Textualism, Governmental Immunity, and the Common Law at the Tennessee Supreme Court

Writing for a unanimous Tennessee Supreme Court in Lawson v. Hawkins County, Justice Sarah Campbell explained that Tennessee’s Governmental Tort Liability Act waived governmental immunity from suit only for negligent acts and not for grossly negligent or reckless ones too.[1]

On February 22, 2019, “a mudslide washed away part of Highway 70 on Clinch Mountain in Hawkins County, Tennessee.”[2] A driver called 911 around 12:58 a.m. to notify authorities about it, and a deputy arrived on the scene about 15 minutes later. Despite joking with the dispatcher about the dangers the blocked road posed to drivers, neither the deputy nor the dispatcher suggested closing the road. At 1:46 a.m., Steve Lawson hit the “rock embankment,” flipped his car down the mountain, and remained trapped there for eleven hours. Sadly, he died before rescuers could reach him.[3] Only after a second car hit the embankment did the deputy on scene request for the road to be closed.

Mr. Lawson’s widow brought a wrongful death action against Hawkins County, the Hawkins County Emergency Communications Districts (ECD-911), and the Hawkins County Emergency Management Agency (EMA), alleging “grossly negligent and reckless conduct” by these entities and their employees.[4]

All three entities argued that Tennessee’s Governmental Tort Liability Act (GTLA) removed their immunity only for negligent conduct and that they remained immune from suit for grossly negligent or reckless conduct. They also argued that the common law public-duty doctrine, which “shields governmental entities and their employees from suits for injuries that are caused by the public employee’s breach of a duty owed to the public at large,”[5] barred negligence claims against them too.

The trial court agreed and dismissed the case. The Tennessee Court of Appeals, however, reversed. So the Tennessee Supreme Court agreed to hear the case to resolve the issue of whether Tennessee’s GTLA “allows a plaintiff to sue a governmental entity for conduct that exceeds mere negligence.”[6]

In reversing the Court of Appeals, the Tennessee Supreme Court held that it does not. Justice Campbell, writing for the court, explained that in “interpreting statutory provisions,” the court’s role is “to determine how a reasonable reader would have understood the text at the time it was enacted.”[7] She elaborated that the court “undertake[s] that task by considering the statutory text in light of well-established canons of statutory construction.”[8]

She explained that when “a statute uses a common-law term without defining it,” such as negligence, a court must “assume that the legislature adopted the term’s common-law meaning unless a different sense is apparent from the context, or from the general purposes of the statute.”[9] And because Tennessee’s legislature did not define “negligence” in the GTLA, she explained that its common-law meaning of a “want of ordinary care” controls, which is a distinct concept from gross negligence or recklessness.

Moreover, she explained, since Tennessee’s GTLA was “in derogation of [or contrary to] the common law” rule that “the State and its political subdivisions were generally immune from suit under the doctrine of sovereign immunity,” the court must interpret it “strictly” and confine it to its “express terms.”[10]

Given these facts, she explained that the GTLA “removes immunity only for ‘negligent’ employee acts.”[11]

She also employed a “well-settled canon for statutory construction” to reject plaintiff’s argument that the Tennessee legislature had waived immunity for some of the defendants under a different, broader statute. She said, “[W]here a conflict is presented between two statutes, a more specific statutory provision takes precedence over a more general provision.”[12] She also brushed aside concerns about the application of the common law public duty doctrine and certain exceptions to it.

Justice Holly Kirby joined the court’s analysis and holding but wrote a separate concurrence “to highlight an issue not addressed in the majority opinion—whether [the court] should continue to apply the common law public duty doctrine and related special duty exception in cases where the legislature has addressed the issue of immunity by statute.”[13]

She said that “layering the common law public duty doctrine and the special duty exception on top of the GTLA and other immunity statutes meant that plaintiffs in lawsuits alleging misconduct by employees of governmental entities must navigate a labyrinth of confusing and at times conflicting statutory and common law standards . . .”[14] While she agreed that the court is “bound to interpret the GTLA according to its text,” she wanted to make clear that the court is “not bound to follow common law precedent, particularly where there have been changes in the law, . . . changing conditions, . . ., or where the precedent proves unworkable.”[15]

Justice Kirby said that while “adhering to past decisions is the preferred course, our oath is to do justice, not to perpetuate error.”[16] While these issues weren’t briefed in this case, she hoped that in “a future case,” the court could “look squarely at whether [it] should continue to adhere” to its prior interpretations and applications of these doctrines or whether it should “discontinue application of those common law principles in deference to the statutes governing immunity.”[17]

 

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