Senior Counsel, Nashville, Tennessee, for Appellee.

OPINION

Plaintiff, Angela Draper, pare nt and next friend of decedent, Bry anna Faith Draper, filed a claim against Diane Stanley and the Tennessee Department of Children’s Servic es by lodging a claim with the State Division of Claims Administration. The claim was then transferred to the Claims Commission.

Plai nt iff’s claim alleges she filed a Complaint in Sullivan County Circuit Court agains t Blue Ridge Radiology Associa tes, P.C., Holston Valley Regional Medic al Center, and others , for the wrongful death of her child, and th at th e d ef

en da nt s a ns we re d a nd al le ge d t ha t D ia ne St an le y,-2-

an employee of the

T ennessee D epartme

nt of Childr

en’s Ser vices, w as assig ned to inve stigate suspected abuse of the child and that she failed to protect the c hild.
The state moved to D ismiss on the ground s that the s tate was the only proper p arty before the Claims Commission. Respondin g to the m otion, The

Commissione

r found th ere wa s a lac k of subje ct matter

jurisdict ion beca use the c ause of a

ction fell outside t

he scope of author ity vested in the Claims Commission pursuant to Tenn. Code Ann. §9-8-307. He also d ismissed Ms

. Stanley and DCS as parties, stating that purs uant to Te nn. Code A

nn. §9-8- 307(a)( 1), only

the state can be su ed in the Cl aims Commiss ion. Plaint iff has a ppealed these rulings.
In this case, the Commission determine d that it lacked subj ect matter jurisdiction over the claim presented. As the Supreme Court has recently explained:
A motion to dismiss for lack of subject matter jurisdiction falls under Tennessee Rule of Civil Procedure 12.02(1). The concept of subject matter jurisdict ion involve s a court 's lawful a

uthority to adjudic ate a contro versy brought before it. Subject matter jurisdiction involves the nature o f the ca use of action and the relief sought, and ca n only be conferred on a court by constitutional or legislative act. Since a determination of whether subject matter jurisdiction exists is a question of law, our standard of review is de novo, without a presumption of correctness.
Northland I

ns. Co. v. S

tate , 33 S.W.3d 727, 729 (Tenn. 2000).
As the Court discussed in Stewart v. State , 33 S.W.3d 785 (Tenn. 2000), in 1984 the legislature enacted Tenn. Code Ann. §9-8-307, which waived the state’s soverei gn immu nity in certain limited situations and created the Tennessee Claims Commission. The Court explained that the legislative history be hind the enactment showed that the legislature g ranted the Claim s Commission exclusive jurisdiction to hear claims against the state, and want ed to enc ourag e people to bring claims against the state in the Commissionrather than in court. Id . The Commission has “exclusive jurisdict

ion” over monetar y c laims ag ainst the s tate bas ed on the a cts or omis sions of sta

te employees falling within certain categorie s. If the claim falls outside the cate gories specified, “then the state retains its immunity from suit, and a claimant may not seek relief from the state.” Id . at 790; Tenn. Code Ann. §9-8- 307(a )(1). The statute expresses that “I t is the intent of the general assembly that the jurisdiction of the claims commission be liberall y construed to implement the remedial purposes of this legislation.” Tenn. Code Ann. §9-8-307(a)(3) . The Cou rt rec ognized, “alth ough we have

tradition ally

given a strict co nstructio n to the sc ope of the Commissi o n’s jurisdiction, we also recognize that our primary goal in interpreting statutes is ‘to ascertain and give effect to the intention and purpose of the legislature.’” Stewart at 791. Thus the Court determined that when deciding whether the Commissi on has jur

isdiction t

o hear a claim under the statute, the courts must give a liberal construction in favor of jurisdiction “but only so long as (1) the particular grant of jurisdiction is ambiguous and admits of several constructions, and (2) the ‘most fav orable view in support of the petitioner’s claim’ is not clearly contrary to the statutory lang

uage used by

the General Assembly .” Id

.-3- Plaintiff contends that

the Commission had jurisdiction pursuant to Tenn. Code Ann. §9-8-307(a)(1)(E), which states that the Commission has exclusive jurisdict ion to determine a clai m agains tthe state based on the acts or omissions of a state employee f

or the “negligent car

e, custody and control of persons.” She further argues that the state should be held a ccountable for

its failure to remove the child from the home where she was being abused and

pl ac e t he ch il d i n s ta te cu st od y, because the state has duty to protect abused children under the statutory scheme.
She cites Stewart as supporting her position. In Stewart , the Court interpreted Tenn. Code Ann . §9-8-307, and dete rmined wh

ether there had

to be car e, custod y, a nd contro l for this section to app ly. In Stewart , the Cour t found tha

t jurisdic tion could

be asser ted under the sect ion if a state trooper “had a legal duty to control local police authorities at an arrest scene – irrespective of whether he had actual care and custody ov er the de puti es – and if he was negligent in the fulfillmentof that duty.” Id . at 792. The Court also stated “it is difficult to conceive that the legislature intended to deny jurisdict ion i n cases w

here ne glige

nt contro l of a per son by a state employee resulted in injur y, even

though the injured person was not actually within the care or custody of the state employe e.” Id . Plaintiff continue s that sinc e DCS had a duty to remove Bry anna from her home where she was being abused, but

neglected to do so , then the state shouldbe liable for negligently

failing to take Bry anna into state care and/or custody

. We cannot agree. First, pl aintiff’ s interpr etation o f the stat

ute does not c omport wit

h the language adopted by

the Legislature. While pl ai ntiff relies upon t he constr uction util

ized in Stewart , the Stewart Court concentrated mainly on the issue of whether there could be state control of a person without that person actually being the care and custody of the state. But the Court said, if the state trooper in Stewart had a legal

duty to control the

deputies at the sc ene, or i f he volun tarily assumed such a duty, and wa s negligent in the exercise of that control of per sons, then the state could be liable (but the cou

rt ultimate

ly f ound that n o su ch duty existed.). Id . There is no simila

rity between this limited factual scenario which the Stewart Court ente rta ined and t

his case , becau se there has been no sho wing of control, or care, or custody of any per son that was exercised ne gl ig en tl y. Fina ll y, while plaintiff argues that control, care , and custody should hav e bee n exercise d pursuan

t to the statut

es deali ng with

depende nt and neg

lected c hildren a nd DCS’ ab ility to effect a removal

in those situations, this is, in essence, an argument that thestate owe d a duty to protect Brya nna, and that by

failing to comply

with its own

statutes r egard ing chil d abuse, plaintiff now has a pri vate rig

ht of act ion for th is failur e. This argument falls within the ambit of Tenn. Code Ann. §9-8 -307(a) (1)(N) , which r eads: Negligent deprivation of

statutory rights c

reated under Tennessee law, e xcept for actions a

rising out of cla

ims over w hich the civil service commission has jurisdiction. The clai mant must pr ove unde r this subd

ivision th at th e general assembly expre ssly co nferred a private right of a ctions in favor of the claimant agains t the state

for the s tate’s vi olation of the part icular st atute’s p rovisions ;-4- We have held that an individual cannot state a cause of action based upon the deprivation of a statutory “r ight” without pointing to express language in the statute whic h confers a private right of action in the individual’s favor. See Tate v. Sta te , 2003 WL 21026939 (Tenn. Ct. App. Apr 14, 20 03); A’la v. St ate , 2002 WL

1838162 ( Tenn. Ct. A

pp. Aug . 13, 2002) ; T

a ylor v. State , 2001 WL 873470 (Tenn. Ct. App. July 31, 2001). The statutory scheme dealing with removal of abused children does not grant a private r ight of action within the statute for the state’s failure to remove. Tenn. Code Ann. §9-8-307 (a)(1)(N) doe s not confer jurisdiction for the stated claim, and neither does Tenn. Code Ann. §9-8-307 (a)(1)(E). Plaintiff is couching a claim for deprivation of statutory rights a s a claim of negligent care in an effort to avoid having to point to languag e in the statute which co nfers a

right of action. We conclude there is no basis for jurisdiction pursuant to the statute, a nd we af firm the Co mmission’s dismissing plaintiff ’s claim. Any issues regarding the statute of limitations and tolling were pretermitted by the Commission based on

its finding

that it did not have sub

ject matt er jurisd iction, a nd we pre termit addressing these issues for the same rea son.

The Commission’s Judgment is affirmed and the cause remanded with the cost of the appeal assessed to Angela Dra per.

_________________________

H ERSCHEL P ICKENS F RANKS , J.