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Acree ex rel. Acree v. Metropolitan Government of Nashville and David Son County

Court of Appeals of Tennessee, Nashville

December 27, 2019

WILLIAM ACREE EX REL. JOHN D. ACREE
v.
METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVID SON COUNTY

          Assigned on Briefs August 1, 2019

          Appeal from the Circuit Court for Davidson County No. 16C-1166 Thomas W. Brothers, Judge

         This appeal arises from an action in tort against the Metropolitan Government of Nashville and Davidson County Tennessee ("the Metropolitan Government") as the sole defendant. The action is brought by the brother on behalf of the decedent who died after being shot by police officers employed by the Metropolitan Government. The plaintiff asserts that the Metropolitan Government owed a special duty of care to the decedent because the police officers were reckless by failing to conduct a reasonable investigation concerning the decedent's mental health before attempting to serve a felony warrant. Moreover, the plaintiff asserts that police officers failed to abide by internal police department guidelines pursuant to which, the complaint alleges, the officers should have withdrawn from the area before the decedent exited the rear door of his house pointing a handgun at police officers. The undisputed material facts are that when the officers attempted to serve the decedent at his residence, the decedent refused to respond to the officers at the front door of his residence and, instead, abruptly exited through the rear door armed with a loaded handgun where the decedent and one of the police officers exchanged gunfire, resulting in the death of the decedent. The trial court summarily dismissed the complaint under the Governmental Tort Liability Act finding, inter alia, that the police officers owed a general duty to the public at large when serving the felony capias; the internal policies and procedures of the Metropolitan Police Department did not establish a duty enforceable in tort; there were no genuine issues of material fact to show the police officers acted recklessly, thus the special duty exception to the public duty doctrine did not apply; and because the special duty doctrine did not apply, the police officers and the Metropolitan Government were immune from liability. The trial court also found the claim was barred by the doctrine of comparative fault based on the undisputed fact that the decedent was at least 50% at fault for his injuries and death because he aimed a loaded weapon at the police officer before the officer opened fire. We affirm.

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

          Phillip L. Davidson, Brentwood, Tennessee, for the appellant, William Acree, as brother, next of kin to and the executor of the Estate of John D. Acree.

          Andrew D. McClanahan, Christopher M. Lackey, Nashville, Tennessee, for the appellee, Metropolitan Government of Nashville and Davidson County, Tennessee.

          Frank G. Clement Jr., P.J., M.S., delivered the opinion of the Court, in which Thomas R. Frierson II and Kenny W. Armstrong, JJ., joined.

          OPINION

          FRANK G. CLEMENT JR., P.J., M.S.

         On April 29, 2015, John D. Acree ("Decedent") failed to appear for a court hearing concerning an aggravated criminal trespass charge. His failure to appear was a Class E Felony, resulting in the issuance of a felony warrant. Later that day, William Acree ("Plaintiff"), Decedent's twin brother, spoke with Decedent's criminal defense attorney, who informed Plaintiff that police officers would likely come to arrest Decedent later that night or the next day at Decedent's home in Nashville where the events at issue occurred.

         The next morning, Officer Arthur Hummell searched the "hot warrants box" and discovered an outstanding warrant for the arrest of Decedent. Officer Hummell also noted there was an Officer Safety Alert that stated: "Person of Interest (03/27/2013 -) Comments: Officer Safety Issue ― subject may exhibit paranoia and feel that officers are following him. Subject may video encounters with police, other citizens at random. Please forward copies of all paperwork to the security threat section / SID." Officer Hummell also noted that Decedent had been arrested three times in the past six months without incident. Thereafter, Officer Hummell proceeded to Decedent's home address to serve the warrant.

         Upon arriving at Decedent's home and concluding that Decedent was likely at home because there were two automobiles at the residence, Officer Hummell called for backup. When Officers Mark Haugen, William Wright, and Devin Mabry arrived at the scene, Officer Hummell informed them of the Officer Safety Alert. Because one of the automobiles was at the rear of the house, Officer Hummell directed Officers Haugen and Wright to cover the back door while Officers Hummell and Mabry went to the front door. Officer Hummell knocked on the door and identified himself as a police officer. After no one answered, Officer Hummell looked through a hole in the door and saw Decedent in the house but he was not moving toward the front door. Officer Hummell then knocked on the door again and asked Decedent to come to the door. After seeing Decedent disappear as he was walking away from the front of the house, Officer Hummell announced over his radio that Decedent was walking toward the back of the house.

         Officer Wright, who was positioned behind the house, then saw Decedent abruptly open the back door and raise a firearm at him. In response, Officer Wright discharged his weapon at Decedent and took cover as Decedent returned fire. Officer Wright's gunfire hit Decedent and resulted in his death. All of this occurred in less than two minutes after Officer Hummell announced that he had seen Decedent through the front door.

         Plaintiff brought suit on behalf of Decedent against the Metropolitan Government ("Defendant") pursuant to the Governmental Tort Liability Act, Tenn. Code Ann. § 29-20-205. In the complaint as amended, Plaintiff contends the police officers failed to abide by General Order 18.110, Interviewing and Transporting Mentally Ill. Persons, which would have caused them to withdraw from the home after seeing Decedent ignore Officer Hummell's knocking at the front door and contact the Mobile Crisis Response Team. Plaintiff relies on the fact that the Officer Safety Alert identified Decedent as paranoid for the proposition that the police were aware Decedent had mental disabilities. Plaintiff also contends that Decedent was mentally impaired, and the officers "failed to make a reasonable investigation as to whether [Decedent] posed a danger to himself and others." Further, Plaintiff contends the police officers acted recklessly in attempting to serve the capias by not acting pursuant to General Order 18.110 and Emergency Action Plan #19.[1]

         Defendant moved for summary judgment on the basis there was no duty for the officers to avoid serving the warrant or to retreat after seeing Decedent walk toward the rear of the house. Defendant maintained the risk was not foreseeable where Decedent had been arrested by the Metropolitan Nashville Police Department ("MNPD") three times in recent months without an incident of violence, information that was available to Officer Hummell prior to attempting to serve the outstanding warrant.[2] Defendant also contended that the General Order and internal policies, procedures and guidelines of the MNPD upon which Plaintiff relied did not establish a duty enforceable in tort. Relying on Johnson v. Rowswell, Defendant contended that courts in Tennessee "have not found internal policies to create a legal duty and have even questioned whether internal policies are admissible for any purpose whatsoever." No. M2009-00731-COA-R3-CV, 2009 WL 3460365, at *7 (Tenn. Ct. App. Oct. 29, 2009).

         Alternatively, Defendant asserted that if the MNPD officers owed a duty with respect to how and when they served the felony warrant, it was entitled to summary judgment because there was no breach of that duty. Defendant insisted that Decedent was not subject to the mentally ill persons policy or special precautions because Plaintiff conceded that Decedent had not been diagnosed with a mental illness, had not been treated for a mental illness, and was capable of making his own decisions at the time of his death. Defendant also contended that the officers did not violate General Order 18.110 because the General Order only applies when officers come into contact with someone in the absence of a violation of the law or involving a minor violation of the law. Here, the officers were present at Decedent's residence to serve a felony warrant, which they had a public duty to serve. Additionally, the General Order applies when the officers are interacting with the person at issue and that person behaves in a way that puts the officers on notice that he is an individual with mental illness who poses a substantial likelihood of serious harm to himself or others at the time. Defendant maintained that the officers had not been interacting with Decedent for the officers to be on notice of any abnormal behavior on the part of Decedent. Thus, Defendant contended that the General Order did not apply to the facts of this case.

         Defendant also maintained that the MNPD officers did not violate "Emergency Action Plan # 19 Hostage/Barricade Situations" or the "Call Out Guidelines." Plaintiff's assertion is that the MNPD officers breached a duty by attempting to serve the warrant before calling in their supervisor or otherwise requesting the assistance of the Special Weapons and Tactics Team (SWAT). Defendant maintains that the officers had no reason to be on notice that Decedent would act in a hostile manner.

         In his response in opposition to the motion for summary judgment, Plaintiff argued that Officer Hummell knew Decedent had been involved in a number of incidents involving his paranoia and that Officer Hummell was aware Decedent posed a potential threat to the officers' safety. He also relied on the deposition testimony of Steve Brommer to establish that Detective Roland said Officer Hummell saw Decedent carrying a firearm as he walked to the rear of the house. Based on their training, Plaintiff argues the officers should have assumed that Decedent would not respond appropriately to any orders they gave due to his paranoia. As such, Plaintiff asserted that Officer Hummell should have alerted his supervisor as required by General Order 18.110 and requested a Mobile Crisis Team to aid in a safe surrender of Decedent. Because the officers failed to call a supervisor or the Mobile Crisis Team to help them recognize and properly respond to persons with mental illness and disabilities, Plaintiff argued the officers acted recklessly.

         Defendant objected to the deposition testimony of Steve Brommer as inadmissible hearsay. Defendant maintained that Plaintiff failed to establish an applicable hearsay exception.

         In its order granting summary judgment, the trial court held that (1) the deposition testimony of Steve Brommer was inadmissible hearsay; (2) the police officers owed a general duty to the public at large when serving the felony capias; (3) the internal policies and procedures of the Metropolitan Police Department did not establish the guidelines for a duty enforceable in tort; (4) there were no genuine issues of material fact to show the police officers acted recklessly; thus, the special duty exception to the public duty doctrine did not apply; and (5) because the special duty doctrine did not apply, the police officers and the Metropolitan Government were immune from liability. Further, the court found Plaintiff's action was barred by the doctrine of comparative fault. The court explained that even though Officer Wright fired the first shot, it was undisputed that Decedent raised a loaded weapon at Officer Wright before he opened fire. Resultantly, the court found that reasonable minds could not disagree as to Decedent being at least 50% at fault for his injuries and death as a result of his conduct.

         Issues

         The parties raise several issues on appeal which we have consolidated and rephrased as follows:

1. Did Plaintiff waive the issues he asserts on appeal by failing to follow the requirements of Tenn. R. App. P. 27(a)(7)?
2. Did the trial court err in holding that a third party's testimony concerning what Officer Hummell said at the scene was inadmissible hearsay within hearsay because the statement attributed to Officer Hummell was not against his personal interest?
3. Did the trial court err in holding that the Metropolitan Government was entitled to summary judgment as a matter of law because it did not owe a special duty to Decedent, and it did not breach any duty owed to Decedent?
4. Did the trial court err in holding the claim was barred by the doctrine of comparative fault based on the undisputed fact that Decedent was at least 50% at fault for his injuries and death because he aimed a loaded weapon at the police officer before the officer opened fire?

         Standard of Review

         This court's standard for reviewing a trial court's grant of a motion for summary judgment pursuant to Tenn. R. Civ. P. 56 is de novo without a presumption of correctness. Rye v. Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015). Accordingly, this court must make a fresh determination of whether the requirements of Tenn. R. Civ. P. 56 have been satisfied. Id. In so doing, we consider the evidence in the light most favorable to the ...


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