IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs October 11, 2010

CHERYL BROWN GIGGERS, ET AL. 

v. 

MEMPHIS HOUSING AUTHORITY, ET AL.

Direct Appeal from the Circuit Court for Shelby County

No. CT-000896-03 Kay S. Robilio, Judge

No. W2010-00806-COA-R9-CV - Filed December 14, 2010

This is the second appeal of this wrongful death action, arising from a fatal shooting of a

tenant at a Memphis public housing property. This Court granted Appellant, Memphis

Housing Authority’s, Tenn. R. App. P. 9 interlocutory appeal to address the trial court’s

denial of summary judgment in favor of the Appellant. Finding that Appellees’ “failure to

evict” claim is preempted by 47 U.S.C. §1437, and that Appellant retains its sovereign

immunity under the discretionary function exception to the Tennessee Governmental Tort

Liability Act, we reverse and remand for entry of summary judgment in favor of Appellant.

Reversed and remanded.

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

and Remanded

J. STEVEN STAFFORD,J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J.,

W.S., and DAVID R. FARMER, J., joined.

C. Wesley Fowler, Memphis, Tennessee, for the appellant, Memphis Housing Authority.

Archie Sanders, III, Memphis, Tennessee, for the appellees, Cheryl Brown Giggers, Charles

C. Brown, Jr., Angela Brown, and JoAnn Fisher.

Joe Lee Wyatt and William J. Wyatt, Memphis, Tennessee, for the appellee, Scruggs Security

and Patrol, LLC.

OPINION

The relevant facts are undisputed and are set out in this Courts’ opinion, Giggers, et
al. v. Memphis Housing Authority, No. W2006-00304-COA-R3-CV, 2007 WL 2216553

(Tenn. Ct. App. Aug. 3, 2007). On March 7, 2002, Charles Cornelius Brown, Sr.

(“Decedent”) was a resident of an apartment complex located at 741 Adams Avenue, in

Memphis, which was owned and operated by the Memphis Housing Authority (“MHA” or

“Appellant”) when he was fatally shot. Giggers, 2007 WL 2216553, at *1. The shooter,

L.C. Miller, who was approximately seventy years old at the time of the shooting, was also

a tenant at the Adams Avenue property. On the day of the shooting, Mr. Miller had been

asked to stop “using bad language and cursing” by a security guard for Scruggs Security &

Patrol, LLC (“Scruggs”). Id. Scruggs and the MHA had a contract, under which Scruggs

provided security for the Adams Avenue property. Id. When the security guard briefly left

his station, Mr. Miller went back to his apartment, apparently for the purpose of obtaining

a rifle. When the security guard returned, Mr. Miller began shooting at him. The Decedent,

who was in the manager’s office at the time, was struck and killed by one of the shots fired

by Mr. Miller. Id.

On February 18, 2003, the Decedent’s surviving children, Cheryl Brown Giggers,

Charles C. Brown, Jr., and Angela G. Brown, and the Decedent’s sister, Joann Fisher,

(together with Ms. Giggers, Mr. Brown, Jr., and Ms. Brown (“Plaintiffs”) filed a complaint

against the City of Memphis (the “City”) and the MHA, asserting claims for the wrongful

death of the Decedent as a result of negligence, and for breach of contract pursuant to the

Decedent’s lease agreement with the MHA. Giggers, 2007 WL 2216553, at *1. Plaintiffs

alleged negligence by the defendants in: (1) failing to properly screen Mr. Miller prior to

leasing an apartment to him; (2) failing to enforce internal admissions and occupancy policies

with regard to Mr. Miller; (3) allowing Mr. Miller to possess a rifle; and (4) failing to

properly assess an allegedly known threat or risk to the other tenants of the public housing

property. Id. Plaintiffs further asserted that the MHA had breached its lease agreement with

Mr. Brown by failing to keep or maintain a “safe condition” at the premises. The City filed

a motion to dismiss, or alternatively, for summary judgment, arguing that it was not a proper

party to the litigation and that the MHA existed as a separate entity. Id. On September 12,

2003, the trial court entered an order, dismissing the City from the litigation and granting

leave to Plaintiffs to amend their complaint. Id.

On September 16, 2003, Plaintiffs amended their complaint to name the MHA as the

sole defendant. Giggers, 2007 WL 2216553, at *2. On April 28, 2004, the MHA filed its

answer, in which it denied all liability and set forth several affirmative defenses. On May

27, 2004, Plaintiffs filed a second amended complaint, adding Scruggs (together with

Plaintiffs, “Appellees”) as a defendant and alleging that Scruggs had negligently failed to

secure the property pursuant to its security contract with the MHA. Id. On August 20, 2004,

Scruggs filed its answer, in which it denied liability and set forth various affirmative

defenses. Scruggs also asserted a cross-claim against the MHA, alleging that the MHA was

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negligent in screening Mr. Miller prior to his tenancy and in renting an apartment to him. Id.

By its cross-claim, Scruggs sought indemnity in defending the litigation pursuant to the

provisions of its contract with the MHA. Id. The MHA, in turn, filed its own cross-claim

against Scruggs, alleging that Scruggs was vicariously liable for the negligent acts of its

security guard, and that the MHA was entitled to indemnity from Scruggs pursuant to their

security contract. Id.

On February 11, 2005, the MHA filed a motion to dismiss or for summary judgment

as to all claims against it. Giggers, 2007 WL 2216553, at *2. On October 25, 2005,

Plaintiffs opposed the MHA’s motion for summary judgment, asserting, among other things,

the following facts: (1) Mr. Miller was charged with aggravated assault in 1979; (2) in June

1977, Mr. Miller pled guilty to firing a weapon within the city limits of Memphis; (3) in May

1998, Mr. Miller, while a resident of the property at 741 Adams Avenue, hid behind some

bushes in an attempt to stab another tenant with a knife and was, consequently, charged with

aggravated assault. Id. at *3. Based upon the foregoing averments, Plaintiffs argued that the

MHA had notice of Mr. Miller’s propensity for violence, and specifically that it had actual

notice of the 1998 incident, where Mr. Miller had attempted to stab another tenant. Id.

On October 28, 2005, the trial court held a hearing on the MHA’s motion for summary

judgment. Giggers, 2007 WL 2216553, at *3. In written correspondence to the parties,

dated November 28, 2005, the trial court held that neither the internal policies of the MHA,

nor the contents of Mr. Miller’s criminal background check created any duty to the Plaintiffs

under these circumstances. Moreover, after observing that a policy excluding those with

prior records would result in a “massive underclass of ex-convicts homeless due to an

inability to find housing,” the trial court rejected Plaintiffs’ argument that there was an

affirmative duty on the part of the MHA to conduct a criminal background check on

prospective residents. Finally, the trial court held that the Plaintiffs were not entitled to

recover as third-party beneficiaries for breach of the terms of the lease agreement between

the MHA and Mr. Miller. Id. at *4.

On direct appeal to this Court, Plaintiffs argued that, because the MHA had some

awareness of Mr. Miller’s propensity toward violence and, therefore, had a duty to take

reasonable steps to maintain a safe premise, the trial court erred by dismissing the alternative

theories of recovery in tort and contract. Based upon the MHA’s prior knowledge of Mr.

Miller’s violent behavior, the Plaintiffs asserted that the MHA had a duty to monitor Mr.

Miller’s actions, or to evict him from the premises. Giggers, 2007 WL 2216553, at *6. On

appeal, this Court affirmed the grant of summary judgment in favor of the MHA, holding that

“an isolated violent outburst...by Miller was [in]sufficient to notify the MHA that criminal

acts against its tenants were reasonably foreseeable.” Id. at *11. Consequently, we held that

the MHA owed no duty to Mr. Miller under the particular circumstances. Id. We further

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held that a landlord has no affirmative duty to evict or closely monitor a tenant who is known

to have a criminal history. Id. at *12. Balancing the foreseeability and the gravity of the

harm against the commensurate burden imposed on the landlord to provide protections

against that harm, we opined that public policy considerations weighed against the imposition

of any duty in this case. Id. We also considered the lease provisions requiring the MHA to

“maintain the dwelling unit and development in a decent, safe and sanitary condition” as a

separate basis for liability, and held that this language merely obligated the landlord to

maintain the property so that the apartments and common areas were free from physical

defects, and that the general rules of contract interpretation “did not contemplate protection

of [tenants] from harm by third persons.” Id. at 13 (quoting Archer v. Burton Plaza Assoc.,

Ltd., No. 03A01-9511-CV-00417, 1996 WL 93584, at *2 (Tenn. Ct. App. Mar. 4, 1996)).

Our Supreme Court granted Plaintiffs’ application for permission to appeal to consider

the propriety of the negligence claim and, specifically, to determine whether the MHA’s

knowledge of Mr. Miller’s prior act of violence at the apartments created a duty of care to

Plaintiffs’ Decedent. Giggers, et al. v. Memphis Housing Auth., et al., 277 S.W.3d 359, 363

(Tenn. 2009). The Supreme Court reversed this Court in part, finding that “a special

relationship exists between a landlord and a tenant, placing an obligation on the landlord to

take reasonable measures of protections...[b]ecause a reasonable person could foresee the

probability of violence [at the Adams Avenue property,] and because the gravity of potential

harm outweighs... the burden [on the MHA] of taking protective measures for the safety of

the tenants.” Giggers, 277 S.W.3d at 371. Based upon this finding, our Supreme Court

concluded that it was unable to determine, as a matter of law, that the Plaintiffs were not

entitled to recover on a claim of negligence under any version of the facts, but cautioned that

its ruling did not foreclose the possibility that the Plaintiffs would be unable to present

sufficient evidence to support their claim. Id. at 372.

1

Upon remand to the trial court, on July 31, 2009, the MHA filed a motion to dismiss

for failure to state a cause of action pursuant to Tenn. R. Civ. P. 12.02(6), or, in the

alternative, for a more definite statement. The MHA’s motion was denied by order of

September 14, 2009, and Plaintiffs were allowed to file a third amended complaint on

2

We note that the Supreme Court did not disturb the trial court’s summary judgment, as affirmed 1

by this Court, dismissing Plaintiffs claims based on the “safe environment” language in the lease, Plaintiffs’

claims based on “allowing” Mr. Miller to possess a rifle, or Plaintiffs’ claims based on the MHA’s alleged

failure to perform a background check when initially leasing an apartment to Mr. Miller. Giggers, 277

S.W.3d at 362.

The trial court’s order dismissesthe MHA’s motion, and does not contain a more definite statement 2

of the court’sruling. Consequently, we infer that both the motion to dismiss and the motion for more definite

(continued...)

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September 30, 2009, alleging a new claim for “failure to evict.” The “failure to evict” claim

had previously been argued by Plaintiffs on appeal, but had not been pled until the third

amended complaint. On October 23, 2009, the MHA filed an answer to the third amended

complaint, in which it denied liability and asserted the defenses of preemption and

discretionary function immunity in response to the Plaintiffs’ claims that the MHA had a

common law duty to evict Mr. Miller. On November 13, 2009, the MHA filed a motion to

dismiss, or alternately, for summary judgment, on grounds that the Plaintiffs’ only remaining

claim against the MHA (i.e., failure to evict) is preempted by federal law, and is barred by

the discretionary function exception to the waiver of immunity provided for by the Tennessee

Governmental Tort Liability Act (“TGTLA”), Tenn. Code Ann. §29-20-101, et seq. The

MHA’s motion was heard on February 19, 2010. On March 4, 2010, the trial court entered

an order denying the MHA’s motion for summary judgment as to the indemnity claim of

Scruggs. A second order was entered on March 4, 2010, which order provides, in relevant

part, as follows:

The two issues presented by MHA’s Motion for Summary

Judgment are:

1. Whether the Plaintiffs’ new state law claims alleging a duty

to evict Mr. L.C. Miller based on a prior altercation between Mr.

Miller and another tenant are preempted by federal law requiring

the MHA to use discretion in making eviction and occupancy

decisions.

2. Whether Plaintiffs’ new claims alleging a duty to evict Mr.

L.C. Miller are barred by the Discretionary Function Exception

to the waiver of sovereign immunity under the Tennessee

Governmental Tort Liability Act.

Although the Court finds merit to these arguments, given the

prior appeal in this case the Court finds that the MHA’s Motion

for Summary Judgment should be denied.

In response to the trial court’s denial of its motion for summary judgment, the MHA

moved the lower court for permission to file an interlocutory appeal under Tenn. R. App. P.

9, which motion was granted by the trial court’s order of April 6, 2010. By order of June 24,

2010, this Court granted the interlocutory appeal to address two issues, as stated by the MHA

(...continued) 2

statement were denied. 

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in its brief (and adopted by Scruggs in its brief), to-wit:

1. Whether Plaintiffs’ state law claim, alleging a duty on the

part of the MHA to evict Mr. Miller is preempted by 42

U.S.C.S. §1437(d)(1)(6) and 24 C.F.R. §966.4?

2. Whether Plaintiffs’ state law claim, alleging a duty on the

part of the MHA to evict Mr. Miller is barred by the

discretionary function exception to the waiver of sovereign

immunity under Tenn. Code Ann. §29-20-101, et seq., the

Tennessee Governmental Tort Liability Act?

Before reaching these issues, we pause to discuss a deficiency in the trial court’s order

denying the MHA’s motion for summary judgment. Prior to July 1, 2007, the trial court was

not required to state the legal grounds for granting or denying summary judgment in its order;

inclusion of the legal grounds were only necessary “upon request” of either party. However,

Tenn. R. Civ. P. 56.04 was amended, effective July 1, 2007, to state: “[t]he trial court shall

state the legal grounds upon which the court denies or grants the motion, which shall be

included in the order reflecting the court's ruling” (emphasis added). As set out above, the

order appealed in this case does not comply with Tenn. R. Civ. P. 56.04. When the legal

grounds for the trial court's decision are omitted, a reviewing court cannot analyze the

decision's validity, and appellate review becomes unnecessarily speculative. The 2007

amendment to Tenn. R. Civ. P. 56.04 was intended to cure this problem. The Rule's

requirements are specific and without exception. Winn v. Welch Farms, No.

M2009-01595-COA-R3-CV, 2010 WL 2265451 (Tenn. Ct. App., June 4, 2010) (citing

Eluhu v. HCA Health Servs. of Tenn. Inc., No. M2008-01152-COA-R3-CV, 2009 WL

3460370, at *21 (Tenn. Ct. App. Oct. 27, 2009)). Here, the trial court states only that,

“[a]lthough the Court finds merit to [the MHA’s] arguments, given the prior appeal in this

case the Court finds that the MHA’s Motion for Summary Judgment should be denied.” This

is not a legal basis for the decision to deny the MHA’s motion; consequently, we find that

the trial court erred in failing to include the legal basis for its denial of summary judgment

in the order.

However, the case before us presents the rare instance when such an error will not

compel a remand to the trial court. See White v. Pulaski Elec. Sys., No.

M2007-01835-COA-R3-CV, 2008 WL 3850525, at *3 (Tenn. Ct. App. Aug. 18, 2008);

Burgess v. Kone, Inc., No. M2007-02529-COA-RC-CV, 2008 WL 2796409, at *2 (Tenn.

Ct. App. July 18, 2008). Here, the record presents clear legal issues (i.e., whether Plaintiffs’

case is preempted by federal law and/or whether it is barred by the discretionary function

exception to the waiver of sovereign immunity under the TGTLA), which issues were almost

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certainly the basis for the trial court's decision to deny summary judgment in favor of the

MHA. Therefore, for the sake of judicial economy, we will “soldier on without guidance

from the trial court.” Church v. Perales, 39 S.W.3d 149, 158 (Tenn. Ct. App. 2000).

However, in so doing, we do not recognize any general exception to the clear requirements

of Tenn. R. Civ. P. 56.04.

Turning to the issues, we first note that it is well settled that a motion for summary

judgment should be granted when the movant demonstrates that there are no genuine issues

of material fact and that the moving party is entitled to a judgment as a matter of law. See

Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the burden of

demonstrating that no genuine issue of material fact exists. See Bain v. Wells, 936 S.W.2d

618, 622 (Tenn. 1997). On a motion for summary judgment, the court must take the strongest

legitimate view of evidence in favor of the nonmoving party, allow all reasonable inferences

in favor of that party, and discard all countervailing evidence. See id. In Byrd v. Hall, 847

S.W.2d 208 (Tenn. 1993), our Supreme Court stated:

Once it is shown by the moving party that there is no genuine

issue of material fact, the nonmoving party must then

demonstrate, by affidavits or discovery material, that there is a

genuine, material fact dispute to warrant a trial. In this regard,

Rule 56.05 provides that the nonmoving party cannot simply

rely upon his pleadings but must set forth specific facts showing

that there is a genuine issue of material fact for trial.

Id. at 211 (citations omitted).

Summary judgment is only appropriate when the facts and the legal conclusions drawn

from the facts reasonably permit only one conclusion. See Carvell v. Bottoms, 900 S.W.2d

23, 26 (Tenn.1995). In the instant case, the material facts are not disputed. Because only

questions of law are involved, there is no presumption of correctness regarding a trial court's

denial of summary judgment. See Bain, 926 S.W.2d at 622. Therefore, our review of the trial

court's denial of summary judgment is de novo on the record before this Court. See Warren

v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).

Whether a State Law Tort Claim Against a Public Housing Authority for “Failure

to Evict” a Tenant is Barred by the Doctrine of Preemption.

In raising their “failure to evict” claim against the MHA, Plaintiffs allege that the

MHA had a common law duty to evict Mr. Miller after he attempted to stab another tenant

in 1998. The MHA argues that, if this Court were to hold that Plaintiffs’ claim for “failure

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to evict” is not preempted, this decision would “create a common law duty to evict a tenant,

which is inconsistent with, or stands as an obstacle to, the accomplishment of the full

purposes and objectives of federal law controlling public housing authorities eviction and

occupancy decisions.” Plaintiffs argue that MHA’s position misapprehends the

congressional purpose underlying 42 U.S.C. § 1437d and 24 C.F.R. § 966.4, and also

misconstrues the nature of the Plaintiffs’ claim.

As part of the Anti-Drug Abuse Act of 1988, Congress enacted legislation giving local

public housing authorities (“PHAs”) the authority to evict tenants. Because Plaintiffs argue

that the MHA should have evicted Mr. Miller following the 1998 stabbing incident, MHA’s

authority to do so was governed by statutes and regulations in effect at that time. Here, that

statute is the 1997 version of 42 U.S.C. § 1437d, which provides, in relevant part, as follows:

(l) Leases; terms and conditions; maintenance; termination

Each public housing agency shall utilize leases which–

* * *

(5) provide that any criminal activity that threatens the health,

safety, or right to peaceful enjoyment of the premises by other

tenants or any drug-related criminal activity on or off such

premises, engaged in by a public housing tenant, any member of

the tenant’s household, or any guest or other person under the

tenant’s control, shall be cause for termination of tenancy;

Concerning the reason for the enactment of this statute, 56 Fed. Reg. 51,560 (Oct. 11, 1991)

provides, in relevant part, as follows:

The Congress has determined that drug crime and criminal

threats by public housing household members are a special

danger to the security and general benefit of public housing

residents, warranting special mention in the law. (U.S.H. Act,

section 6(l)(5), 42 U.S.C. § 1437d(l)(5).) For this reason, the

Congress specified that these types of criminal activity by

household members are grounds for termination of tenancy

(without the need for a separate inquiry as to whether such

criminal activity constitutes serious or repeated lease violation

or other good cause for eviction). The legislative determination

by the Congress rests on a reasonable judgment that the potential

for a PHA to exercise eviction as a contractual sanction against

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criminal behavior by unit occupants will promote the welfare of

public housing residents in general, and will support the

effective management of the housing. Since this judgment is

reasonable, and promotes a legitimate public purpose, the

legislation is Constitutional under the normal equal protection

standard.

See 56 Fed. Reg at 51,560-67 for full context.

In accordance with the intent of the Anti-Drug Abuse Act, HUD regulations mandate

that PHAs have authority to determine whether to evict tenants. As is applicable to this case,

24 C.F.R. § 966.4 (1997) provides:

(l) Termination of tenancy and eviction.–

* * *

(5) Eviction for criminal activity–

(i) PHA discretion to consider circumstances. In deciding to

evict for criminal activity, the PHA shall have discretion to

consider all of the circumstances of the case, including the

seriousness of the offense, the extent of participation by family

members, the effects that the eviction would have on family

members not involved in the proscribed activity. In appropriate

cases, the PHA may permit continued occupancy by remaining

family members and may impose a condition that the family

members who engaged in the proscribed activity will not reside

in the unit....

3

The current version of 24 C.F.R. § 966.4 is more expansive than the 1997 version, and provides 3

further guidance in determining the Legislative intent underlying the Anti-Drug Abuse Act. The current

regulation provides, in relevant part, as follows:

(l) Termination of tenancy and eviction.– 

* * *

(5) PHA termination of tenancy for criminal activity or alcohol abuse.

(i) Evicting drug criminals. 

(A) Methamphetamine conviction. The PHA must immediately terminate

(continued...)

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In Dep’t of Housing and Urban Dev. v. Rucker, 535 U.S. 125 (2002), the Supreme

Court discussed the Congressional intent underlying the mandatory lease provisions that

afford PHAs the right to evict a tenant for drug-related crimes committed on or off premises

by members of the tenant’s household, a guest, or someone under the tenant’s control. Id.

at 127-28. While the Rucker Court recognized that the strict liability inherent in a “no-fault”

eviction “maximizes deterrence and eases enforcement difficulties,” Rucker, 535 U.S. at 134,

the Court nonetheless recognized the legislative intent to place discretion with the PHAs to

make those eviction decisions:

The statute [i.e., 42 U.S.C. § 1437d(l)(6)] does not require the

eviction of any tenant who violated the lease provision. Instead,

(...continued) 3

the tenancy if the PHA determines that any member of the household has

ever been convicted of drug-related criminal activity for manufacture or

production of methamphetamine on the premises of federally assisted

housing. 

* * *

(ii) Evicting other criminals. 

(A) Threat to other residents. The lease must provide that any criminal

activity by a covered person that threatens the health, safety, or right to

peaceful enjoyment of the premises by other residents (including PHA

management staff residing on the premises) or threatens the health, safety,

or right to peaceful enjoyment of their residences by persons residing in the

immediate vicinity of the premises is grounds for termination of tenancy. 

* * *

(iii) Eviction for criminal activity. 

(A) Evidence. The PHA may evict the tenant by judicial action for criminal

activity in accordance with this section if the PHA determines that the

covered person has engaged in the criminal activity, regardless of whether

the covered person has been arrested or convicted for such activity and

without satisfying the standard of proof used for a criminal conviction. 

* * *

(vii) PHA action, generally. 

* * *

(B) Consideration of circumstances. In a manner consistent with such

policies, procedures and practices, the PHA may consider all circumstances

relevant to a particular case such as the seriousness of the offending action,

the extent of participation by the leaseholder in the offending action, the

effects that the eviction would have on family members not involved in the

offending activity and the extent to which the leaseholder has shown

personal responsibility and has taken all reasonable steps to prevent or

mitigate the offending action. 

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it entrusts that decision to the local public housing authorities,

who are in the best position to take account of, among other

things, the degree to which the housing project suffers from

“rampant drug-related or violent crime,” 42 U.S.C. § 11901(2)

(1994 ed. and Supp. V), “the seriousness of the offending

action,” 66 Fed. Reg., at 28803, and “the extent to which the

leaseholder has ... taken all reasonable steps to prevent or

mitigate the offending action,” ibid.

Rucker, 535 U.S. 125 at 133-34.

According to a letter provided by Appellant, after the Supreme Court’s opinion in

Rucker, the Secretary of HUD reiterated to directors of local PHAs that they were to use

their federally granted discretion, and were to balance important policies when making

decisions based on criminal activities:

June 6, 2002

Dear Public Housing Directors:

In light of several inquiries that HUD has received recently, the

Secretary has asked me to share with you our views regarding

the March 26, 2002 decision of the Supreme Court in HUD v.

Rucker. In Rucker, the Court unanimously affirmed the right of

the public housing authorities, under a statutorily-required lease

clause, to evict entire public housing households whenever any

member of the household, or any household guest, engages in

drug-related or certain other criminal activity. The Rucker

decision upholds HUD regulations that, since 1991, have made

it clear both that the lease provision gives PHAs such authority

and that PHAs are not required to evict an entire household–or,

for that matter, anyone–every time a violation of the lease clause

occurs.

Therefore, after Rucker, PHAs remain free, as they deem

appropriate, to consider a wide range of factors in deciding

whether, and whom, to evict as a consequence of such a lease

violation. Those factors include, among many other things, the

seriousness of the violation, the effect that eviction of the entire

household would have on household members not involved in

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the criminal activity, and the willingness of the head of

household to remove the wrongdoing household member from

the lease as a condition for continued occupancy. The Secretary

and I encourage you to consider such factors and to balance

them against the competing policy interests that support the

eviction of the entire household.

Like Congress and the Supreme Court, HUD recognizes that

PHAs are in the best position to determine what lease

enforcement policy will most appropriately serve the statutory

interest of protecting the welfare of the entire tenant population.

I know that you will continue to act in a manner that protects

that general welfare, while giving consideration–when you deem

it appropriate–to the interest of individuals who share a

household with the wrongdoer, but were otherwise unconnected

with the wrongdoing.

In addition to the foregoing letter, on October 29, 2002, HUD issued NOTICE H2002-

22 to all Directors of PHAs in the United States, which Notice provides, in relevant part, as

follows:

TERMINATING TENANCY–LEASE PROVISIONS

In accordance with the regulation at 24 C.F.R. 5.861, the

Landlord may terminate tenancy and evict the tenant through

judicial action for criminal activity by a covered person if the

Landlord determines that the covered person has engaged in the

criminal activity, regardless of whether the covered person has

been arrested, or convicted for such activity and without

satisfying a criminal standard of proof of the activity. HUD

encourages, but does not require, Landlords to take into account

individual circumstances when making a determination to

terminate tenancy; such circumstances might include, among

other things, the seriousness of the offending action, the extent

of participation by the leaseholder in the offending action, and

whether the leaseholder, if not the wrongdoer, took all feasible

steps to prevent the offending action from occurring and has

removed the offending person from the lease or otherwise

banned the offending person from the premises in the future.

HUD NOTICE H 2002-22, Screening and Eviction for Drug Abuse and Other Criminal

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A c t i v i t y – F i n a l R u l e ( O c t . 2 9 , 2 0 0 2 ) . A v a i l a b l e a t h t t p : / /

www.hud.gov/offices/adm/hudclips/notices/hsg/02hsgnotices.cfm.

The above directives and instructions to PHAs appear to be consistent with the

federally established role of the PHAs when faced with potential eviction decisions. In

essence, PHAs are to exercise discretion by balancing the various competing policy

considerations in light of all relevant circumstances. The question, then, is whether a state

law claim against a PHA for failure to evict a tenant stands as an obstacle to the

accomplishment of the full purpose and objective of 42 U.S.C. § 1437d and 24 C.F.R. §

966.4.

Federal preemption of state law is derived from the Supremacy Clause, which

provides that state legislation shall be subordinate to federal law:

This Constitution, and the laws of the United States which shall

be made in pursuance thereof; and all treaties made, or which

shall be made, under the authority of the United States, shall be

the supreme law of the land; and the judges in every state shall

be bound thereby, any thing in the Constitution or laws of any

state to the contrary notwithstanding.

U.S. Const. art. VI, § 1, cl. 2. Addressing the meaning of the Supremacy Clause in Perez v.

Campbell, 402 U.S. 637 (1971), the United States Supreme Court explained:

As early as Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23 (1824),

Chief Justice Marshall stated the governing principle-that “acts

of the State Legislatures * * * (which) interfere with, or are

contrary to the laws of Congress, made in pursuance of the

constitution,” are invalid under the Supremacy Clause. Id., at

211.... Three decades ago Mr. Justice Black, after reviewing the

precedents, wrote in a similar vein that, while “(t)his Court, in

considering the validity of state laws in the light of treaties or

federal laws touching the same subject, ha(d) made use of the

following expressions: conflicting; contrary to; occupying the

field; repugnance; difference; irreconcilability; inconsistency;

violation; curtailment; and interference (,) * * * (i)n the final

analysis, our function is to determine whether a challenged state

statute stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of Congress.”

Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85

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L.Ed. 581 (1941).

Id. at 649.

Moreover, in Barnett Bank of Marion Co., N.A. v. Nelson, 517 U.S. 25 (1996), the

United States Supreme Court noted appropriate considerations with respect to determining

the preemption question in those cases where the federal statute does not contain language

showing that Congress explicitly intended to preempt state law:

Sometimes courts, when facing the pre-emption question, find

language in the federal statute that reveals an explicit

congressional intent to pre-empt state law. More often, explicit

pre-emption language does not appear, or does not directly

answer the question. In that event, courts must consider whether

the federal statute's “structure and purpose,” or nonspecific

statutory language, nonetheless reveal a clear, but implicit,

pre-emptive intent. A federal statute, for example, may create a

scheme of federal regulation “so pervasive as to make

reasonable the inference that Congress left no room for the

States to supplement it.” Alternatively, federal law may be in

“irreconcilable conflict” with state law. Compliance with both

statutes, for example, may be a physical impossibility.

Id. at 31 (citations omitted).

Underso-called “conflict preemption,” “[a]state cannot impose common law damages

on individuals for doing what a federal act or regulation authorized them to do.” See, e.g.,

Irving v. Mazda Motor Corp., 136 F.3d 764, 769 (11 Cir. 1998). In this case, the MHA,

th

a federally funded PHA, asserts that Plaintiffs’ claim for “failure to evict” falls within the

doctrine of conflict preemption because such a claim would “at the very least, interfere with

the federally vested discretion granted to PHAs in making eviction decisions by subjecting

PHAs to potential civil money damages if [the discretion granted to PHAs under the

foregoing statutory scheme] were to be used” in any way other than eviction.

The question of implicit conflict preemption was discussed by the United States

Supreme Court in Fidelity Federal Savings & Loan Association v. de la Cuesta, 458 U.S.

141 (1982). In that case, a federal regulation permitted federal savings and loan associations

to include a due-on-sale clause in loan instruments at their option. The defendant federal

savings and loan association exercised its option to include the clause. Plaintiff borrowers

sued the association for damages, and claimed the due-on-sale clause in their loan instrument

was unenforceable under a rule of California common law. The Supreme Court held that the

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federal regulation preempted the California common law because the common law rule

prohibited the exercise of the federally authorized option. Id. at 155. In reaching its

decision, the Supreme Court held that a state common law rule cannot take away the

flexibility provided by a federal regulation, and cannot prohibit the exercise of a federally

granted option. Id.

As discussed above, pursuant to 47 U.S.C. § 1437 and the federal regulations

promulgated thereunder, there is no indication that the federalstatute mandates PHAsto evict

tenants for criminal activities. Rather, from the legislative history, the federal regulations,

and the HUD analysis of the statutory scheme, we conclude that it was the legislative intent

of 47 U.S.C. § 1437 to allow PHAs to use their discretion to determine whether eviction is

necessary under the particular facts presented. If we were to hold, as Plaintiffs suggest, that

the MHA was required to evict Mr. Miller for conduct constituting criminal activity, we

would negate the discretion granted by the statute. Here, the record indicates that the MHA

exercised its discretion after the 1998 stabbing incident between Mr. Miller and Mr. Triplett.

Although the record does not elaborate on the exact steps that the MHA took in response to

the 1998 stabbing incident, the parties agreed that the MHA did conduct an investigation,

and that the MHA placed Mr. Miller on probation for one year as a result of that

investigation. If we were to allow Plaintiffs’ claim for “failure to evict,” such a holding

could result in the MHA being liable for money damages solely because the MHA exercised

its discretion and chose to allow Mr. Miller a second opportunity to conduct himself in

accordance with the rules and regulations of the property. While we concede that the MHA’s

decision ultimately proved unwise, we nonetheless conclude that 47 U.S.C. § 1437 gave it

the discretion to make that choice. In accordance with the Supreme Court’s holding in de la

Cuesta, we conclude that allowing Plaintiffs’ “failure to evict” claim would, in effect,

remove the element of choice authorized under 47 U.S.C. § 1437, and would frustrate the

federal regulatory scheme. Therefore, we hold that Plaintiffs’ theory of recovery is implicitly

preempted by 47 U.S.C. § 1437 and the federal regulations pertaining thereto.

Discretionary Function Exception to Sovereign Immunity

Even if we assume that Plaintiffs’ “failure to evict” claim is not preempted by 47

U.S.C. § 1437, Plaintiffs’ claim is, nonetheless, barred by the discretionary function

exception to sovereign immunity.

It is well settled that local governmental entities are immune from suit except when

a statute explicitly allows them to be sued. See, e.g., Jane Doe v. Coffee Co. Bd. of Educ.,

852 S.W.2d 899, 906 (Tenn. Ct. App. 1992). The TGTLA removes this immunity only in

certain enumerated situations. Tenn. Code Ann. § 29-20-205 (Supp. 2010) removes the

sovereign immunity of governmental entities for injuries proximately caused by the

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negligence of an employee acting within the scope of his or her employment; however, there

are several exceptions to this removal of sovereign immunity. The exception that is

applicable to the instant case provides that immunity is not removed if the injury arises out

of “the exercise of performance or the failure to exercise or perform a discretionary function,

whether or not the discretion is abused.” Tenn. Code Ann. § 29-20-205. In Limbaugh v.

Coffee Med. Ctr., 59 S.W.3d 73 (Tenn. 2001), our Supreme Court discussed the discretionary

function exception to the TGTLA as follows:

This exception immunizes local governmental entities from

liability for an employee's negligence if the injury arises out of

“the exercise or performance or the failure to exercise or

perform a discretionary function, whether or not the discretion

is abused.” Essentially, the discretionary function exception

prevents the use of tort actions to second-guess what are

essentially legislative or administrative decisions involving

social, political, economic,scientific, or professional policies or

some mixture of these policies. Doe v. Coffee County Bd. of

Educ., 852 S.W.2d 899, 907 (Tenn. Ct. App. 1992) (citing

United States v. Gaubert, 499 U.S. 315, 323, 111 S. Ct. 1267,

113 L. Ed.2d 335 (1991)). The rationale for preserving

immunity for certain acts performed by governmental entities is

that the government should be permitted to operate without

undue interference by the courts, as courts are often

“ill-equipped to investigate and balance the numerous factors

that go into an executive or legislative decision.” Bowers v. City

of Chattanooga, 826 S.W.2d 427, 431 (Tenn. 1992) (quoting

Wainscott v. State, 642 P.2d 1355, 1356 (Alaska 1982)); see

also Carlson v. State, 598 P.2d 969, 972 (Alaska 1979).

Limbaugh, 59 S.W.3d at 84-85 (emphasis added).

In Bowers v. City of Chattanooga, 826 S.W.2d 427 (Tenn. 1992), our Supreme Court

explained that “discretionary function immunity attaches to all conduct properly involving

the balancing of policy considerations. Therefore, there may be occasions where an

‘operational act’ is entitled to immunity, where, for instance, the operational actor is

properly charged with balancing policy considerations.” Id. at 431 (emphasis added). In

Doe v. Coffee Co. Bd. of Educ., 852 S.W.2d 899, 907 (Tenn. Ct. App. 1992), this Court

construed Tenn. Code Ann. § 29-20-205(1) to prevent the use of tort actions to challenge

policy. The question, then, is whether eviction decisions by PHAs constitute discretionary

functions.

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As discussed above, the legislative intent of 47 U.S.C. § 1437 vests PHAs with

discretion in deciding whether to evict its tenants. Other statutes also indicate that eviction

decisions made by PHAs constitute discretionary functions. Tenn. Code Ann. § 13-20-

104(a)(9) provides that a housing authority has the power to “[a]ct as agent for the federal

government in connection with the acquisition, construction, operation and/or management

of a housing project or any part thereof.” Likewise, 24 C.F.R. §966.4(l)(5)(vii)(B) clearly

vests PHAs with discretion to determine whether to evict a tenant based on the type of

criminal activity, and considering “all circumstances.” See supra note 3. Consequently,

when determining whether to evict a tenant, a PHA is performing a function delegated to the

PHA by the federal government. In delegating this discretionary function to local PHAs, the

federal government recognizes that a local PHA is better able to consider the individual facts

and circumstances and to make a determination regarding occupancy and evictions. As

stated by the Supreme Court in Rucker, “[t]he statute does not require the eviction of any

tenant who violated the lease provision. Instead, it entrusts that decision to the local public

housing authorities, who are in the best position to take account of [all relevant

circumstances].” Rucker, 533 U.S. at 133-34.

This Court has also recognized that eviction decisions by PHAs involve federally

granted discretionary decision making, to-wit:

Among the powers granted a Housing Authority under this Act

[Tenn. Code Ann. §§13-801 et seq., 13-804(8)] is the power to

act as agent for the Federal Government in connection with the

acquisition, construction, operation and/or management of a

housing project or any part thereof (13-804 (8)). Under said

statute (13-812) the powers and duties of the Housing Authority

with respect to rentals and tenant selection are regulated and

restricted. Thus, it is seen that the operation of a housing

project by the plaintiff is the exercising of a governmental

function and it follows that, in the exercise of this function, the

agents of said authority cannot act arbitrarily or capriciously in

the renting of space to tenants or in the eviction of tenants from

the project.

Nashville Hous. Auth. v. Taylor, 442 S.W.2d 668, 672 (Tenn. Ct. App. 1968) (emphasis

added).

In Bowers, our Supreme Court adopted a planning-operational test, under which it is

the “nature of the conduct” (i.e., the decision-making process), as opposed to the “status of

the actor,” that governs the question of whether the exception applies. Bowers, 826 S.W.2d

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at 430-31. Under this test, decisions that rise to the level of planning or policy-making are

considered discretionary acts that do not give rise to tort liability. On the other hand,

decisions that are merely operational are generally not considered discretionary acts and,

therefore, do not trigger immunity. Id. However, the Bowers Court went on to explain that,

“there may be occasions where an ‘operational act’ is entitled to immunity, where, for

instance, the operational actor is properly charged with balancing policy considerations.”

Id. (emphasis added); see also United States v. Gaubert, 499 U.S. 315, 326 (Tenn. 1991).

As discussed above, a PHA’s decision concerning whether to evict a tenant after allegations

of criminal activity clearly involves fact-specific considerations of “all circumstances,” and

requires a “balancing of policy considerations.” Bowers, 826 S.W.2d at 430-31; 24 C.F.R.

§ 966.4(l)(5)(vii)(B).

Although the distinction between decisions by governmental actors that involve

“balancing policy considerations,” and those that are truly operational in nature is admittedly

murky, in Bowers, the Court considered the distinction under the facts of that case and held

that, “[t]here being a clear plan and policy of the State of Tennessee and City of Chattanooga

to provide safe passage across an immediate street toward a child’s destination, we find that

a decision left to a school bus driver on where to stop at a particular intersection is an

operational act not within the discretionary function exception.” Bowers, 826 S.W.2d at 432.

In its brief, the MHA, relying upon the Bowers holding, asserts that a bus driver’s decision

to stop or not stop at an intersection is clearly operational, whereas decisions by PHAs as to

whether to evict a tenant involve fact-specific investigations and discretionary balancing of

federal policies, thus rendering such activities “planning” in nature. We agree.

If PHA eviction decisions involving all criminal activity merely followed a predetermined, mandated policy (i.e., such as the mandatory eviction for manufacturing

methamphetamine,see 24 C.F.R. § 966.4(1)), then these decisions would be truly operational

in nature. However, in determining whether to evict tenants after allegations of criminal

activity, PHAs must balance the effect of that decision on the tenant with the potential effect

on other tenants of declining eviction of the offending tenant. This decision requires

investigations into the allegations, and consideration of the mission of HUD. Consequently,

the decision to evict (for other criminal activity) involves “balancing policy considerations”

because the decision must be made in light of the individual circumstances of each case

(except for the narrow exception of methamphetamine manufacturing, which requires

mandatory eviction). Therefore, we hold that the MHA’s decision whether to evict Mr.

Miller was a “planning” level decision to which the discretionary function exception to

sovereign immunity applies.

Even were we to assume that the MHA’s decision whether to evict was operational

in nature, the discretionary function exception would still apply to the specific facts of this

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case. Where an operational decision-maker acts reasonably in implementing an established

policy and such actions further the underlying policy, then the entity’s immunity is not

abrogated. Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 85 (Tenn. 2001). It is when such

an operational decision-maker does not “act reasonably but pursues a course of conduct that

violates mandatory regulation [that] the discretionary function exception will not apply

because the action would be contrary to the entity’s established policy.” Id. In Limbaugh,

a nursing home resident’s conservator filed suit against the Coffee Medical Center, a

governmental entity,seeking damages for injuriesresulting from a nursing home employee’s

alleged assault on the resident. Limbaugh, 59 S.W.3d at 76. The Court determined that the

nursing home had implemented a specific policy regarding discipline of employees, but had

failed to follow its own policy. Id. at 85. The Court held that “the nursing home’s broad

discretion to implement a policy governing the questions of whether and how to discipline

combative employees is indeed a policy determination that cannot give rise to tort liability.”

Id. at 86. However, because the nursing home had negligently failed to follow its prescribed

guidelines, the discretionary function exception did not apply and governmental immunity

was waived. Id. at 85-86.

Limbaugh is distinguishable from the case at bar. Here, the undisputed facts establish

that the MHA acted consistently with its federal mandate, by exercising its discretion in

evaluating the circumstances involved in the 1998 stabbing incident. Although, as noted

above, the record does not fully outline the extent or nature of the MHA’s inquiry into the

1998 incident, the parties do not dispute the fact that the inquiry occurred. Moreover,

following its inquiry, the MHA further exercised its discretion in placing Mr. Miller on

probation. Because the MHA reasonably implemented its federally mandated discretion,

Limbaugh would not abrogate governmental immunity even if the eviction determination

was an operational level decision.

For the foregoing reasons, we reverse the trial court’s order, denying summary

judgment in favor of the MHA. Because Appellees’ cause of action for “failure to evict” is

preempted under 42 U.S.C. § 1437, and because the Appellant retains sovereign immunity

under the discretionary function exception to the TGTLA, we remand the case for entry of

summary judgment in favor of the MHA, and for such further proceedings as may be

necessary and consistent with this Opinion. Costs of this appeal are assessed against the

Appellees, Cheryl Brown Giggers, Charles C. Brown, Jr., Angela Brown, Joann Fisher, and

Scruggs Security and Patrol, for which execution may issue if necessary.

_________________________________

J. STEVEN STAFFORD, JUDGE

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