County Not Liable Under TGTLA for Decisions Regarding Placement of Police Officers
Recognizing the need to balance the leeway that governmental entities need in order to properly serve the public interest against the fact that governmental entities may occasionally act in ways that are unacceptable and cause harm to citizens, Tennessee adopted the Tennessee Governmental Tort Liability Act (TGTLA) to define when governmental entities are immune from tort liability.
The TGTLA basically says that governmental entities are immune from suit for injuries that arise from the carrying out of a governmental function. However, there are several statutory exceptions to governmental immunity, including where the entity has caused injury through negligence. The Tennessee Attorneys Memo highlights a case recently decided by the Tennessee Court of Appeals where a plaintiff asserted that the County of Marion had been negligent in failing to post a police officer outside the juvenile court and thus the County was liable for damages the plaintiff sustained as a result of being assaulted outside the court.
The primary issue before the Court was whether or not posting a police officer outside the court was considered a “discretionary function” under the TGTLA. While the TGTLA generally removes immunity for governmental entities where their negligence proximately causes personal injury in Tennessee, it allows such entities to retain immunity from suit 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.” Thus, if the decision about where to post a police officer was a discretionary function, Marion County would be immune from liability for any injuries caused by the making of that decision.
The Court of Appeals turned to a prior decision by the Tennessee Supreme Court in Bowers v. City of Chattanooga to determine whether or not the injury in this case arose from the exercise of a discretionary function. Bowers established a “planning-operational” test for determining whether a governmental action or decision would be considered a discretionary function. To summarize this test, the Bowers court stated: “[d]ecisions that rise to the level of planning or policy-making are considered discretionary acts […] while decisions that are merely operational are not considered discretionary acts[…]” To determine whether a decision is a planning or operational one, the court will look to the actual decision-making process itself, not the identity of the decision-maker.
In this case, the Court of Appeals found that in order to station a police officer in a certain location, a request must be made to the Marion County Commission who must then decide whether or not to allocate funds to keep a police officer stationed at a certain spot. If such funds are allocated, the sheriff will then have to decide to hire an officer, who to hire, and where to place them. If the decision is made to place them at the court house, they will have to be placed there and assigned their duties. The Court of Appeals found that under the Bowers standard this process fit the mold of a “planning” process requiring the implementation of a new scheme or creation of a new standard to place an officer at the court house rather than the mold of an “operational” scheme which does not implement a new plan or policy but rather carries out a previously implemented policy or maintains an existing standard. The Court of Appeals thus granted summary judgment to Marion County, holding that it is immune from liability for its decision not to post a police officer outside the juvenile court.
The TGTLA recognizes that governmental entities have to make tough policy decisions, such as where and when to place police officers, that will undoubtedly require them to sacrifice specific protections for the good of the public as a whole. While Marion County would no doubt like to place a police officer on every street corner, it is forced by limited resources to place them where it feels necessary to provide the greatest protection to the entire county. It is important to recognize that although the TGTLA acknowledges that governmental entities do sometimes cause injury by the negligent exercise of their duties and should be held liable. However, potential plaintiffs should be aware that they will have no cause of action against a governmental entity for injuries arising out of an entity’s performance of a “discretionary function.”
Sources: Rheal v. Ireland, 34 TAM 41; T.C.A. section 29-20-205; Bowers v. City of Chattanooga, 826 S.W.2d 427, 430-431 (Tenn. 1992).
