A recent case points out how the combination of two statutes can give rise to a horrible injustice not intended by the drafters of either.

One legal maxim seared in the memory of every law student is rex non potest peccary — the king can do no wrong. One can debate the wisdom of applying this maxim in a country founded partly because the King of England was doing his subjects in the Colonies wrong. Still, sovereign immunity floated across the Atlantic to become the general rule in the new United States of America.

One by one, states understood that some level of government accountability to their citizens other than at the ballot box was just, and they began to create exceptions to the law of sovereign immunity. Tennessee’s Constitution includes Article 1, Section 17, the last sentence of which allows the legislature to define the circumstances and manner under which the state is subject to lawsuits.

In 1984, the legislature created the Tennessee Claims Commission to “hear and adjudicate certain monetary claims against the state of Tennessee.”¹ This legislation abolished sovereign immunity in certain types of tort cases, such as when the state “[n]egligently created or maintained dangerous conditions on state controlled [sic] real property.”² A person who alleges a premises liability claim against the state must bring the action before the Claims Commission, where a Claims Commissioner hears the claim.

So, when Ms. Gordon’s child was injured at a state park, and there was evidence to conclude that the state had actual knowledge of the condition causing the injury, she filed a premises liability claim in the Claims Commission alleging gross negligence. The state in Gordon v. State of Tennessee asserted that the Claims Commission had jurisdiction only involving allegations of negligence, not those asserting gross negligence.³ The Tennessee Court of Appeals agreed with the state, saying “[s]ection 9-7-307(a)(1)(C) … only waives the state’s immunity for negligently created or maintained dangerous conditions on state-owned property.”⁴ In doing so, it relied in part on the recent decision in Lawson v. Hawkins County,⁵ where the Tennessee Supreme Court ruled that the removal of immunity under the Tennessee Governmental Tort Liability Act⁶ for certain negligent conduct by local governments did not remove immunity when gross negligence or recklessness was alleged.⁷

Did Ms. Gordon’s lawyers mess up? Negligence is the failure to use ordinary care. Gross negligence is aggravated negligence.⁸ You cannot have aggravated negligence without negligence. So, couldn’t Ms. Gordon and her child have obtained justice by pleading simple negligence? And can’t every future claimant avoid the result in this case by merely removing the word “gross” from the complaint and suing for plain ole negligence?

Nope. Here is the problem: recall that Ms. Gordon’s child was injured at a state park. Many activities in state parks fall within the limited liability provisions created by what is commonly called the “recreational use statute.”⁹ Those injured on land used for “recreational activities” cannot sue the landowner, lessee, occupant or person in control of the land absent proof of gross negligence or willful or wanton conduct.¹⁰ Because Ms. Gordon’s child was injured while swimming on state land (“a recreational activity”), she and her daughter had no legal recourse unless they could prove gross negligence or more. But, if they alleged or proved gross negligence, they had no right to bring a claim against the state in the Claims Commission because the legislature waived sovereign immunity only for negligence, not gross negligence.

Thus, Tennessee has its version of Joseph Heller’s Catch-22. As a state or local government landowner, you are not liable for your simple negligence if injuries occur on land falling within the recreational use statute’s scope. You are not liable for gross negligence because you are immune from gross negligence claims under the Board of Claims Act. The result: 1+1=0 (immunity for gross negligence plus liability for only gross negligence equals no recovery).

Tennessee has 59 state parks, totaling several hundred thousand acres.¹¹ It has 84 natural areas with even more acreage. Then, think about local governments’ properties for “recreational activities,” such as hiking trails, bicycle trails, athletic fields, swimming pools and many more. There are tens, if not hundreds, of millions of exposures to potential harm each year, some of which are caused by negligence or gross negligence.

Reasonable minds can differ on whether landowners should have limited liability for injuries occurring on land available for recreational activities. But the legislature has determined that they should (absent gross negligence), and that is that.

Reasonable minds can differ on whether state and local governments should have waived the doctrine of sovereign immunity and allowed lawsuits for injuries and death arising from failure to maintain government property properly. But the liability has determined that they should, and that is that.

But how does one conclude, from a public policy standpoint, that a state and local government should be able to avoid responsibility for grossly negligent behavior if the legislature has removed immunity for simple negligence?¹³

The overall purpose of the common law of torts is to encourage responsible behavior by imposing financial consequences for the failure to behave responsibly. One can buy liability insurance to reduce the risk of monetary loss, but theoretically, the insurance marketplace rewards (through lower or stable premiums) those with better practices (and thus fewer losses) and disincentivizes those with poor practices (and therefore more significant losses) by forcing them to incur higher insurance premiums. Simply stated, good behavior — good. Bad behavior — bad.

By deciding that immunity should be waived for negligent conduct in certain circumstances, the legislature has recognized that even “the king” should be held accountable to its citizens in those circumstances. This serves the overall purpose of tort law — to improve public safety by imposing accountability.

But these two statutes, when applied together, not only fail to impose accountability to discourage grossly negligent behavior, they immunize it. The lack of accountability promotes sloppy work, resulting in an increased risk of harm.

I cannot believe our legislature intended this result.

Let me hasten to add I am not blaming the Tennessee Supreme Court for the result in Laxton or the Tennessee Court of Appeals for the result in Gordon. The analysis in each case makes sense to me, given the statutory language the courts had to interpret. My point is that, when read together, the statutes create a severe and, I would like to think, unintended injustice.

It is easy to fix. The legislature needs only to add the following provision to Tenn. Code Ann. § 9-8-307: “As used herein, the word “negligent” shall include both negligent and grossly negligent acts and omissions, as those words are defined in the common law.”¹⁴  That language preserves government immunity for intentional misconduct while creating a legal remedy for injured and deceased persons when the acts of the government employee rise to gross negligence.

So, what do those bringing tort claims against state and local governments do now? If you have a case that does not fall within the recreational use statute but for which immunity has been removed by law, plead simple negligence, regardless of how grossly negligent you think the government employee’s conduct was. Trust me: if you can prove gross negligence, you can prove simple negligence.

If your potential clients’ injuries or death arise in a situation covered by the recreational use statute and their claim is against a state and local government, they have no right to sue the entity. Decline the case and give them their state senator and representative’s contact information.

While you’re at it, you may want to call or write a letter to that senator or representative yourself. |||

JOHN A. DAY practices personal injury and wrongful death law for plaintiffs across Tennessee. He believes that the government plays a vital role in civilized society. He believes civilized societies should encourage accountability in tort for the wrongs of anyone who hurts or kills people. He does not think those beliefs are inconsistent.

NOTES
1. Stewart v. State, 33 S.W.3d 785, 790 (Tenn. 2000). The statutes setting forth the creation of the Board of Claims and the types of claims that may be asserted against the State of Tennessee are found at Tenn. Code Ann. §§ 9-8-301 to 307. In tort cases, the state’s liability is limited to $300,000 per person, $1,000,000 per occurrence. The late, great Justice Henry described governmental immunity as “a cankered, corroded and corrupted area of our law” and “the flaming sword used by cities and counties in Tennessee to banish the innocent victims of their wrongs and deny them their traditional day in court.” Cooper v. Rutherford Cnty., 531 S.W.2d 783, 785 (Tenn.1975).
2. Tenn. Code Ann. § 9-8-307(a)(1)(C).
3. No. W2023-01012-COA-R3-CV, 2024 WL 4456931 (Tenn. Ct. App. Oct. 10, 2024). Those who read the opinion will see the author has not fully discussed the case's progress through the Claims Commission. In the author’s opinion, those details are unnecessary to understand the issue raised in this column.
4. 2024 WL 4456931 at *8.
5. 661 S.W.3d 54 (Tenn. 2023). The Governmental Tort Liability Act is codified at Tenn. Code Ann. §§ 29-20-101, et seq.
6. The Tennessee Governmental Tort Liability Act sets the circumstances under which sovereign immunity granted to local governments is waived. It is codified at Tenn. Code Ann. §§ 29-20-101, et seq.
7. There is an argument that Lawson should not apply to the Claims Commission Act because “the Claims Commission Act is to be liberally construed to affect its remedial purpose. Tenn. Code Ann. § 9-8-307(a)(3)” and the Governmental Tort Liability Act is to be “strictly construed.” 2024 WL 4456931 at * 4. The Court of Appeals rejected that argument. Id.
8. Gross negligence requires a “mental attitude...of indifference to injurious consequences, conscious recklessness of the rights of others.” Lawson v. Hawkins County, 661 S.W.3d 54, 61 (Tenn. 2023) (quoting Craig v. Stagner, 159 Tenn. 511, 19 S.W.2d 234, 236 (1929).
9. The so-called “recreational use statute” is five statutes found at Tenn. Code Ann. §§ 70-7-101 to 105.
10. Tenn. Code Ann. § 70-7-104.
11. Tennessee State Parks. “Find a Park.” www.tnstateparks.com/about/find-a-park.
12. Tennessee Department of Environment & Conservation. “List of Natural Areas.” www.tn.gov/environment/program-areas/na-natural-areas/list-of-natural-areas.
13. Employer immunity for intentional acts by state or local employees is something else altogether. The retention of immunity for state and local governments in such cases is consistent with the law applicable to private employers, which holds that there is no vicarious liability for intentional acts of employees.
14. Adding similar language to Tenn. Code Ann. §§ 29-20-102 will fix this problem in the Tennessee Governmental Tort Liability Act.