Session May 7, 2019
from the Circuit Court for White County No. CC2880 Larry B.
Stanley, Jr., Judge.
mother brought suit against White County and its Sheriff for
negligent infliction of emotional distress arising out of a
situation in which the Sheriff erroneously informed the
mother that her son had been shot and killed by deputies. The
trial court dismissed the suit, ruling that the Sheriff was
immune from suit under the Governmental Tort Liability Act
and White County was immune from suit by application of the
public duty doctrine. Mother appeals, asserting that neither
defendant is immune from suit. Finding no error, we affirm
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Richard M. Brooks, Carthage, Tennessee, for the appellant,
Michael T. Schmitt, Nashville, Tennessee, for the appellees,
White County, Tennessee, and Oddie Shoupe, White County
Richard H. Dinkins, J., delivered the opinion of the court,
in which J. Steven Stafford, P.J., W.S., and Carma Dennis
McGee, J., joined.
RICHARD H. DINKINS, JUDGE.
Factual and Procedural History
April 13, 2017, White County Sheriff's deputies and
Sparta police officers were involved in a high-speed chase of
a pickup truck on Highway 111; the pursuit ended when the
deputies shot and killed the driver, who had been identified
by Dekalb County 911 dispatch as Michael Dial. Heather
Ramsey, daughter of Patricia Randolph, the plaintiff in this
case, received a call from one of her friends telling her
that a post on social media stated that Ms. Randolph's
son, Jason Kirby, was the driver who had been killed; Ms.
Ramsey conveyed this information to Ms. Randolph. Ms.
Randolph then went to the hospital to find out what had
happened to her son; on the way to the hospital, she came
upon the scene of the shooting. Upon her arrival, the Sheriff
of White County, Oddie Shoupe, called Ms. Randolph over to
where he was and told her that her son had fired at his
deputies and they had to "take him out." Ms.
Randolph continued to the hospital, where hospital personnel
confirmed that it was her son who had been killed. While at
the hospital, however, Ms. Randolph received a call from her
ex-husband, who told her that there had been a mistake and
that her son had not been killed. At some point, Jason Kirby
learned of the report that he had been killed and went to his
mother's home to show her that he was alive.
April 12, 2018, Ms. Randolph filed suit against White County
and Sheriff Shoupe, individually and in his official
capacity, pursuant to the Governmental Tort Liability Act
("GTLA"), Tennessee Code Annotated section
29-20-101, et seq., and common law, to recover for
negligent infliction of emotional distress. The defendants
moved pursuant to Tennessee Rule of Civil Procedure 12.02(6)
to dismiss the suit, contending that White County was immune
from suit by application of the public duty doctrine and that
Sheriff Shoupe was entitled to immunity under section
29-20-310(b) and by application of the public duty doctrine.
Ms. Randolph responded, contending that the public duty
doctrine did not immunize White County from suit because the
special duty exception to the doctrine applied; she conceded
that Sheriff Shoupe was immune from suit in his official
capacity but argued that he could be held liable in his
hearing on the motion to dismiss, Ms. Randolph orally moved
that she be allowed to take discovery before the court ruled
on the motion to dismiss; the court denied the motion. The
court granted Defendants' motion and dismissed the suit,
ruling that: White County's immunity from suit had been
removed by section 29-20-205(2) of the GTLA and that, as a
consequence, by application of section 29-20-310(b), no claim
could be brought against Sheriff Shoupe; and, White County
was immune from suit pursuant to the public duty doctrine.
Randolph appeals, presenting the following issues for review:
1. Whether the trial court erred in granting Defendant White
County, Tennessee, immunity pursuant to the common law public
2. Whether the trial court erred in finding that the special
duty exceptions to the public duty doctrine do not apply,
thus retaining immunity for Defendant, White County,
Tennessee, under the common law public duty doctrine.
3. Whether the trial court erred in granting the Defendant
Oddie Shoupe, in his individual capacity, immunity pursuant
to the Tennessee Governmental Tort Liability Act.
4. Whether the trial court erred in denying Plaintiff's
oral motion for discovery.
Standard of Review
purpose of a Tennessee Rule of Civil Procedure 12.02(6)
motion to dismiss is to determine whether the pleadings state
a claim upon which relief can be granted; such a motion only
challenges the legal sufficiency of the complaint. Webb
v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d
422, 426 (Tenn. 2011). It does not challenge the strength of
the plaintiff's proof. See Bell ex rel. Snyder v.
Icard, Merrill, Cullis, Timm, Furen & Ginsburg,
P.A., 986 S.W.2d 550, 554 (Tenn. 1999). In reviewing a
motion to dismiss, we must liberally construe the complaint,
presuming all factual allegations to be true and giving the
plaintiff the benefit of all reasonable inferences. See
Pursell v. First American National Bank, 937 S.W.2d 838,
840 (Tenn. 1996); Trau-Med of Am., Inc. v. Allstate Ins.
Co., 71 S.W.3d 691, 696-97 (Tenn. 2002). Thus, a
complaint should not be dismissed for failure to state a
claim unless it appears that the plaintiff can prove no set
of facts in support of his or her claim that would warrant
relief. See Doe v. Sundquist, 2 S.W.3d 919, 922
(Tenn. 1999); Fuerst v. Methodist Hospital South,
566 S.W.2d 847, 848 (Tenn. 1978). Making such a determination
is a question of law. Burks v. Savannah Indus. Dev. Corp.
of the City of Savannah Tennessee, No.
W2018-00166-COA-R3-CV, 2018 WL 5307091, at *1 (Tenn. Ct. App.
Oct. 24, 2018) ("the scope of review after the grant or
denial of a motion to dismiss involves a question of
law") (citing Trau-Med of Am., Inc. v. Allstate Ins.
Co., 71 S.W.3d 691, 696-97 (Tenn. 2002)). Our review of
a trial court's determinations on issues of law is de
novo, with no presumption of correctness. Frye v.
Blue Ridge Neuroscience Center, P.C., 70 S.W.3d 710, 713
(Tenn. 2002); Bowden v. Ward, 27 S.W.3d 913, 916
(Tenn. 2000); Ganzevoort v. Russell, 949 S.W.2d 293,
296 (Tenn. 1997).
The County's Immunity
GTLA is premised on article I, section 17, of the Tennessee
Constitution, which provides that suits against the State
"may only be brought 'in such manner and in such
courts as the Legislature may by law direct.'"
Vaughn v. City of Tullahoma, No.
M2015-02441-COA-R3-CV, 2017 WL 3149602, at *1 (Tenn. Ct. App.
July 21, 2017) (quoting Tenn. Const. art. I, § 17). The
GTLA codified the common law rule that "all governmental
entities shall be immune from suit for any injury which may
result from the activities of such governmental
entities." Tenn. Code Ann. § 29-20-201(a). Subject
to exceptions not applicable in this action, section 205
removes the immunity granted in section 201(a) in cases where
the injury was "proximately caused by the negligent act
or omission of any employee within the scope of his
employment"; the parties do not dispute that White
County's immunity is removed by section
the effect of the GTLA, White County argued, and the trial
court agreed, that it was nevertheless immune from suit by
application of the public duty doctrine, which is "a
common law affirmative defense that . . . provides immunity
to public employees [and governmental entities] from suits
for injuries that are caused by their breach of a duty owed
to the public at large." Karnes v. Madison
County, No. W2009-02476-COA-R3-CV, 2010 WL 3716458, *2