United States District Court, M.D. Tennessee, Nashville Division
OPINION AND ORDER
CARAM STEEH, UNITED STATES DISTRICT JUDGE [*]
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.
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.
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.
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.
Standard of Law
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).
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.
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" ...