Day on Torts - New Post: TN GTLA immunity retained where claim related to excessive use of police force.

Where plaintiff’s Tennessee GTLA claims all related to the allegation that airport officers used excessive force when interacting with and eventually detaining him, defendant airport authority “retained immunity under the civil rights exception in [Tenn. Code Ann.] § 29-20-205(2).” In Nichols v. Metropolitan Nashville Airport Authority, No. M2020-00593-COA-R3-CV (Tenn. Ct. App. April 15, 2021), plaintiff was asked to leave the Nashville airport by airport police officers. While the officers were escorting plaintiff to the exit, they “attempted an ‘arm bar’ restraint,” which led to plaintiff falling and sustaining facial injuries.

Plaintiff filed this suit under the GTLA, asserting claims against the airport authority for “(1) negligence; (2) negligent infliction of emotional distress; and (3) negligent hiring, training, supervision, and retention.” Defendant filed a motion to dismiss, arguing that this claim arose out of civil rights and that immunity was therefore retained under the GTLA. Although the trial court initially denied the motion, it granted the motion after the opinion in Cochran v. Town of Jonesborough, 586 S.W.3d 909 (Tenn. Ct. App. 2019), was designated for publication. On appeal, dismissal was affirmed.

The GTLA provides that “immunity from suit for 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…civil rights.” (quoting Tenn. Code Ann. § 29-20-205(2)). “When determining whether a governmental entity retains immunity under the GTLA, our courts look to the gravamen of the claim rather than the characterization of the claim by the plaintiff.” (internal citation omitted). The issue here, then, was “whether the gravamen of Plaintiff’s claim [was] a civil rights claim for excessive use of force or ‘simple negligence.’”

The Court looked at the Cochran opinion, as well as the opinion in Merolla v. Wilson County, No. M2018-00919-COA-R3-CV, 2019 WL 1934829 (Tenn. Ct. App. May 1, 2019), where it had previously examined the parameters of the civil rights exception to the GTLA, with both of those cases being found to fall within the exception. Using the reasoning outlined therein, the Court in this case explained that while plaintiff argued that defendant should be held vicariously liable for the officers’ actions in using the arm bar restraint and should be held directly liable for failing to ensure that the officers had proper training and/or proper instruction, the “’common thread’ in these claims [was] that the airport officers ‘used more force than was necessary under the circumstances.’” The Court reasoned:

[W]e agree with the trial court’s finding that Defendant retained immunity under the civil rights exception in § 29-20-205(2). The gravamen of Plaintiff’s claim is that the officers used excessive force, i.e., failed to use reasonable force, given the circumstances. Accordingly, Plaintiff’s claim that Defendant failed to supervise and train the officers is inextricably linked to a civil rights claim, and the civil rights exception in § 29-20-205(2) applies.

(internal citations and quotations omitted).

Plaintiff argued that “the allegations in his complaint cannot equate to a claim for excessive use of force because he did not allege that his injury arose out of ‘intentional’ conduct,” and civil rights is listed in the statute along with “several intentional torts for which immunity is preserved.” (internal citations omitted). The Court stated, though, that plaintiff “misconstrue[d] the intentional conduct requirement in claims based on excessive use of force.” The Court looked to claims brought under 42 U.S.C.A. § 1983, noting that claims thereunder do not require “a showing that the officer had a specific intent to deprive the plaintiff of a constitutional right,” but that recovery has instead been allowed “when the policeman’s conduct was conscious, volitional and purposeful.” (citations omitted). Here, “plaintiff’s complaint alleges an injury due to conduct that was conscious, volitional and purposeful,” and thus these actions could fall within the civil rights exception.

Because the GTLA civil rights exception applied, defendant retained immunity and dismissal was affirmed.

The case law surrounding this GTLA exception developed significantly with the publication of the Cochran opinion in 2019, and this case continues that line of reasoning. If you have a potential GTLA case dealing with use of force by police officers, this line of opinions is a must read.

NOTE: This opinion was released 2.5 months after oral arguments in this case