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Siler v. Scott

Court of Appeals of Tennessee, Knoxville

May 30, 2019

LESTER EUGENE SILER ET AL.
v.
CHARLES SCOTT ET AL.

          Session January 16, 2019

          Appeal from the Circuit Court for Campbell County No. 12792 Paul G. Summers, Senior Judge [1]

         This case arises out of an incident in 2004 when five Campbell County deputy sheriffs went to the plaintiffs' residence. The officers ordered the wife of Lester Eugene Siler, and his son, Dakota Siler, to leave the house. The deputies then proceeded to beat and torture Mr. Siler for more than two hours in an attempt to get him to sign a search warrant. Their efforts were to no avail. They arrested Mr. and Mrs. Siler and charged them at the jail with offenses. These charges were ultimately dismissed. Subsequently, plaintiffs sued the five deputies. In addition, the suit named as defendants, Chief Deputy Charles Scott, Sheriff Ron McClellan, and Campbell County. The trial court granted separate motions to dismiss filed by Scott and McClellan, finding them to be immune from suit. Following a lengthy delay, a jury trial took place in 2016. At the beginning of the trial, the defendants admitted liability on all of plaintiffs' claims. The jury awarded Lester Siler a total of $90, 000 against the individual defendants, and $10, 000 against Campbell County. The trial court suggested, and Campbell County accepted, an additur to the awards against the county, increasing them to $25, 000. In a pre-trial ruling, the court held this amount to be the maximum liability against the county for each plaintiff, based on its ruling that sovereign immunity was waived but only to the extent of the $25, 000 sheriff's surety bond. The jury awarded zero damages to Jenny Siler and Dakota Siler. Plaintiffs raise numerous issues on appeal, asserting, among other things, that the trial court erred in refusing their request to change venue, improperly conducting jury selection, making several errors in the admission and preclusion of evidence, dismissing Scott and McClellan, limiting Campbell County's liability to $25, 000 total per plaintiff, incorrectly instructing the jury, and declining their request for attorney's fees. Plaintiffs further argue that the verdicts were below the range of reasonableness. We affirm the trial court's judgment.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Case Remanded

          Herbert S. Moncier, Knoxville, Tennessee, and Kristie N. Anderson, Jacksboro, Tennessee, for the appellants, Lester Eugene Siler, Jenny Siler, and Dakota Siler.

          Arthur F. Knight, III, Knoxville, Tennessee, for the appellee, Campbell County, Tennessee.

          Robert L. Bowman and Brandon L. Morrow, Knoxville, Tennessee, for the appellee, Western Surety Insurance Company.

          No brief filed by appellees Gerald David Webber, Samuel Reed Franklin, Joshua James Monday, Shayne Christopher Green, William Carroll, Charles Scott, and Ron McLellan.

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and John W. McClarty, J., joined.

          OPINION

          CHARLES D. SUSANO, JR., JUDGE

         I.

         On July 8, 2004, deputies William Carroll, Shayne Green, Samuel Franklin, Gerald Webber, Jr., and Joshua Monday went to the home of Lester Eugene Siler in Duff, Tennessee, to execute an arrest warrant for a probation violation. They were all in plain clothes. Because of suspicions that Mr. Siler was engaged in continuing drug trafficking activities, the deputies agreed beforehand that they would threaten, intimidate, and physically assault Mr. Siler in order to obtain consent to search his residence. Upon their arrival at the Silers' residence, the defendants told Mr. Siler to go inside his house. They handcuffed him. They then ordered Jenny and Dakota Siler to leave the home so they would not witness the "mess" that was about to ensue. Unbeknownst to the officers, Jenny Siler made a partial audio recording of the interaction with a recording device she turned on before she left the home. It was able to capture about forty-three minutes of the incident. The whole incident lasted approximately two and a half hours.

         The specific nature of the abuse is detailed by the recording and transcript, and the stipulations of fact entered into by the deputies, in conjunction with their federal guilty pleas. When the recording begins, and even before Mr. Siler was first asked to consent to a search, the "slapping, striking, or hitting sounds" commenced. Although Mr. Siler remained handcuffed for at least part of the time and offered no physical resistance, he was repeatedly beaten and threatened with serious bodily harm and even death. Meanwhile, Jenny and Dakota Siler remained outside the home at the end of their driveway.

         Lester Siler's physical abuse, at the hands of the deputies, included slapping, punching, and kicking (resulting in cuts, bruises and a fractured nose) and striking him with a slapjack and a plastic baseball bat. They attached wires from a battery charger to him and threatened to electrocute him. They attempted to force his head into a fish tank full of water, and into an overflowing toilet. The deputies burned Mr. Siler with a cigarette lighter. They threatened to break his fingers and cut off his testicles. They put a pistol in his mouth and set off a firecracker. During the ordeal, the deputies confiscated or stole various items of the Silers' personal property, including a laptop computer, jewelry, money, two security cameras, and a Sony PlayStation. Other personal items in the house were damaged or destroyed. Lester Siler never consented to the search. He and his wife were ultimately arrested and taken to jail. Eventually, all charges against the plaintiffs were dismissed.

         The TBI investigated Mr. Siler's allegations of abuse. All five defendants gave sworn written statements to the TBI denying any wrongdoing. The deputies' stories changed when they were confronted with the audio recording. They were charged in federal court with, pleaded guilty to, and received significant prison sentences for conspiring to violate Siler's civil rights under color of law.

         On July 6, 2005, plaintiffs filed a civil complaint in federal court alleging "claims under 42 U.S.C. § 1983 based on alleged violations of rights guaranteed by the United States Constitution." Siler v. Webber, No. 3:05-cv-341, 2009 WL 10680025, at *1 (E.D. Tenn., filed Jan. 27, 2009). They also asserted eighteen causes of action "based purely on Tennessee state law." Id. at *3. The next day, plaintiffs filed their complaint in the instant action, alleging,

assaults and batteries; malicious harassment; trespass; false arrest; false imprisonment; abuse of process; malicious prosecution; intentional infliction of emotional distress; and violations of their constitutional rights guaranteed to them by the Tennessee Constitution.

         On March 27, 2008, nearly three years after the complaint was filed in this case, plaintiffs filed a motion for change of venue, arguing that "due to prejudice and publicity existing in Campbell County . . . a fair and impartial jury trial cannot occur." In their brief, plaintiffs assert that

[a] one-half day evidentiary hearing was held before Campbell County Circuit Court Judge John D. McAfee . . . on the Silers' [m]otion for [c]hange of [v]enue. However, toward the end of the hearing, Judge McAfee recused himself for being too close to interested individuals and did not render a ruling. The exhibits and recording of that hearing were lost by the [c]lerk and were not available for future hearings when conducted on the Silers' motion for change of venue.

         There is no order from Judge McAfee in the record, nor is there anything else pertaining to the hearing. On May 2, 2008, the Supreme Court designated Senior Judge Walter C. Kurtz to hear the case.

         On July 14, 2008, the trial court entered an order staying the proceedings pending the outcome of plaintiffs' federal lawsuit. The federal district court subsequently entered an order declining to exercise supplemental jurisdiction over plaintiffs' state law claims. Siler v. Webber, No. 3:05-cv-341, 2009 WL 10680025, at *11. The district court ruled that "[p]laintiffs may litigate all of their state law claims against the same defendants in the concurrent, parallel case in the Campbell County Circuit Court." Siler v. Webber, 2009 WL 10680026, at *6 (E.D. Tenn., filed Mar. 5, 2009). Shortly thereafter, the district court granted Campbell County summary judgment on plaintiffs' federal 42 U.S.C. § 1983 claims. Siler v. Webber, 2009 WL 10680020, at *28 (E.D. Tenn., filed Apr. 21, 2009). The Sixth Circuit affirmed this decision. Siler v. Webber, 443 Fed.Appx. 50, 51 (6th Cir. 2011).

         On July 30, 2010, the trial court granted motions to dismiss filed by defendants McClellan and Scott. The trial court held that these defendants were granted immunity by Tenn. Code Ann. §§ 29-20-310(b) and 8-8-301, a ruling that will be discussed at length later in this opinion.

         On April 7, 2011, the trial court entered an order granting defendants summary judgment on claims brought under the Governmental Tort Liability Act, Tenn. Code Ann. § 29-20-205 (2012) and the Tennessee Constitution. The court denied Campbell County's motion for summary judgment on claims based on Tenn. Code Ann. § 8-8-302 (2016), stating,

the only claims that remain against the County are those brought under Tenn. Code Ann. § 8-8-302 for the non-negligent, intentional acts of Webber, Franklin, Monday, Green and Carroll.

         On October 28, 2011, the trial court entered an order denying a change of venue, stating, in pertinent part, as follows:

[p]laintiffs state that their motion for change of venue was never ruled upon. . . . It was heard by the prior judge, who never ruled upon it before he recused himself. The Court is of the opinion that it is appropriate to attempt to seat a jury. If prior knowledge of the case by persons in Campbell County makes it difficult to seat a jury, then the motion may be renewed. The motion for change of venue is, at this time, DENIED.

(Footnote in original omitted; capitalization in original.) Senior Judge Kurtz retired on December 31, 2012, and was replaced by Senior Judge Paul G. Summers.

         On August 3, 2015, the trial court entered an order stating, in pertinent part, that

The Court finds that Campbell County has waived governmental immunity for the acts of each individual deputy, acting under the color of office, but only up to an aggregate damage value of $25, 000. Such waiver is per claimant. This finding is irrespective of the numbers of actors and number of violations; $25, 000 is the maximum exposure of the County to each plaintiff or claimant.

         Plaintiffs filed a motion in limine to exclude from the venire all Campbell County residents who paid property or sales taxes, arguing that they "have more than a de minimus financial interest in the public funds of Campbell County." The trial court denied the motion.

         Jury selection took place on October 19, 2016. After the jury was selected and the trial court gave preliminary instructions, all of the defendants informed the trial court in a chambers conference that they were admitting liability on all of the causes of action. For Mr. Siler, these claims were for assault and battery, false arrest, false imprisonment, trespass, abuse of process, malicious prosecution, and failure and neglect to perform duties as a deputy sheriff in violation of their oath of office. Ms. Siler asserted the same claims except assault and battery. Dakota Siler alleged intentional infliction of emotional distress, trespass, and failure and neglect to perform duties as a deputy sheriff. The next morning, the trial court informed the jury that the defendants admitted liability on all claims and consequently, the jury's role was to determine damages, if any.

         The jury returned a verdict in favor of Mr. Siler against the individual defendants in the following amounts: William Carroll, $15, 000; Samuel Franklin, $15, 000; Shayne Green, $20, 000; Joshua Monday, $20, 000; Gerald Webber, $20, 000. The jury awarded Mr. Siler $10, 000 against Campbell County. Mrs. Siler and Dakota Siler were awarded no damages. The trial court approved the verdicts against the individual defendants and suggested an additur of $15, 000 to Mr. Siler's verdict against Campbell County. The county accepted the additur, resulting in a judgment against it in the amount of $25, 000.

         Plaintiffs filed numerous post-trial motions, including a motion to amend their complaint to add Western Surety Insurance Company, which issued surety bonds for the Campbell County Sheriff and deputies, as "a necessary and interested party." A decade earlier, Western Surety had been dismissed from the case by agreed order entered on January 19, 2006, finding it "not a necessary party." The trial court denied the motions and plaintiffs' request for attorney's fees. Plaintiffs timely filed a notice of appeal.

         II.

         Plaintiffs raise the following issues, as paraphrased from their brief:

1. Did the trial court err in granting defendants summary judgment on plaintiffs' GTLA claims?
2. Did the trial court err in dismissing plaintiffs' claims against McClellan and Scott in their individual and official capacities?
3. Did the trial court err in granting summary judgment on claims for alleged violations of the Tennessee Constitution?
4. Did the trial court in its pre-trial ruling that the liability of Campbell County was limited to the amount of $25, 000 per plaintiff?
5. Did the trial court err in denying plaintiffs' motion for change of venue?
6. Did the trial court err in declining to rule that all Campbell County taxpayers were disqualified as having a financial interest in the outcome of the case?
7. Did the trial court deny plaintiffs their right to examine potential jurors during voir dire to establish challenges for cause and make meaningful decisions regarding their peremptory challenges?
8. Were plaintiffs denied their "right to a meaningful preliminary statement, voir dire and opening statement" by the trial court's failure to instruct the jury, at an earlier point in the proceedings, that defendants had admitted liability and the only issue to be decided by the jury was damages?
9. Did the trial court err in refusing plaintiffs' request for late discovery of Mr. Siler's prison psychiatric records?
10. Did the trial court err in refusing to allow plaintiffs to present evidence they deemed as pertinent to damages?
11. Did the trial court err in allowing irrelevant evidence of the individual defendants' punishment and restitution in federal court?
12. Did the trial court err by making improper comments on the evidence?
13. Did the trial court err by providing the jury "incorrect, inconsistent, misleading and confusing instructions"?
14. Did the trial court by refusing to hold that the amounts of the jury's verdicts for damages were below the range of reasonableness, and denying plaintiffs' motion for a new trial on that ground?
15. Did the trial court err in refusing to award plaintiffs their attorney's fees?
16. Did the trial court err in refusing to add Western Surety Insurance Company as a party after the trial was concluded?
17. Did the trial court err by refusing plaintiffs' request to include in its final judgment "the conduct Defendants admitt[ed] and findings necessary for the [j]udgments against Defendants to be non-dischargeable in bankruptcy"?

         III.

         "We review questions of law, including those of statutory construction, de novo with no presumption of correctness" accorded to the trial court. Duke v. Duke, 563 S.W.3d 885, 894 (Tenn. Ct. App. 2018). We review a jury verdict under the material evidence standard, which requires us to "review the record and 'take the strongest legitimate view of all the evidence in favor of the verdict, assume the truth of all evidence that supports the verdict, allow all reasonable inferences to sustain the verdict, and discard all countervailing evidence.'" Borne v. Celadon Trucking Servs., Inc., 532 S.W.3d 274, 298 (Tenn. 2017) (quoting Akers v. Prime Succession of Tenn., Inc., 387 S.W.3d 495, 501 (Tenn. 2012)).

         IV.

         A. Summary Judgment for Campbell County on GTLA Claims

         Plaintiffs argue that the trial court erred in granting Campbell County summary judgment on their claims brought under the Governmental Tort Liability Act. Our standard of review of a grant of summary judgment is as stated by the Supreme Court:

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Tenn. R. Civ. P. 56.04. We review a trial court's ruling on a motion for summary judgment de novo, without a presumption of correctness.
***
[I]n Tennessee, as in the federal system, when the moving party does not bear the burden of proof at trial, the moving party may satisfy its burden of production either (1) by affirmatively negating an essential element of the nonmoving party's claim or (2) by demonstrating that the nonmoving party's evidence at the summary judgment stage is insufficient to establish the nonmoving party's claim or defense. . . . The nonmoving party must demonstrate the existence of specific facts in the record which could lead a rational trier of fact to find in favor of the nonmoving party.

Rye v. Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn. 2015) (italics in original).

         The GTLA, Tenn. Code Ann. § 29-20-101 et seq., applies to claims regarding alleged negligent acts by county employees. Hughes v. Metro. Gov't of Nashville & Davidson County, 340 S.W.3d 352, 368 (Tenn. 2011); Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 79 (Tenn. 2001); Doe v. Pedigo, No. E2002-01311-COA-R3-CV, 2003 WL 21516220, at *2 (Tenn. Ct. App., filed June 30, 2003); Swanson v. Knox County, No. E2007-00871-COA-R3-CV, 2007 WL 4117259, at *4-5 (Tenn. Ct. App., filed Nov. 20, 2007). Plaintiffs alleged generally that Campbell County Sheriff's Department employees were negligent in providing inadequate training and supervision of the deputies who committed intentional torts against them. The GTLA provides, in pertinent part, that

[i]mmunity from suit of all governmental entities is removed for injury proximately caused by a negligent act or omission of any employee within the scope of his employment except if the injury arises out of:
(1) The exercise or performance or the failure to exercise or perform a discretionary function, whether or not the discretion is abused;
(2) False imprisonment pursuant to a mittimus from a court, false arrest, malicious prosecution, intentional trespass, abuse of process, libel, slander, deceit, interference with contract rights, infliction of mental anguish, invasion of right of privacy, or civil rights[.]

Tenn. Code Ann. § 29-20-205. As an initial matter, we note that the claims brought by Jenny Siler and Dakota Siler all fall within section 205(2). Thus the General Assembly has expressly excepted their claims from the general removal of immunity for negligent acts or omissions of government employees. We affirm the trial court's summary judgment against Jenny and Dakota Siler on the ground that Campbell County is immune under the GTLA.

         Lester Siler also brought a claim for negligence resulting in his assault and battery. The Supreme Court has held on at least two occasions that "a governmental entity, under appropriate circumstances, c[an] be held liable for an assault and battery by an employee." Hughes, 340 S.W.3d at 368 (citing Limbaugh, 59 S.W.3d at 84). However, the trial court granted Campbell County summary judgment on the ground that Mr. Siler's claim is a "civil rights" claim, from which the county is immune. The court stated, in pertinent part, as follows:

Recent cases have made the ability to recover against the County fairly difficult in police assault cases involving allegations of "civil rights" violations. Immunity is granted the County under the GTLA when the cause of action contends violation of "civil rights." Tenn. Code Ann. § 29-20-205 (2).
In Campbell v. Anderson County, 695 F.Supp.2d 764 (E.D. Tenn. 2010), the plaintiff contended that she was sexually assaulted by a reserve deputy sheriff while being transported from a crime scene. She brought suit against Anderson County under the federal civil rights act, 42 U.S.C. § 1983, as well as the GTLA. In addressing the GTLA state law claim, the court stated[, ]
In the alternative, there is a different reason why Campbell's claims against the County for false imprisonment, assault and battery, intentional infliction of emotional distress, and negligence should be dismissed. These torts are alleged to have been committed solely in the context of the violation of Campbell's civil rights ‒ this is in essence a civil rights suit.
Tenn. Code Ann. § 29-20-205(2) provides that immunity from suit of all governmental entities is removed or waived for injury proximately caused by a negligent act or omission of any employee within the scope of his employment except if the injury arises out of "civil rights." It is fair and reasonable to interpret the plain language in § 29-20-205(2) as meaning that civil rights claims are a type of intentional tort. Brooks v. Sevier County, 279 F.Supp.2d 954, 960 (E.D. Tenn. 2003). This court construes the term "civil rights" in § 29-20-205(2) as meaning and including claims arising under the federal civil rights laws, e.g., 42 U.S.C. § 1983 and the United States Constitution.
Campbell's tort claims of false imprisonment, assault and battery, intentional infliction of emotional distress, and negligence brought against the County under Tennessee law are predicated on the alleged violation of her civil rights by Graham. The contention that former Reserve Deputy Graham committed false imprisonment, assault and battery, and intentional infliction of emotional distress clearly arise out of and directly flow from the allegations that he deprived Campbell of her civil rights by sexually assaulting her. Because Campbell asserts her claims against the County in the context of a civil rights case, her alleged injuries arise out of "civil rights" and the County is entitled to immunity from suit on these claims pursuant to the "civil rights" exception in Tenn. Code Ann. § 29-20-205(2).
Campbell, 695 F.Supp.2d at 778. The holding in Campbell was adopted by a recent Court of Appeals case. See Jackson v. Thomas, 2011 WL 1049804, at *7 (Tenn. Ct. App. Mar. 23, 2011).

         Since 2011, when the trial court entered summary judgment, both the federal courts addressing the GTLA civil rights exception and this Court have followed and applied the principles espoused in Campbell. See Howard v. Knox County, No. 3:15-CV-6-TAV-CCS, 2016 WL 9455169, at *10-11 (E.D. Tenn., filed Sept. 7, 2016); Lundy v. Knox County, No. 3:13-CV-588-TAV-HBG, 2014 WL 1491235, at *4 (E.D. Tenn., filed Apr. 15, 2014); Dillingham v. Millsaps, 809 F.Supp.2d 820, 852 (E.D. Tenn. 2011); Johnson v. City of Memphis, 617 F.3d 864, 871 (6th Cir. 2010); Merolla v. Wilson County, No. M2018-00919-COA-R3-CV, 2019 WL 1934829, at *4 (Tenn. Ct. App., filed May 1, 2019); Lankford v. City of Hendersonville, No. M2016-02041-COA-R3-CV, 2018 WL 1559971, at *8 (Tenn. Ct. App., filed Mar. 29, 2018); Cochran v. Town of Jonesborough, No. E2018-01512-COA-R3-CV, 2019 WL 1399514, at *8 (Tenn. Ct. App., filed Mar. 27, 2019); but see Parker v. Henderson County, No. W2009-00975-COA-R3-CV, 2010 WL 377044, at *4 (Tenn. Ct. App., filed Feb. 4, 2010).

         In the recent Cochran opinion, this Court discussed at length the cases cited above, recognizing that there is a split of authority in the opinions in that Parker, 2010 WL 377044, was decided contra to the others. The Parker Court declined to apply the civil rights exception where the plaintiff was shot by a police officer, observing that the plaintiff "neither pleaded nor argued in the present proceeding that the City or its officers violated his federal civil rights." Id. at *4. In Cochran, we stated that

[o]ther Tennessee cases, however, decide the issue differently, and the federal courts of Tennessee have consistently applied the civil rights exception in 29-20-205(2) in the stricter manner urged by [the defendant town].

2019 WL 1399514, at *4. Choosing "to follow the greater weight of authority and embrace the application of section 29-20-205(2) that preserves immunity," Cochran stated that "the injuries [plaintiff] alleges to have suffered stem from well-established civil rights, regardless of how [plaintiff] chose to characterize those claims in his state action." Id. at *8, *7. The Cochran Court was:

unpersuaded by [plaintiff's] argument that because the district court dismissed [plaintiff's] federal claims at the summary judgment stage, there were no civil rights violations, and section 29-20-205(2) is thereby inapplicable. . . . Nothing in the language of section 29-20-205(2) indicates that there must be an express finding that a civil rights violation occurred in order for the exception to apply. Indeed, immunity offered by section 29-20-205 is broad, preserving immunity for negligence claims so long as the "injury arises out of . . . civil rights."

Id. at *8.

         The instant case bears many similarities to Cochran and other cases where a plaintiff alleged police misconduct or assault. Mr. Siler alleged violation of his federal civil rights in his federal action. A claim of excessive force by law enforcement officers often involves the implication of a civil rights violation. See Cochran, 2019 WL 1399514, at *7, and cases cited therein; Merolla, 2019 WL 1934829, at *5. Following the lines of authority culminating most recently in Cochran and Merolla, we are compelled to conclude that the county's immunity is preserved under the civil rights exception, Tenn. Code Ann. § 29-20-205(2). As Cochran observed,

[i]mportantly, our holding today is in keeping with the well-established principle that "statutes permitting suits against the State must be strictly construed." Moreno v. City of Clarksville, 479 S.W.3d 795, 809-10 (Tenn. 2015); see also Limbaugh, 59 S.W.3d at 83 ("[A]s the legislature created [the GTLA] in derogation of the common law . . . the Act must be strictly construed.") (citing Lockhart ex rel. Lockhart v. Jackson-Madison Cty. Gen. Hosp., 793 S.W.2d 943 (Tenn. Ct. App. 1990)); Hughes v. Metro. Gov't of Nashville and Davidson Cty., 340 S.W.3d 352, 361 (Tenn. 2011) (quoting Doyle v. Frost, 49 S.W.3d 853, 858 (Tenn. 2001)) ("The GTLA's waiver of immunity is 'narrowly confined in its scope.' ").

Id. at *8 (brackets in original). We hold that the plaintiffs' claims against Campbell County fall under the "civil rights" exception and are barred by the county's immunity.

         B. Dismissal of Claims Against McClellan and Scott

         Former Sheriff McClellan and former Chief Deputy Scott filed a Tenn. R. Civ. P. 12.02(6) motion to dismiss for failure to state a claim upon which relief can be granted "based upon their immunity as governmental entity employees." The plaintiffs' complaint alleges that McClellan and Scott "failed and neglected to perform the duties required of [them] to train, supervise, and discipline" their subordinate officers. Plaintiffs argue that the trial court erred in granting the motion to dismiss McClellan and Scott in their individual and official capacities on immunity grounds.

         In Jenkins v. Loudon County, 736 S.W.2d 603, 605 (Tenn. 1987), overruled on other grounds by Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 83-84 (Tenn. 2001), the Supreme Court, reviewing the history of law enforcement officer liability in Tennessee, noted that "[a]t common law, the sheriff was personally liable to persons aggrieved by official wrongs of his deputy." (Internal quotation marks omitted). Regarding defendant Scott, plaintiffs cite no authority stating or suggesting that a person with the title of "chief deputy" may be held personally liable for the acts of subordinate deputies. The Jenkins Court further observed that

[a]s the office of the sheriff has evolved, statutory provisions have modified this common law liability, and in 1972, . . . T.C.A. §§ 8-8-301, et seq., was enacted, providing that "[n]o sheriff, whether elected or appointed, nor any surety on his bonds, shall be liable for any wrongs, injuries, losses, damages or expenses incurred as a result of any act or failure to act on the part of any deputy appointed by said sheriff, whether said deputy is acting by virtue of office, under color of office or otherwise."

Id. At the same time, Tenn. Code Ann. § 8-8-302 shifted liability "to the county to a limited extent," id., providing that

[a]nyone incurring any wrong, injury, loss, damage or expense resulting from any act or failure to act on the part of any deputy appointed by the sheriff may bring suit against the county in which the sheriff serves; provided, that the deputy is, at the time of such occurrence, acting by virtue of or under color of the office.

         Section 8-8-301(a) immunizes former Sheriff McClellan from liability for non-negligent acts of intentional misconduct by his deputies. O'Neal v. DeKalb County, 531 S.W.2d 296, 298 (Tenn. 1975); Jenkins, 736 S.W.2d at 608; Hensley v. Fowler, 920 S.W.2d 649, 651 (Tenn. Ct. App. 1995); Swanson, 2007 WL 4117259, at *4. The Supreme Court has held that the GTLA supersedes Tenn. Code Ann. § 8-8-301 et seq. regarding actions for negligent conduct. Jenkins, 736 S.W.2d at 609; accord Hensley, 920 S.W.2d at 652; Swanson, 2007 WL 4117259, at *4; Warnick v. Carter County, No. E2002-00833-COA-R3-CV, 2003 WL 174754, at *2 (Tenn. Ct. App., filed Jan. 27, 2003).

         The trial court dismissed the claims against McClellan and Scott before it ruled that Campbell County was entitled to summary judgment on its GTLA claims, stating,

the Court finds that, under the facts as alleged in the [c]omplaint, T.C.A. §§ 29-20-310(b) and 8-8-301 confer immunity from suit upon the former sheriff, Ron McClellan and former chief deputy, Charles Scott, and that Defendant Campbell County is the proper party to be named as a defendant as to Plaintiffs' negligence claims under the Tennessee Governmental Tort Liability Act, T.C.A. §§ 29-20-101 et seq., and under T.C.A. § 8-8-302 as to Plaintiff's claims of non-negligent conduct.

         Tenn. Code Ann. § 29-20-310(b) provides immunity for a county employee when the county's immunity under the GTLA has been removed. It states, in pertinent part, that

[n]o claim may be brought against an employee or judgment entered against an employee for damages for which the immunity of the governmental entity is removed by this chapter unless the claim is one for health care liability brought against a health care practitioner.

         The trial court's judgment in McClellan and Scott's favor under this section must also be construed as a ruling that Campbell County was not immune to liability from a claim that the negligence of its employees was the proximate cause of an assault and battery. See Hill v. City of Germantown, 31 S.W.3d 234, 238 (Tenn. 2000) (section 310(b) "giv[es] the employee absolute immunity in cases where the municipality's immunity was removed") (quoting Erwin v. Rose, 980 S.W.2d 203, 206 (Tenn. Ct. App. 1998)); Fitzgerald v. Hickman County Gov't, No. M2017-00565-COA-R3-CV, 2018 WL 1634111, at *6 (Tenn. Ct. App., filed Apr. 4, 2018) ("where the governmental entity's immunity is removed, no claim may lie as to an individual employee. . . [O]nly when the governmental entity is immune may the employee be sued under the provisions of section 29-20-310(c)."). While this proposition is generally correct "under appropriate circumstances," Hughes, 340 S.W.3d at 368 (citing Limbaugh, 59 S.W.3d at 84), as already discussed, in this case alleging police assault and battery, the civil ...


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