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Bishop v. Hamya, Inc.

United States District Court, M.D. Tennessee, Nashville Division

August 17, 2017

MARTIN BISHOP, Plaintiff,
v.
HAMYA, INC. Defendants.

          OPINION AND ORDER

          GEORGE CARAM STEEH, UNITED STATES DISTRICT JUDGE [*]

         This negligence action based on diversity jurisdiction arises out of a tragic accident: plaintiff Martin Bishop was assaulted outside a convenience store and left unconscious and prone in the middle of the street, when a tow truck, driven by an employee of defendant Metropolitan Government of Nashville and Davidson County ("Metro"), ran over him causing catastrophic injuries. Plaintiff alleges that Metro is liable for failing to maintain adequate lighting on the street and is vicariously liable for the negligence of its tow truck driver. Now before the court is Metro's motion for partial judgment on the pleadings as to the inadequate lighting theory of liability only. Previously, this court dismissed the same claim brought against the public utility. For the same reasons that the public utility company was previously dismissed, Metro is likewise entitled to partial judgment on the pleadings.

         I. Procedural Background

         The facts of this case are well known to the parties and were set forth in detail in the prior order of the court dismissing the public utility. Accordingly, here the court summarizes only the procedural background pertinent to the limited motion now before the court.

         In the Amended Complaint, plaintiff alleges the same claims against Metro and the public utility, alleging that one of the two owned, controlled, and maintained the street lighting in question. Previously, the public utility filed a motion to dismiss claiming, among other defenses, that it owed no duty of care to maintain streetlights to the plaintiff. In its thoughtful and thorough opinion, the court observed that Tennessee courts have not definitively determined whether a municipality or its public utility owes a duty to the public to install, maintain, and repair street lights on a roadway, and then proceeded to canvas precedent from various jurisdictions in order to make an Erie guess as to how the Tennessee Supreme Court would resolve the issue. The court found that the majority view was that a public utility or municipality owes no duty to the public for missing or inoperable street lights, and upon an examination of public policy reasons supporting such a viewpoint, the court adopted the majority view and held that the public utility owed no duty to the public and could not be liable for negligence.

         In the motion now before the court, Metro argues that applying the same reasoning which justified the dismissal of the public utility, it is entitled to dismissal on the negligence claim as it relates to the allegedly inadequate lighting. Metro does not seek dismissal for the alleged negligence of its tow truck driver. In response, plaintiff relies on his brief in opposition to the public utility's motion to dismiss, apparently conceding that his negligence claims based upon a theory of inadequate lighting against the public utility and Metro should be analyzed in the same manner.

         II. Standard of Law

         The same standard applies to Rule 12(c) motions as motions to dismiss under Rule 12(b)(6). Ross, Brovins & Oehmke, P.C. v. Lexis Nexis Group, 463 F.3d 478, 487 (6th Cir. 2006). Rule 12(b)(6) allows the Court to make an assessment as to whether the plaintiff has stated a claim upon which relief may be granted. Under the Supreme Court's articulation of the Rule 12(b)(6) standard in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-56 (2007), the court must construe the complaint in favor of the plaintiff, accept the allegations of the complaint as true, and determine whether plaintiff's factual allegations present plausible claims. "'[N]aked assertions' devoid of 'further factual enhancement'" are insufficient to "'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557, 570). To survive a Rule 12(b)(6) motion to dismiss, plaintiff's pleading for relief must provide "'more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.'" D'Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir. 2014) (quoting Twombly, 550 U.S. at 555). Even though the complaint need not contain "detailed" factual allegations, its "'factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the allegations in the complaint are true.'" New Albany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046, 1051 (6th Cir. 2011) (quoting Twombly, 550 U.S. at 555).

         III. Analysis

         In the Amended Complaint, plaintiff alleges that Metro's governmental immunity is removed pursuant to Tenn. Code Ann. §§ 29-20-202, 203, 204 and 205. In the motion now before the court, Metro argues that plaintiff's Section 29-20-202 and -204 claims should be dismissed. The court first addresses the Section 202 claim. Section 202 provides:

(a) Immunity from suit of all governmental entities is removed for injuries resulting from the negligent operation by any employee of a motor vehicle or other equipment while in the scope of employment.

Tenn. Code Ann. § 29-20-202. In its prior order dismissing the public utility, the court found that the utility could not be liable under Section 202 because the tow truck driver was employed by Metro, not the utility. Obviously, this analysis does not justify dismissal of Metro, and the court shall not dismiss the Section 202 claim.

         Based upon Metro's discussion in its brief, it appears that Metro may have meant to seek dismissal of plaintiff's Section 203 claim. Section 203 provides:

(a) Immunity from suit of a governmental entity is removed for any injury caused by a defective, unsafe, or dangerous condition of any street, alley, sidewalk or highway, owned and controlled by such governmental entity. "Street" or "highway" ...

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