LESTER EUGENE SILER ET AL.
CHARLES SCOTT ET AL.
Session January 16, 2019
from the Circuit Court for Campbell County No. 12792 Paul G.
Summers, Senior Judge 
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.
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.
F. Knight, III, Knoxville, Tennessee, for the appellee,
Campbell County, Tennessee.
L. Bowman and Brandon L. Morrow, Knoxville, Tennessee, for
the appellee, Western Surety Insurance Company.
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.
CHARLES D. SUSANO, JR., JUDGE
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.
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.
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.
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.
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.
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
[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
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
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
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.
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),
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.
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,
(Footnote in original omitted; capitalization in original.)
Senior Judge Kurtz retired on December 31, 2012, and was
replaced by Senior Judge Paul G. Summers.
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.
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.
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.
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.
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
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
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
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
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
13. Did the trial court err by providing the jury
"incorrect, inconsistent, misleading and confusing
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
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)).
Summary Judgment for Campbell County on GTLA Claims
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
Rye v. Women's Care Ctr. of Memphis, MPLLC, 477
S.W.3d 235, 250, 264-65 (Tenn. 2015) (italics in original).
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.
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.
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).
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).
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
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.
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
[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
Dismissal of Claims Against McClellan and Scott
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
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
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.
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).
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
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.
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 ...