# FILED

September 5, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

________________________________________________ WILLIAM J. CHASE, JR., As Administrator C.T.A. of the Estate of BETTY LOU STIDHAM, Deceased, Plaintiff-Appellee, Vs. C.A. No. 02A01-211-CV-00327 Shelby Circuit No. 36934 T.D. THE CITY OF MEMPHIS, Defend ant-App ellant.

___________________________________________________________________________

FROM THE CIRCUIT COURT OF SHELBY COUNTY THE HONORABLE JAMES E. SWEARENGEN, JUDGE

John J. Heflin III, Bourland, Heflin, Alvarez , Holley & M inor, PLC, o f Memphis

For Plaintiff-Appellee Monice Moore Hagler, City Attorney Robert M. Fargarson, Assistant City Attorney

Martin W. Zummach For Defendant-Appellant

AFFIRMED Opinion filed:

W. FRANK CRAWFORD,

PRESIDING J

UDGE, W.S.

CONCUR: DAVID R.FARMER,

JUDGE HOLLY KIRBY L ILLARD, JU DGE This appeal i nvolves a

suit for w rongful d eath based on negligenceunder the Tennessee Governmental Tort Liability Act, T.C.A. § 29-20-1 01 et se q. (1980) a nd for wr ongful de ath basedon the creationof

a specia l relatio nship and a

nuisance . Defen dant, the City of Mem

phis,2

appealsfrom the trial court’s judgment in favor of plaintiff, William J. Chase, as Administrator C.T.A. of the Estate of Betty Lou Stidh am. The trial court, sitting without a jury, found that plaintiff’s damages totaled $1,897,713.03, and that the City’s negligence caused 40 percent of those damages. H owev er, because of the application of the Tenne ssee Governmental Tort Liability Act (hereinafter the Act), the c ourt limited plaintiff’s recovery t o $130,000.00, and

entere d a judgme

nt in that a

mount. The issues to be decided are whether the trial court erred in finding that thedefendant’s acts we re not immune from liability under the Act; and if not immune, whether the trial cour t erred in finding that the defendant’s negligence was a proximate cause of Betty Lou Stidham’s death; whether

the trial court er red in finding that th

e defendant assu

med a spe cial duty

to Ms. Sti dham to undert

ake act s that woul d have pr otected her; and finally, w

hether c laims aga

inst municipalities arising out of the creation of a nuisance are e ncompassed within the Act; and if so, whether the trial court erred in failing to grant plaintiff a recovery based on nuisance. The plaintiff also asks this Court to consider whether the doctrine of sovereign immunity should be discarded by the courts of Tennessee. I. Betty Lou S tidham died o n June 18, 1990, af ter bein g mauled t

o death by

two pit bull dogs owned by her next door neighbor, Edwin Hill. Prior to this incident, Hill had a variety of problems with the dogs. In February of 1988, the dogs attempted to attack Hill’s mother, and

on October 30, 1988, they succ eeded. Both times, city emplo yees, ei ther polic e, para

medics, or both, were called to the scene to assist. A

fter the October 1988 incid

ent, the p olice se

nt a report about the attack to the City of Memphis An

imal Shelte

r. Earl G

rouchau , who owne d Ms. Stidham’s home prio

r to selling it to

her, also had problems with Hill’s dogs. Grouchau testified that Hill’s dogs caused him to fear for his life. He built a six-foot wooden fence on his side of the propert

y after Hill’s dogs began to burrow underneath the c hain link fence. Undaunted, the dogs continued to burrow underneath the new fenc e andenter hi s yard. After the pit bull dogs chased his son, Gr

ouchau c omplaine d to the City of Memphi s Police. He c omplained to the police about the dogs at least two times between 1987 and 1989 and also f iled a co mplaint wit

h the Animal Shelter. He informed Robert Lee, the manager of the Animal Shelter, a

bout hi s3

problems with Hill’s dogs. On January 3, 1990, Hill’s dogs attacked Ms. Stidham’s small dog, which resulted in Ms. Stidham filing a “vicious animal complaint” with the Animal Shelter. As a r esult of the complaint, Hill’s dogs were impounded for evaluation. While the dogs were in the care of the city, the female dog attempted to attack an Animal

Shelter w orker, Pa

mela Topping. During the evaluation period, A

nimal Shelt

er emplo yee s perfor

med tests o n the dogs t

o evalua te their behavior and found that neither of the dogs exhibited overtly aggre ssive behavior. On January 23, 1990, a vicious animal hearing took place at the Animal Shelte r. Despit e the fact tha

t the Anima

l Shelter i s supposed

to keep re cords o f dog attacks received from the police, fire department, and hospitals, it had no record of the prior attacks by Hill’s dogs. Robert Lee, who condu cted the

hearing , did

not allow testimony to be elicited from Hill concerning the violentnature of the dogs. Lee decided that the dog s were n ot “vic ious” bas ed on the t ests performed

during the

evaluat ion perio d. Lee c oncluded that th e dogs did not show a vicious nature toward humans or

other animals and, therefore, the dogs were released to Hill. Instead, Lee determined that the dogs we re “dan gerous” because

they wer e capab le of inflicting serious injury. Lee issued a letter on January 29, 1990, which stated that the dogs were dangerous and ordered that Hill correct any fencing deficiencies around his property and that Hill enro ll himself and the dogs in a basic obedience training program within 90 days. Accor ding to the letter, Hill’s failure to do either

would result in a declaration that thedogs wer e vicious and immed

iate seizure of the dogs. The letter was sent to both Hill and Ms. Stidham. Hill’s dogs wer

e relea sed to him

on January 26, 1990. On two occasions, Animal Shelter employee s, including Lee, visited Hill’s property to inspect the fe ncing. Lee ordered that the back gate re main lock ed. Hill assured Lee that he would enroll the dogs in obedience school and would inform the Animal Shelter when the training was complete. However, Hill never enrolled the dogs in obedience school, and theAnimal Shelter never followed up their order. Although Hill didnot comply with the administrative order, the Animal Shelter did not seize the dogs or declare them vicious. The Animal Shelter did not receive any further complaints about Hill’s dogs until the day of the tragedy of Ms. Stidham’s death. The t rial court held that the defendant’s actions were not discretionary and, therefore ,4

were not immune under

the Act. The trial court held that the defendant was negligent, and that the negligence was a proximate cause of Ms. Stidham’s death. The court stated that the failure to follow-u

p on the ob edience

training a

nd the fa ilure to pi ck up the d

ogs was an ac t of negligence. The cour

t also fel t that the v

icious dog

hearing was cond

ucte d improper ly. However, the court stated that the inadequate inspection of the fence was not a prox

imate cause of the deat h. In add

ition, the c ourt r

ejected t he claim of nuisance because there was no affirmative act by the defendant. Finally, the trial court believed that the defendant assumed

a special duty to Ms. St

idham to un dertake

acts to pr

otect he r and neg ligentl y failed to take reasonable and appropriate ac tion to do so. Since this case was tried by the court sitting without a jury, we review the case de novo upon the rec ord with a

presumpt

ion of cor

rectne ss of the findings of fact by the tria

l court. Unless the evidence preponderates aga inst the finding s, we must affirm, absent error of law. T.R.A.P. 13(d). In Smith v. Bullington , 499 S.W.2d 649 (Ten n. App. 19 73), this Court noted that the revi ew by this Court of the amount of a non-jury judgment for damages was governed by then T.C.A. § 27-303, which has been supplanted by T.R.A.P. 13(d). II. This negligence action was brought pursuant to sec tion 29- 20-205 of the Act which p rovides for remo val of immu nity for in

jury cau sed by ne gligent a cts or omis s ions o f government employees. T.C.A. § 29-20-205 (1980). In order for plaintiffs to recover, the court must first determine if the city is immune from suit, and if not , the plai ntiffs mus t prove the neces sary ele ments of negligence. Bowers v. C ity of Chattanooga , 826 S.W.2d 427, 429 (Tenn. 1992). With res pect to t he threshold issue of immunity, section 29- 20-205 pr ovides in p ertinen

t part, Immunity from suit o f all gove

rnmenta l entities is removed for injury proximate

ly caused by a negligent act or omission of any employee within the scope of his employment except if the injury: (1) Arises out o f the exe rcise or perfor mance or the failu re to exerci se or perform a discretionary function, whether or not the discreti on is abuse d;

* * *5 (4) Arises out of a failure to make an inspection, or

by reason of making an

inadequa te or neg ligent insp ection of any prop erty; (5) Arises out

of the institution or prosecution of any judicial or administrative proceeding, even if malicio us or witho

ut probab le cause. T.C.A. § 29-20-205. The defenda

nt argues that their actions are included in all three c ited sub-sections of T.C.A. § 29-20-205 because the actions are discretionary, a failure to inspect or an ina dequate ins pection , and arise out of a quasi-judicial or an administrative proceeding. We have three actions of the defendant to consider: (1) the acts during the vicious dog hea ring; (2) the inspection of the fe

ncing on th

e Hill pro perty; a nd (3) th e failure to follow-up the obedience school tr aining an d the res ulting fai lure to imp ound the dogs. As a preliminary matter, we believe that the actions of Lee during the vicious dog hear ing

are immune from liability because they arise in an administrative hearing. Lee, sitting as judge, had the oppor

tunity to he ar evide

nce, ex amine wit

nesse s and hear argu ments of informed counsel and interested parties. The parties had the right to appeal his decision butneglect

ed to exe rcise this right. Even if Lee’s actions during the proceeding wer e negligent, they are immune from liability. In addition, we will no t conside r whethe r the insp ection of

the fenc e on Hill’ s proper ty properl y is immune unde r the Act because the trial court he ld that the

inspectio n was not a proximate

cause of the death. Even if we hold that the inspectio n is not immune and, therefore, could have be en neglig ent, the e vidence does not pr

eponder ate against the trial court’s finding of no proximate cause. Therefore, the only act of the defendant to consider is the decision not to follow-up and enforce the obed ience sc

hool requ irement, which the

defenda nt argue s is a discretionary act for which immunity has not been removed. In Bowers , the Tennessee Supreme Court provided guidance as to which a

ctivities fall under the discretionary function and adopted the “planning-opera tional” test. Bowers , 826 S.W.2d at 430. Under the planning-operational test, decisions that rise to the level of planning

or policy-making are considered discretionary acts which do not give r

ise to tort liability, while decisions that are

merely operational are not considered discretionary a cts and, therefore, do not6

give rise to immunity. Id. The Supreme Court outlined the analysis a cour t must follow to determine if a de cision fa lls under the discr etionar y functio n excep tion: Und ert he planning-operational test, discretionary function immunitydoes not au tomati cally attach to all acts involving choice or judgment. Such an analys is recog nizes tha t, to some extent, every a

ct involve s d iscr etion. Rather, the underlying policy of governmental immunity is better served by examining (1) the decision-making process and (2) the propriety of judicial review of the resulting decision. A consider

ati on of the decision-making process, as well as the fact ors in fluencing a particular decision, will often revea l whether that decision is to be viewed as plann ing or o perational. If a particular course of conduct i s determined after consideration or debate by an individual or group c harged with the formulation of plan s or policies, it strongly suggests the result is a planning decision . These d

ecisions often re sult from a ssessing p rioritie s; allocating resources; developing policies; or estab lishing pla ns, specifications, or schedules. On the other hand, a decision r esulting from a determination basedon preexisting laws, re gulations , policie s, or stan dards, usually indicates that

its maker is performing an opera tional ac t. Similarly operati onal are

those ad hoc decis ions ma de by a n individual or group n ot charg ed with the development

of plans or policies. T hese operational acts, which often implement prior planning de cisio ns, are not "discretionary functions" within the meaning of the Tennessee Government al Tort Liability Act. In other words, "th

e discre tio nary f unction exception [will] not apply to a claim that government employees fa i led to com

ply withregulations or policies designed to guide their actions in a particu lar situa

tion." Another factor be aring o n whether an act should be considered planning or operational is whether the de cisio n is the type properl y re vie wable by the courts. The discretionary function exc eption "recognizes that courts are ill-equipped to investigat e and bal ance the numerous factors that go into an executive o r legislative decision" and therefore al lo ws the gov ernment to operate without und

ue inter ferenc e by the c ourts. Id. at 431 (citations omitted). The defenda

nts ask us to rely upon a case decided by the Supreme Court of the State of Florida, Carter v. C

ity of Stuar

t , 468 So.2d 955 (F la. 1985). In Carter , the Flori da Supre me Courtwas faced with a similar issue as in the case sub judice . In that case, the City of Stuart was sued after a dog attacked and seriously injured a child. The plaintiff claimed that the city was negligent because it failed to enforce its ordinance requiring impoundment of dangerous dogs. The plaintiff also alleged that the city should have impounded the dog after prior incidents of biting. Id. at

956. The Florida Supreme Court, applying the planning-operational test adopted7

by Tenness ee in Bowers , held that the city w as immune b ecause the deci sion not to

enforce the ordinance and impound the dog was discretionary. Id. at 957. The Court stated the rationale as follows: A governme nt must hav e the fle

xibility to s et enforc ement priorities on its polic e power ordinanc es in line with its budgetary constra ints. Without the abi lity to make such choice s a government

must either

pay the high cost of total enforcement or forego the exercise of its police power. Neither option serve s the public inte

rest. Deciding w hich l aws are proper a nd should b e enact

ed is a legisla tive fu nction. How and in what manner those laws are enforced is, in most instances, a judgmental decision of the executive branch. The judicial branch should not trespass into the decisional process of either. Id. In the case sub judice , the City of Memphis Animal Shelter was understaf fed and underfunded. The record indicates that the Shelter made the dec ision not to follow-u p its administrative order

because of budgetary and manpower restraints. The Shelter established a lower priority o f enfor

cing this p articula

r order . Alt

hough the results are unfortunate for the plaintiff, this is the type of decision that was protected in Carter by the Florid a Supreme

Court. We are impressed with the reasoning of the Florida Supreme Court. Our Supreme Court a lso recognized

the need to balance priorities and allocate re sources. Bowers , 826 S.W.2d at 431. Decisions that include the allocation of limited resources among competing needs do not need interference

from the courts, absent clear guidance from the legislature to the c ontrary. Helton

v. Knox County , 922 S.W.2d 877, 887 (Tenn. 1996). Accordingly, we find that the city performed

a discretionary function for which it is immune. T.C.A. § 29-20-205(1). However, this finding cannot end our inquiry. III. The trial court al so decide d that the defenda nts assume d a speci al dutyto the dec edent, Ms. Stidham, to unde rtake actions to protect her from Hill’s dogs. The plaintiffs characte rize the Animal Shelter’ s letter and administrative order as a promise to Ms. Stidham that went unfulfilled. The defendant argues that the duty owed by the City of Memphis was to the public, notto a specific individual. The defendant claims that the danger posed by the dogs was to the8

public at large, and that the ordinanc es in place governing vicious animals were enacte d for the general welfare. As stated above, the issue to be dec ided is whether the defendant assumed a special duty to the plaintiff. In Ezell v. Co ckrell , 902 S.W.2d 394, 400 (Tenn. 1995), the Tennessee Supreme Court decided that the Act did not a

bolish the commo n law public duty doctrine. Th e Supreme

Court said, “[W] e are not pe rsu ade d th at th e Ten nes see Gove rnm ental Tort Li abil ity Act, which act

ually reiter

ates and ext

ends the rule of gover nmental immu nity, abolished, or w

as i nt ende d t o ab olis h, t he lo ngs

ta ndin g co mm on-law public duty doctrine. ” Id. The public duty doctrine originated at common-law and

shields a public employee from suits for injuries that are caused by the public employee's bre ach of a duty owed

to the publ

ic at large. Id. at 397. A private citizen cannot maintain an action complaining of the wrongful acts of public officials unless such private citizen ave rs special interest or a special injury not

common to the public generally. Id. (quoting Bennett v. Stutts , 521 S. W.2d 5 75, 576 (Tenn. 1976)). If

the public e mployee’ s duty is to th e public, then the m

unicipality canno t be held liable. However, if tha

t em ployee assumes a special relationship with an individual, the municipa lity can be found liable for that employee’s negligent acts. Ezell, 902 S.W.2d at 401. The Supreme Court stated,

States adhering to the public duty doctrine, including Tennessee, have recogni zed an e

xception to the rule

of n o-liability that applies where a "special relationship" exists between the plaintiff and the public

employee , which gi ves rise to a "special duty" that is more particular than

t he duty owed by the employee to the public at large.

* * * Having decided that the public duty doctrine is viable, we consider it both desirable and necessary to retain, and furthe r re fine, the "special-duty" exception. After considering the various formulations of the doc trine, we conclude that a special duty of care

exists whe

n 1) offi cials, by

th eir ac tions, affirma tivelyundertake to protect the plaintiff, and the plaintiff relies upon the undertaking; 2) a statute specifically provides for a cause of action against an official or munici pality f or injuries resulting to a part

icular c lass of individ

uals, of which the plaintiff is a member, fro m failu re to enforce certain laws; or 3) the plaintiff alleges a caus e of action involving intent, malice, or9 reckless misconduct. Id. at 401-02. In the case sub judice , the only a pplicabl e sp ecial du

ty would be

when off

icials affirma tively und

ertake to protect a plaintiff. There is no special statute; the plaintiff does not allege intentor malice; and the record does not show reckle ss misconduct. The plaintiff s ask us to follow

a case from the State of Washington, Champagne v . Spokane Hum

ane Socie ty , 737 P.2d 1279 (Wash. App. 1987). In Champagne , a neighb or’s pit bu ll dog brut

ally attacked the Cha mpagne ’s child. The Huma ne Societ y had pre viously re ceived n

umerous c omplaints concerning these pit bull dogs, including a t le ast ten fr

om M s. Champagne. Id. at 1281. The Humane Society told Ms. Champagne that they would patrol the area and apprehend any stray dogs. Unfortunately, the dogs were not apprehended until the day after the attack. Id. at 1282. The Champagnes argued that the special duty excep tion to the public duty doctrine was applica ble to their case. Id. In this ap peal o f a grant of

summary judgment to defendant, the court held that there we re suff icient fa cts alleg ed to esta

blish eac h elemen t of the sp ec ial duty exception and reversed and rema nded the case. Id. at 1284. The C hampagne case is similar to the case at bar. In the case sub judice , the City o f Memphis Animal Shelter sent Ms. Stidham a letter that informed her that the f encing w ould

be corrected and that the dogs would be trained at obedience school. Ms. Stidham was informed that if Hill did not com

ply with the order, the dogs would be impounded. Because she made no further complain

ts, the tri al court

appare ntly found , infere

ntially, th at she re

lied upon t

his

assurance. We believe that the Animal Shelter “affirmatively under [took] to protect the p l aintiff” and the “plaintiff relie[d] upon the undertaking.” See Ezell , 902 S.W.2d at 402. Obviously

the neighborhood and the public at large would have also benef ited from the Shelter’s actions for Ms. Stidham. However, this does not mean that the defenda nt did not assume a special duty to her. We hold that the defendant, City of Memphis, thro ugh the actions of the Animal She

lter, ass umed a special duty to Ms. Stidha

m. However, the plaintiff

must still sho w a brea

ch of tha t specia l duty and p

roximate cause of the injury. See Haynes v. Hamilton C ounty , 883 S.W.2 d 606, 611 (Tenn. 199 4). Obviously this duty was breached because the Animal Shelter did not follow-up on the a ssurances to Ms.10

Stidham. The defendant argues, however, that their actions w ere not t

he proximate cau ses of Ms. Stidham’s death, but insteadthat t he criminal conduct and the gross negligence of Hill were the independent

intervening proximate cau ses of t he death . The def endant a lso argue s that Ms. Stidham assumed a known risk and was the proximate cause of her own injury and death. The evidence does not prepond erat e agains t the tria l court’sfinding th at the fa ilure to follow-u p the obed

ience tr aining requireme

nt and to imp ound the dogs was a proximate

cause of Ms. Stidham ’s death . The Ten nessee Su preme Cou

rt has outlined a

th ree-prong test for proximate cause:

(1) the tortfeasor’s conduct must have been a “substantial factor” in bringing about the harm being complained of; and (2) there is no ruleor policy

that shoul d relieve

the wron gdoer fr

om liability because of the manner in whichthe negligence has resulted in the harm; and ( 3) the harm giving rise to the action could have reasona bly been foreseen or anticipated by a pe rson of ordi nary intelligence and prudence. Haynes , 883 S.W.2d at 612. If the Shelter had impounded the dogs likethe administrative order required, then the d

ogs would

not have beenpresent to attack Ms. Stidham. Obviously this was

a substantial factor in bringing about the harm. In addition, an attack by the dogs and the resulting injury were reasonably foresee able because of the complaints received by the Shelter concerning Hill’s dogs. We believe that there is no merit to the defendant’s argument that Ms. Stidham

assumed a

known ris k

by walking to the sidewalk to get her mail. The evidence does not preponderate against the trial court’s finding on this issue. F rom th e record, we find that defendant owed a

special duty to Ms. Stidham, that this duty was breached, and the breach of this duty was the proximate cause of Ms. Stidham’s death. The trial court was correct in the judgment for the plaintiff. IV. The plaintiff has also presented the issue of whether claims against municipalities arising outof the creation of a nuisance are encompassed within the Ac t. We have held on previous occasions that

a claim of nuisance is covered by the Act. In Collier v. Memphis Light, Gas & WaterDivision , 657 S.W.2d 771, 776 (Tenn. App. 1983), this Court stated, “The legislature left littleif any ro om for dou bt that ac tio ns agains t g overnmental entities for damages based on11

activities historically labeled ‘nuisance’ are now included in a nd cove red by the Act.” In that

case, we distinguished some of the case s that the p laintiff now relie s upon to ho ld otherwise. Id. We believe that the Tennessee Supreme Court case, Paduch v. City of Johns on City , 896 S.W.2d 767 (Tenn. 1995), speaks on this issue. The Supreme Court stated, “[A ]n ac tion for damages resulting from the creation or maintenance of a te mporary nuisance by a governmental agenc y may be allowed under the act.” Id. at 772. We hold again today that an action for nuisance is cover ed by the A

ct. In the case sub judice , even if a claim for nui san ce was not covered by the Act, we belie ve that the tr

ial court was correct in its decision that there was no act that constituted the creation of a nuisance by the defendant. The evide nc e does not preponderate against the trial court’s findings on the issue of the creation of a nuisance. Finally, the plai nti ff asks this Court to consider whether the doctrine of sovereign immunityshould be d

iscarde d by the co

urts of Tennessee. In Austin v. City of Memphis , 684 S.W.2d 624 (T enn. App. 1984), this Court, in considering the abolishment of sovereign immunity, said:

[P]laintiffs urge this court to change [the law of g overnmental immunity] by virtu e of ju dicial de cree. W e decline this invitation. As pointed

out by Judg e Todd in Jones v. L & N Railroad Co. , 617 S.W.2d 164 (Tenn. App. 1981): The rule o f soverei gn immunity i n Tennes see is bothconstitutional and statutory. It is not within the power of the courts to amend it. Id. at 170. Austin , 684 S.W.2d at 637; see also City of Lavergne v. Southern Silver, Inc. , 872 S.W.2d 687, 689 (Tenn. App. 1993). V. Accordingly, the judgment of the trial court is affirmed. Costs of this appeal are assessed against the appellant.

_________________________________ W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S. CONCUR:12

_________________________________ DAVID R.FARMER,

JUDGE

_________________________________ HOLLY KIRBY L ILLARD, JU DGE