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February 3, 2011


The opinion of the court was delivered by: Gary R. Wade, J., delivered the opinion of the Court, in which Cornelia A. Clark, C.J., Janice M. Holder, William C. Koch, Jr., and Sharon G. Lee, JJ., joined.


After being injured when he jumped out of the path of a front-end loader owned by355 a governmental entity and operated by its employee, the plaintiff filed suit, claiming that the employee either was negligent in his operation of the equipment or had acted intentionally and that the governmental entity was liable under the Governmental Tort Liability Act. The trial court entered judgment for the plaintiff against the governmental entity and the Court of Appeals affirmed. The governmental entity sought permission to appeal, arguing first that the employee had acted outside the scope of his employment and, secondly, that he had committed an assault against the plaintiff, either of which would preclude liability under the Act. Although we hold that the employee's conduct fell within the scope of his employment, his operation of the equipment constituted the intentional tort of assault rather than negligence. The governmental entity cannot, therefore, be held liable under the Act absent proof of its negligent supervision. The judgment of the Court of Appeals is reversed as to the governmental entity, and the cause is remanded to the trial court for entry of judgment against the employee.

On August 19, 2004, Dalton Reb Hughes (the "Plaintiff") and wife Sandra Hines Hughes filed suit under the Governmental Tort Liability Act ("GTLA"), Tenn.Code Ann. §§ 29-20-101 to -408 (2000 & Supp. 2010), against the Metropolitan Government of Nashville and Davidson County, Tennessee ("Metro") and Frank Archey (the "Defendant"), an employee of the Metro Public Works Department, for injuries he sustained on Friday, October 17, 2003. The Plaintiff, who was employed by the Metro Fire Department, alleged that the Defendant, while returning his front-end loader to a Public Works facility at the end of the day, negligently revved the engine and dropped the bucket of the front-end loader to the pavement, thereby making a loud, scraping noise and causing the Plaintiff, who was walking with his back to the Defendant, to jump awkwardly over the guardrail in an attempt to get out of the way. The Plaintiff, who injured both shoulders and both knees in the fall, ultimately had rotator cuff surgery and a double knee replacement. He incurred medical bills in excess of $80,000 and missed work for which he would have received wages in the sum of approximately $23,500.

The Plaintiff later amended his complaint to alternatively allege that the Defendant had committed an intentional act, causing the Plaintiff "to believe that [the front-end loader] was a [runaway] piece of equipment," which constituted "willful and gross negligence." In response to the Plaintiff's amended complaint, Metro filed a crossclaim against the Defendant seeking to recover the lost wages and medical expenses it had paid to the Plaintiff and also seeking judgment for any further loss. Metro also filed a counterclaim against the Plaintiff asking for subrogation as to any lost wages or medical payments recovered from the Defendant.

Trial Testimony

At trial, the Plaintiff testified that when he was walking to his vehicle at the end of his shift, he heard the "revving of [an] engine" and saw a front-end loader as it approached him from behind at "a high rate of speed." When he looked around to determine how he would get out of the way, "the bucket dropped and made a scraping noise across the asphalt [like the driver] was almost fixing to run over us." The Plaintiff stated that he then attempted to leap over the guardrail but struck the top with his knee and somersaulted to the pavement below. He recalled that when he looked up, he saw the Defendant "sitting in the loader with a big grin on his face." When the Defendant realized that the Plaintiff was hurt, however, he stepped 356 off the loader and said, "I'm sorry, ... all I meant to do was scare you, ... I didn't mean to hurt you."[*fn1] The Plaintiff testified to seeing the marks made by the front-end loader's bucket after the accident and described them as continuous in nature. The Plaintiff, who had known the Defendant from years earlier when the Defendant's mother babysat for his daughter, stated that he had not seen the Defendant in twenty-five or twenty-six years.

Tommy Goad, who was walking alongside the Plaintiff, testified that he heard a noise as the Defendant approached the two men from behind but did not look back because there appeared to be plenty of room for a vehicle to pass on his left; he pointed out, however, that he had not seen the front-end loader, as had the Plaintiff, before he heard a "sudden ... different kind of sound, like something hit pavement." After glancing to his left, Goad heard the Plaintiff "hollering out" as he lay on the ground on the other side of the guardrail. He recalled the Plaintiff exclaiming, "I thought I was going to get run over!" He stated that the loader stopped at an angle in the access road only a foot or two from where the Plaintiff had been walking. According to Goad, the Defendant approached the Plaintiff and apologized, saying, "I didn't mean for you to get hurt. I was just trying to scare you."

Daryl Pulley, also a Fire Department employee, was an additional witness to the incident. He heard the engine of the front-end loader "revving up or at a higher RPM," and saw the bucket drop for some "twelve to twenty feet [to] ... within inches [of] where [the Plaintiff's] feet would have been ... before he went over the rail." He described the scraping sound as continuous. Pulley saw the Plaintiff have his feet "taken ... from under him" as he disappeared on the other side of the rail. He stated that when he arrived at the scene of the accident, he observed "skid marks" or "indentations in the concrete itself ... where metal had rubbed the pavement." Pulley described the Plaintiff as "hurting" and "noticeably shaken up" after the fall. He recalled that the Defendant parked his loader, "kind of chuckled," put his arm around the Plaintiff, and explained that he was "just trying to scare him" and "wouldn't hurt him for anything in the world."[*fn2] Pulley remembered that the Plaintiff responded, "leave me alone, get away from me."

Pat Armstrong, a Fire Department employee who was walking with Pulley, corroborated the testimony of the witnesses testifying for the Plaintiff. He also described the scraping noise as continuous and recalled that the Defendant apologized, explaining that he "was just joking," "didn't mean to do that," and "was just trying to scare you all."

Charles Wayne Vic, an assistant fire chief, also testified for the Plaintiff. He was leaving work when he saw several of the Fire Department employees standing around the Plaintiff. After he learned what had happened, he sought out Jerry Jones, a Public Works supervisor, who was talking to the Defendant. Vic overheard Jones say to the Defendant, "I have told you and told you about that," before he abruptly ended the conversation, realizing that Vic was within earshot.

357 John David Pope, an employee in the Public Works Department, testified for the Defendant, whom he described as a friend he had known for eighteen years. He recalled that on the day of the accident, he was standing some thirty yards away in the employee parking lot when he heard "a little thump on the ground" as the Defendant came through the gate to the access road and then saw the Plaintiff jump over the guardrail. He stated that there was "a little dip" in the access road that caused the loader to "kind of bounce." However, Pope, who had operated a front-end loader on several occasions, acknowledged that he had never made such a noise while driving on that part of the access road. He also admitted that he was not in a position to hear any of the conversation that subsequently took place between the Plaintiff and the Defendant.

The Defendant, who was employed as a heavy equipment operator, had operated the front-end loader for some fifteen to sixteen years by the time of trial in 2008. He had for years regularly driven the access road as he returned to the Public Works facility, and he testified that a guardrail had been added to the road when the fire department moved in two or three weeks prior to the accident. The Defendant recalled that as he drove on to the access road off of Charlotte Avenue, his speed was between six and eight miles per hour and he was operating the vehicle in first gear, "wide open, throttle hold to the floor," which would allow the machine to go up to a maximum speed of eight miles an hour. While acknowledging that he was familiar with the road and "revving it up pretty good," he claimed that when he saw two individuals, whom he was able to later identify as the Plaintiff and Goad, walking by the guardrail to his right, he moved to the left side of the road. He stated that he was thirty to thirty-five yards away from the Plaintiff. The Defendant explained that when he hit a dip, his bucket, which was set at "bottom-out status" or about three to nine inches off the ground, struck the pavement and "bounced up and hit and bounced up again" two or three times. He testified that he did not know the identity of the individual who had jumped over the guardrail until he "drove up beside him."

The Defendant, who insisted that he was not engaging in horseplay, denied saying anything to the Plaintiff like, "I was just messing with you." He testified that when he stopped his vehicle, he asked the Plaintiff if he was okay and explained that he did not intend to scare him. He claimed that he smiled only when the Plaintiff cursed him. The Defendant also denied that his supervisor had cautioned him about his behavior immediately after the incident, but did admit that he was suspended for a day without pay and lost some other benefits as a result of his conduct. He maintained that Jerry Jones was not at the Public Works facility on the day of the accident, implying that Vic was mistaken in his testimony. He also testified that he saw Goad a few days after the incident and informed him that he did not intend to hurt or frighten the Plaintiff. The Defendant stated that he and the Plaintiff had always maintained a friendly relationship and that some twenty-five years earlier, the Plaintiff lived less than a quarter-mile away from him and occasionally took him to truck pulls and car shows.

During cross-examination, the Defendant conceded that he had earned low marks in the safety category during an evaluation. He also admitted having received a "not acceptable" rating on attendance, observance of work hours, and compliance with the rules. The Defendant insisted, however, that he had intended neither to scare nor to hurt the Plaintiff and claimed that he had applied his brakes 358 and slowed the loader by about two miles per hour as he approached the Plaintiff and Goad. When asked by the Plaintiff's counsel why he had not mentioned slowing down in his deposition, the Defendant claimed that it was because he had not been asked the question. He admitted that the access road was about nineteen feet wide and the bucket on the front-end loader approximately eight feet, five inches in width, giving him "over [ten] feet to spare" if he were over in the left lane. When questioned by counsel as to why the marks on the asphalt were in the middle and to the right of the road, as opposed to the left, the Defendant contended that he was attempting to avoid not only the Plaintiff and Goad, who were on the right side of the road, but several people who were on the left side of it, a claim that he had failed to make in a prior statement. The Defendant described the incident as entirely accidental.

At the conclusion of the proof, the trial court first found that Metro was not guilty of negligently supervising the Defendant. Secondly, the trial court determined that the Defendant was acting within the scope of his employment at the time the incident occurred, that he had breached his duty of care, and that his conduct had caused the Plaintiff's injuries: "He was aware of the dip" in the road and, "[n]onetheless, he approached it without slowing down." The trial court made further findings as to the intent of the Defendant as it related to the GTLA:

[I]t [is] clear to me that Mr. Archey intended to carelessly drive this vehicle over that little bump, making the noise and commotion that was going to be associated with it.

The fact that he intended to drive the vehicle in a negligent or careless manner does not morph this into the classic intentional tort of assault. And it conceivably could be argued that it [is] reckless, but I don't think that recklessness is included by this statute.... [a]nd it seems clear to me that even finding that Mr. Archey intended to be careless and was even reckless in what he was doing to make this noise, to make a commotion as he came up behind these pedestrians, not knowing who it was, I think it [is] clear, too, he didn't know who was walking in front of him, he is still covered by this section of the statute and immunity is removed and Metropolitan Government is responsible.

[The Defendant] intended to do this. And I think I know what [is] going on. It [is] Friday afternoon, and from Mr. Archey's testimony, I get a taste of his personality, and they use the term horseplay and cutting up and he was going to do something very foolish and cut up as he was coming through there and rev up his front[-]end loader and bounce it through this little spot and make a lot of noise.... [I]t seems as though the noise and the actions of Mr. Archey really took place several feet, at least, behind where [the Plaintiff and Goad] were walking. It [is] still noisy enough that everybody in the whole area could hear what was going on.... [I]t is foreseeable that by causing that type of noise and commotion, that somebody might be startled, frightened, shocked,... trip, and be hurt. For that reason the negligent person is responsible for it.

(Emphasis added).

Because the trial court concluded that the Defendant was acting within the scope of his employment, it determined that he was immune from suit and that Metro was "responsible as the principal for 359 the servant's actions" under the GTLA.[*fn3] The trial court found that the Plaintiff had "incurred damages and injuries that actually... exceed[ed]" the statutory cap and held Metro liable for $250,000. The court determined, however, that Metro was entitled to a set-off in the amount of $104,000 for payments it had made up to that point. Counsel for Metro then specifically asked for a clarification as to the trial court's "factual determination as to whether [the Defendant] intended to come through ... and make noise and intended to come through there and scare" the pedestrians on the access road. In response, the trial court observed

that [the Defendant] intended to operate the vehicle carelessly in such a manner as to make ... noise as he came over that dip and crash the bucket.... [I]f he was trying to ram into [the Plaintiff], I think that's a different situation because then it's not negligence by any stretch of the imagination. It's an intent to cause harm.... That's an intentional action that I think is different and apart from negligent operation.

Although the Court of Appeals affirmed the judgment, it ruled that the trial court had erroneously interpreted section 29-20-202 of the GTLA when it held that the section did not require a finding of negligent conduct and observed that if the General Assembly

had wanted to change that and say except if somebody is operating it intentionally or recklessly or grossly negligent or wanted to add[] any type of exception to it, I presume that they would have done so. They intended to cover every operation of motor vehicles and equipment by government employees as ... having immunity removed.

Hughes v. Metro. Gov't of Nashville & Davidson Cnty., No. M2008-02060-COA-R3-CV, 2010 WL 424240, at *11 (Tenn.Ct. App. Feb. 4, 2010). The trial court had further stated

that even finding that [the Defendant] intended to be careless and was even reckless in what he was doing to make this noise, to make a commotion as he came up behind these pedestrians, not knowing who it was, ... he is still covered by this section of the statute and immunity is removed and Metropolitan Government is responsible.

The Court of Appeals, while ruling that the trial court had erred in this latter observation because immunity was removed only upon proof of negligent conduct, pointed out that the Plaintiff was not entitled to recovery under the GTLA if the Defendant had acted intentionally. Id. Although Metro contended on appeal that the Defendant had intended to frighten the Plaintiff, thereby committing an intentional assault, the Court of Appeals held that the mere intent to frighten, in contrast to ...

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