### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Februar y 12, 2 003 Session JOHN S. DOE v. RANDALL E. PEDIGO, ET AL 

### . Appeal from the Circuit Court for Knox County

No. 2-380-95 FILED JUNE 30, 2003
No. E2002-01311-COA-R3-CV

C HARLES D. S USANO , J R ., J., concur ring in p art and d

issenting in part.

While I a

gre e wit h the bulk o f the

major ity opini on, I

write sepa rately to express my disagreement

with the majority’s judgment that ther e is a genuine issueof material fact as to whether Dr. Pedigo, “at the time of [the] occurrence [at his co ndomi nium]”was “acting by virtue of or under color of the office [of deputy sheriff].” Tenn. Code Ann. § 8-8-302 (2002).
The only material fa

ct in dispute pertaining to the Ten n. Code Ann. § 8-8-302 analy sis is whether Dr. Pedigo was a deputy

sheriff at the time of the occurrence at his condominium. For the purpose of the fo llowing d

iscussion , I wi ll assume t hat he was. Obv iously , this assumption is beneficial to the plaintiff

’s theor y of the case . Howeve

r, even a ssuming t

he best po ssible sce

nario for the plaintiff on this issue, I conclude that the undisputed facts and t his assump tion can l ead to only one reasonable conclusion, i.e. , what happened at Dr. Ped igo’s c ondominium was pure

ly persona l in nature

and total ly u nrelate d to his off

icial duti es. When Dr. Pe digo and the plaintiff went to the doctor’s condominium, they w ere not going there on any offic ial business related to Dr. Pedigo’s assumed status as a deputy sheriff. They

were going there to

“pass the time” as they

awaited a possible

call to respond to a crime scene. While they were there, Dr. Pedigo sugge sted that he inject the plaintiff wi th a Hepa ti tis B vaccine and the plaintiff agreed. I t is obvious beyond any

doubt that the plaintiff agreed to the injection not beca use Dr. Pedigo was a deputy

sheriff but rather

because he was a medical doctor. Ag ain, I find no nexus betweenwhat happened at the condominium and Dr. Pedigo’s assumed position as a deputy she

riff.
In my ju dgment, the opinio n of this Court in the case of J.W. ex re l. Watts v. M aury County , No. M2001-02768-COA-R3-CV, 2003 WL 1018138 (Tenn. Ct. App. M.S., filed March 11, 2003), perm. app. filed

May 12, 2 003, and the instant case can be distinguished on the facts of the two cases. In J

.W. , it is arg

uable tha t the child

went to the

defenda nt’s home so the def

endant c ould-2-

counsel a troubledyouth at that hous e as a part of the defendant’s duties as a school resource officer. In the instant case, the plaintiff went to Dr. Pedigo’s condominium to relax while the two of them awaited a possible

call to du ty for Dr. Pedigo. The

former situation involved the defendant’s official duties; the

latter do es not. With respec t to the languag e in the op inion in J.W. – “or takes advantage of such actual or purported capacity ” –

upon which the majo

rity relies, this language must be read in the context of the facts of that case. Nat’l Life & Accident Ins. Co. v. Eddings , 188 Tenn. 512, 523, 221 S.W.2d 695, 699 (1949).
I wo ul d a ff

ir m t he tr ia l c ou rt ’s ju dg me nt in it s e nt ir et y.

_______________________________ CHARLES D. SUSANO, JR., JUDGE