# FILED

Au gust 26, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECT ION A T JA CKSON
STEVE ELDRI DGE and wife, ) LORI ELDR IDGE, ) ) Plaintiffs/App ellees, ) Gibson Circuit N o. 7093 ) VS. ) A ppeal No. 02A 01-9503-CV-000 41 ) THE CITY OF TRENTON, ) ) Defendant/Appellant. )
APPEAL FROM THE CI RCUI T COUR T OF GI BSON C OUNTY

AT TRENTON, TENNESS EE THE HONORABLE DICK JERM AN, JR., JU DGE

PAUL F. RICE UTLEY &

LA TIMER, PC Jackson, Tennessee Attorney for Appellant T. J. EMISON, JR. Alamo, Tennessee ROBERT K INTON Trenton, Tennessee Attorneys for Appellee

REVERSED A ND DISMIS SED

ALAN E. HIGHERS , J.

CONCUR: W. FRA NK CRA

WFORD, P.J., W.S. DAVID R. FA RMER, J. In this pers onal inj ury action , Steve Eld ridge (“Plaintiff”) and his wife, Lori Eldridge2

(“Wif e”), filed suit ag ainst the Ci ty of Trenton (“ Defendant”) for inj uries and damag es sustained when Plai ntiff was shot in the face by an armed robber while working as a clerk in a liquor

store. Pri or to Plainti ff’s injury, the Trenton Poli ce Department re ceived a tip from the Gibson County sheriff th at one of the three liquor stores in Trenton woul d be “hit” bya particular individual. Because the Trenton Poli ce Department di d not warn the owner of the liquor

store at w hich Plainti ff worked or any of the store’s e mployees o f the tip it received from the Gibson C ounty sheri ff, Plaintiffs based their suit upon neg ligence and failure to warn theories. Thetrial cour t granted summar

y judgment in favor of Defendant
on all issues contained within the complaint, with the exception of Plain tiffs’ a llegation regarding the Trenton Police Department’s duty to warn Plaintiff of the she riff’s tip. After
a bench trial, the trial co urt awar ded Plaintiff $130,000 and awarded Wife $25,000. Defendant appeals this judgment, arguing that the trial court erred in rejecting its defense of government al immunity. For the reas ons stated hereafter , we reverse the judg ment of the trial c ourt.

FACTS On Friday, December 25, 1992, the Gibson County Sher iff, Joe Shepard, cal led the Trenton Police Department tw ice stating that he had received a tip from a rel iable informant that Vincent Anderson (“Anderson”) had probably been involved in a pawn shop burglary
on December 24, 1992, and that Anderson would als o probably “hit” one of the t hree liquor stores in Trenton, Tennessee, s ometime between Christmas D ay and New Year’s D ay for the purpose of gett ing cash to get out of tow n.

After receivi ng this ti p from Sheriff Shepard, th e Ch ief of the Tren ton Police Department, Thomas Litton (“Litton”), implemented a sy stem whereby

additional r

outine, period ic checks of the three T renton liquor stores were made in order to more closely monitor the stores’ activiti es. The Trenton Poli ce Department as signed anumber to each of the three Trenton liquor stores: one, two, and thr ee. As the Trenton Police Depar tment made periodic checks of these st ores, the checks were logged in to the Department’s records as routine check one, two, and three. These number s were as signed to the three3

stores so that the stores could be checked and recorded by t he Trenton Police Department without placing the stores’ names out over the scanne rs for members of the public to hear.

The Trenton Police Department, however, did not warn any of the three Trenton liquor stores’ owners or employees of the tip it received regardingthe potential “ hit” ofone of the stor es. T he T rent on Po lice D epa rtme nt de cide d not to warn the o wn ers o r employeesof the three Trento n liquor stores of the tip because t he Police Depar tment determined that the potential “hit” of o ne of the store s wo uld be a b urg lar y i nste ad of a robb ery. Chief Litton testified that h e made this determinat ion after conside ration of the following factors: the Trenton Police Department received the tip on a holiday ; Anderson
was suspected of

a pawn shop b urglary

which oc curred one day before the Trenton Police Departm ent rece ived t he ti p; an d And erso n’s p ast c rimin al his tory a nd ba ckgro und invo lve d burglari es rather than robberies. Chief Litto n also determined that, if a burglar y was going to occur, Chr istmas Day would be a prime day

for the burglary because the stores would be closed on that day.

In support of the deci sion not to warn the owners or employees of

the three Trenton liquor stores, Chi ef Litton also tes tified that the re are certain inherent risks involved in issuing a gener al warni ng to employees of a s tore in resp onse to a tip received by the Police Department. Suc h risks i nclude the possi bility that untrained, a r m ed employees could inadverten tly inj ure or kil l innocent ci tizens or police of ficers. Chi ef Litton further opi ned that t here would be a greater chance of a confrontati on occurringif a general warning was given to store employees of a p otential “hit.”

On Monday, D ecember 28, 1992, at approxi mately 9:00 p.m. , Anderson entered the House of Spirits, oneof the three liq uor storesin Trenton, w here Plainti ff was work ing as

a clerk. In the course of commit ting an armed robbery, Anderson shot Pl aintiff in the face,
seve rely injur ing h im.4

Someti me during the 1980's prior to Plaintiff ’s accident, Plain tiff a nd Wife owned and operated The Party Shoppe, a mini-convenience s tore locat ed in Tr ento n. P lai ntiff testified that, during hi s ownersh ip of The Party S hoppe, the Trenton Poli ce Department warned him on vari ous occasions of criminal act ivity in the area. Wife also test ified that she could remember on e occasion w hen the Trenton Police Department warned her and Plai ntiff that a robbery

had occurred in Milan, that the cri minals had not been apprehended, and that she and Pl aintiff should take s afety precauti ons.

LAW On ap pea l, Def end ant r aise s the foll owing i ssue s fo r this Court ’s revi ew: 1) Whether the trial court er red in holdin g that the Trenton Police Department has
a duty to warn potential crime victim s of anonymous tips received by the Police Department; and 2) Whether the trial court erred i n denying discretionar y function immuni ty

pursuant to T.C.A. § 29-20- 205 to the City of Trenton for the Trenton P olice Depar tment’s handling of an anonymous tip it received. Plai ntiffs also have appealed, arguing that the trial court erred i n aw ardi ng Wife $25,000 for her los s of consortium c laim instead of the statutory limit of $130,000.

PUBLIC DUTY DOCTRINE Prior t o the pass age of the Tennessee Gov ernmental Tort Li ability Act, a municipality

and its p olice and f ire de part men ts gen eral ly were i mmu ne f rom s uit b y a privateindividual based upon the principle tha t duties of municipal co rpo rations in furnishing police and fire protect ion were g eneral duties owed to the publ ic at larg e and not special duties owed to a private individual. See Gordon v. C ity of Hender son , 766 S.W.2d 784, 785-86 (Tenn. 1989); see also Fulenwide r v. Fi refighters Ass’n Local U nion 1784 , 649 S .W .2d 268, 269-70 (Tenn. 1 982) (statin g that city is not liab le in priv

ate damage suit to individual citizen s for

failure to furnish ade quate police or fire protec tion); Burnett v. Rudd , 54 S.W.2d 718 (Tenn. 19 32); Irvine v. City of Chattan ooga , 47 S.W . 419 (Tenn. 1898). This princip le is commonly referred to as the public duty doctrine.5

The public duty doctrine, which ori gi nated at common law, shields a public employee from suits for i njuriesthat are caused bythe public empl oyee’s breach of a duty owed to the public at large. Ezell v. Cockrell , 902 S.W.2d 39 4, 397 (Tenn. 1 995) (citi ng Kel lyM. T ullier, Governmental Liability for Negligent Failure to Detain Drunk Drivers , 77 Cornell L. Rev. 873 , 886 (1992)). This doctri ne can be trac ed to the United States SupremeCourt’s dec ision in South v. Mar yland , 59 U.S. (18 Ho w.) 396(1855), w herein the SupremeCourt held t hat a sheriff was not liable for failing toprotect a kid nap victim because the sheriff’s duty to keep the peace was “a public duty, for neglect of which he is amenable to the pu blic, and punishable by indictment only.” South , 59 U.S. at 403.

In addressing the duty owed b ylaw enforcement officers to indi viduals w ithin the community, thi s Court has stated:

The duty of a law enforce me nt officer to preser ve the peace and arrest lawbreakers is one w hich the officer owes to the public gene rally, rather than to p articular individual s, and the breach of such du ty cr eates no liabi lity on t he part of the officer to an indiv idual who is damaged as a result of the officer’s failure to perform it. * * *

In the absence of spec ial c ircumstances, there is no duty resting upon a municipali ty or other government al body to provide police prote ction to any particular

person, and it

may not be held liab le for its fail ure to do so. Seidner v. Metropolitan Gov’t , No. 01A01-9012- CV-00451, 1991 WL 66440, at *4 (Tenn. App. May 1, 1991) (quoting 70 Am. Jur. 2d Sheriffs, Pol ice, and Const

ables § 94; 57 Am. Jur. 2d Municipal, School, and State Tort Liabil ity § 444), perm. app. denied (Tenn. Sept. 9, 1991).

In Ezell v. Cockrell , 902 S.W.2d 394 (Tenn. 1995), t he supreme court addressed the application of the public duty doctrine in light

of the legisl ature’s passa ge of the Tennessee Governmental Tort Liabili ty Act. I n Ezell , the plaintiff’s husband was k illed and the pla inti ff
was seriously

injured by

an intoxi cat ed driver. Ezell , 902 S.W.2d at 396. Earlier i n the
ev ening, the police ch ief of the City of Elkton had permit ted the driver to operatea n into xicat ed f rien d’s ca r when the p olice chie f all eged ly kne w, or sh ould have known, that6

the driver

was als o intoxicated. Id . The plaintiff sued the City of Elkton and its polic e chief based on the police chief’s negl igence in fail ing to arrest the intox icated driver. Id . at 396- 97. Reaffirming t he viabil ity of the publ ic duty doc trine, the cour

t concluded that

the City could not be held liable for the po lice chief’s failure to arre st the in toxicated dr iver. Id . at 404.

Various public poli cy consi derations have been advanced t o explain an d support the adoption of the public duty doct rine. One public pol icy cons ideration adv anced is that individuals, juries, and courts are ill-eq uipped to judg e government al decisions as to how specific community resources should be or should have been allocated to protect individ ual members of the public. Ezell , 902 S.W.2d at 397-98 (citing Morgan v. District of Columbia , 468 A.2d 1306, 1311 (D .C. 1983)). A second factor favoring appli cation of the public duty doctr ine i s the depletion of municipal res ources that would result i f every ov ersight or omission of apolice official resulted in civil liability

. Ezell , 902 S.W.2d at 397-98. A third factor justifyin g applicati on of the public duty doctrine inv

olves recognition of the fact that, without the applicati on of such doctri ne, police officers continually

would be faced with the precariousdilemma of deciding between w hethe r to av oid liabil ity for per sonal injur

y by arresting all persons

who pose any

potential threat to the public or whether to

avoid li ability forfalse imprisonment

by not arr

esting thosepersons. Id . The public duty doctrine “s erves the important purpos e of preventing excessi ve court i ntervention into the governm ental process by protecting the exercise of law enforcement discretion .” Id . at 400-01; see also Sta te v. Jefferson , 529 S.W.2d 674, 689 (Tenn. 1975) (st ating that i t is essenti al to protection of society t hat wide dis cretion be vested in officers c hosen to enforce our laws).

In the presen t ca se, we conc lude that the ev idence presented at trial br ings the actions of Defendant and t he officers of the Trenton P olice Depar tment within the scope of the public duty

doctrine of governmental immu nity. Plaintiffs’ theor y of recovery was that the Trenton Police Departmentbreached itsduty to warn Plaintiff of a pote ntial crime at his place of business. The duty of the Trenton Police Depar tment t o prot ect Pl ainti ff from cr ime falls within the Police Department’s general duty to preserve the peace, arrest lawbreakers,7

and provide police protection. Because this duty is o wed to the public generally , rather than to particular

individ uals, based upon the applicati on of the public duty doctrine, we hold that Defendant is not liab le for the Trenton Pol ice D epartm e nt’s failure t o warn Pl aintiff. See Green v. Denis on , 738 S.W.2d 861, 866 ( Mo. 19 87) (holding that, under publ ic duty doctrine, police officers could not be held liable for officers ’ failure t o war n residents of apartment buildi ng that officers were enter ing buildi ng to arrest gunman).

SPECIA L DUTY EXCEPTION In adhering to the publ ic duty doct rine in Ezell , the supreme cour t recogniz ed the continuing viabili ty ofthe special duty ex ception to the publ ic duty doc trine’s no- liability

rule. Ezell , 902 S .W .2d a t 401 . The spec ial du ty exc eption applies “where a ‘special
re lationsh ip’ exists between the pl aintiff and the public employee, w hich gives rise to a ‘special duty’ that is more parti cular than theduty ow ed by the employee to th e public at large.” Id. In Ezell , the court further refined the speci al duty ex ception to the publ ic duty doctrine and c onclude d that the application of the exc eption should be l imited to the following three situations:

1) [When] officials, bytheir actions, affirma tively undertake to protect the plaintiff, and the plainti ff relies upon the undert aking; 2) [When] a statute specifically provides

fora cause ofaction against an official or muni cipality for injuries

resulting to a particular

class of indi vidua ls, of which the plaintiff is a member, from failure to enforce certain laws; or 3) [When] the plaintiff alleges a c ause of action i nvo lving intent, malice, or reckless conduc t. Id . at 402.
Despite its recog nition of the special duty exception to the public duty doctri ne, the court concluded that t he exception did not apply in Ezell . Regardi ng the first situation under the speci al duty exception, the cour t explained that: The plaintiff’s all egations do not support appli cation of a “special- duty” of care. Neither [the police chi ef] nor the City of Elkton had, by

their acti ons, affirmativel y undertaken t o prot ect th e plaintiff. In fact, [the police chi ef] never had any contact with the plaintiff; t hus, the defendants had taken no action which would have caused the plaintiff to pa rticularly rely8 upon them for protecti on. Eze ll , 902 S.W.2d at 403. The court also r ejected the plai ntiff’s argument t hat a specia l duty of care arose from certain statut es pertaining to drunk driving, public intoxic ation, and the general authority and responsibility of police of ficers to en for ce la ws and make arrests. The court reasoned that:

Such statutes neithe r impose amandatory duty to arrest every motorist sus pect ed of drivin g und er th e inf luen ce, n or au thor ize negligence actions against police officers who do not arrest every suspected drunk driver

. Id

. The court li kewise concluded that the third situation under the special d uty exc eption did not apply because the plaintiff’s al legations di d not establish i ntentional, mali cious, or reckless conduct but, inst ead, established only si mple neglig ence. Id

.

Plai ntiffs contend that the evidence presented at tr ial bring s this acti on within the first s p e c i a l d u t ye x c e p t i o n t o t h e p u b l i c d u t yd o c t r i n e . We respectfully disagree. Although the Trenton Police Departme nt had increased its surve illance of the thr ee liquor stores afterreceivi ng the tip from Sheri ff Shepard regardi ng Anderson’ s potential “ hit” of one of the stores, thi s action by the Police D epartment falls sh ort of the first si tuation recog nized under the special duty exception, under which officials, by their actions, must af firmatively undertake to prot ect a plaint iff a nd the p laintif f must rely upon t he off icials’ un dertaki ng. W hil e the Trenton Police Departm ent did increase its watch over the three liquor stores,
no not ice was

giv en by the P oli ce D epar

tmen t to any

of th e ow ners

or e mplo yee s of t h e liquor stores of either the fa ct that the Police Departmen t had rece iv ed a tip re garding a potential “hit” on one of the stores or the fact that the Pol ice Department had increased i ts surveillance of the stores in response to the tip. Thus, ne ither Plaintiffs nor the owners or employeesof any of the three liquor s tores could hav e relied upon t he Trent on Police Department’s increased watch over t he stores. Se e Hurd v. W oolfork , No. 02A01-9607- CV00170, 1997 WL 224883, a t *5 ( Te nn. App. May 6, 1997) (conc luding that public duty d oct rine barred suit against sheriff f or failure to execute arrest warrant on plaintiff s’ neighbor where compl aint failed to al lege that plaintiffs reli ed upon sheriff to prot ect them from neighbor) . Moreo ver, Plai ntiff has f ailed to explain how he relied on the Police Department’s past warning s of criminal activity in the area.9

Inasmuch as Plaintiffs have been unable to est ablish the appl ication of the special duty excep tion t o the public dut y doctri ne, we adhereto our holdingthat the public duty doctrine bars this lawsuit. In light of our holding, we need not address the pa rties’ remaining issues concerning discretionary function immunity and damages.

The judgm ent o f th e tria l cou rt is h ereb y r eve rsed, and this cause is di smissed. Cost s on a ppe al are taxed to Pla inti ff s fo r which execu tion may is sue i f ne cess ary.

HIGHERS, J.

CONCUR:

CRAWFORD, P.J., W.S.

FARMER, J.