Under the Tennessee Governmental Tort Liability Act, Tennessee counties and cities are liable for the negligent actions of their employees. In Giggers v. Memphis Housing Authority, No. W2010-00806-SC-R11-CV, the Tennessee Supreme Court held that immunity under the GTLA is always removed whenever an employee violates a governmental entity’s established policy.
In Giggers, a resident of a housing project operated by the Memphis Housing Authority had a bad day. He elected to remove some of his hostility by firing a gun at the housing project’s security office. Unfortunately, the plaintiff’s father was in the path of the gunfire. He died as a result of the gunshot wounds.
The plaintiff sued MHA alleging that MHA knew that the shooter was dangerous yet failed to evict him. Apparently, the angry shooter previously committed an aggravated assault upon another resident. In response to this incident, MHA placed the shooter “on probation.”
The initial reaction of most people is that the government is not liable for the actions of a criminal. In their first appeal, the Tennessee Supreme Court held that MHA, as a landlord, owed a duty to the residents to protect them. So, the question on this appeal is whether MHA acted negligently.
The answer to this question depends upon a subtlety of the GTLA. If the injury resulted from a
“discretionary” act, the entity retains its immunity. If the injury results from an “operational”
act, immunity is removed and the government is liable.
MHA argued, predictably, that its decision of whether to evict a tenant is a “discretionary” decision because it involves the exercise of decision-making. True, the Court noted, the employee makes a decision – to evict or to not evict. That decision does not constitute “planning
or policy making” – two essential elements of a discretionary act under the GTLA. Without those elements, the decision is an “operational” act.
Hidden in this decision is an important message. The plaintiff argued that MHA violated its
“one-strike” policy when it failed to evict the shooter after the first incident. The Court did not rule on this specific issue because MHA disputed the existence of this “one-strike” policy. Instead, the Court remanded the case to the trial court with the instruction that any act that violates an established policy is always an operational act.
THE MORAL OF THIS STORY – REVIEW YOUR POLICIES IMMEDIATELY.
At least for governmental immunity purposes, any violation of a policy is always Bad News.
See Giggers v. Memphis Housing Authority, No. W2010-00806-SC-R11-CV (Tenn. April 2, 2012)
