§31.3 Discretionary Function Exception

The Case: Limbaugh v. Coffee Medical Center, 59 S.W.3d 73 (Tenn. 2001)

The Basic Facts: Plaintiff, originally acting as the conservator for his mother, filed suit against Defendant medical center and its employee, a nursing assistant, to recover damages for his mother’s injuries when she was assaulted by the nursing assistant.

The Bottom Line:

• “We next address whether CMC is nevertheless immune from tort liability under section 29-20-205(1), the discretionary function exception. This exception immunizes local governmental entities from liability for an employee’s negligence if the injury arises out of “the exercise or performance or the failure to exercise or perform a discretionary function, whether or not the discretion is abused.” Essentially, the discretionary function exception prevents the use of tort actions to second-guess what are essentially legislative or administrative decisions involving social, political, economic, scientific, or professional policies or some mixture of these policies. Doe v. Coffee County Bd. of Educ., 852 S.W.2d 899, 907 (Tenn. Ct. App. 1992) (citing United States v. Gaubert, 499 U.S. 315, 323 (1991)). The rationale for preserving immunity for certain acts performed by governmental entities is that the government should be permitted to operate without undue interference by the courts, as courts are often “ill-equipped to investigate and balance the numerous factors that go into an executive or legislative decision.” Bowers v. City of Chattanooga, 826 S.W.2d 427, 431 (Tenn. 1992) (quoting Wainscott v. State, 642 P.2d 1355, 1356 (Alaska 1982)); see also Carlson v. State, 598 P.2d 969, 972 (Alaska 1979).” 59 S.W.3d at 84-85.

• “In Bowers v. City of Chattanooga, this Court recognized that a more precise method of analysis was needed for determining which acts are entitled to discretionary function immunity. Consequently, we adopted the planning-operational test under which it is the “nature of the conduct,” that is, the decision-making process, and not the “status of the actor,” Bowers, 826 S.W.2d at 430-31, that governs whether the exception applies. See also United States v. Gaubert, 499 U.S. 315, 322 (1991). Under this analysis, a planning decision is most likely to reflect a course of conduct that was determined after consideration or debate by those in charge of formulating plans or policies. Bowers, 826 S.W.2d at 430 (citing Carlson, 598 P.2d at 972-73). Decisions that rise to the level of planning or policy-making are considered to be discretionary acts requiring judicial restraint and are, therefore, not subject to tort liability. On the other hand, decisions that merely implement pre-existing policies and regulations are considered to be operational in nature and require the decision-maker to act reasonably in implementing the established policy. If the policy, regulation, or other standard of procedure mandates specific conduct, then any employee reasonably complying with that direction will not abrogate the entity’s immunity if the action furthers the underlying policies of the regulation. See generally Chase v. City of Memphis, 971 S.W.2d 380, 384 (Tenn. 1998). If such an employee does not act reasonably but pursues a course of conduct that violates mandatory regulation, the discretionary function exception will not apply because the action would be contrary to the entity’s established policy.” Id.; see also Gaubert, 499 U.S. at 324. Id. at 85.

• “Turning to the facts in this case, the administrator of the nursing home at the time of Ms. Limbaugh’s abuse testified as to the existence of certain standards for disciplining an employee who has exhibited combative behavior. According to Mr. Moore’s testimony, these standards required that the incident be reported to the State within twenty-four hours of its occurrence and that the offending employee be sent home and “placed on leave,” presumably also within that twenty-four hour period to await the State’s investigation. Applying the foregoing principles, we find that the nursing home’s broad discretion to implement a policy governing the questions of whether and how to discipline combative employees is indeed a policy determination that cannot give rise to tort liability. However, CMC negligently failed to follow the guidelines designed to prescribe the proper disciplinary measures to impose upon Ms. Ray after the incident involving Jennie Cox. Accordingly, the discretionary function exception to the waiver of governmental immunity does not bar recovery for Mr. Limbaugh’s claims against the negligent nursing home. Therefore, we reverse the judgment of the intermediate court and hold that CMC is liable for Ms. Limbaugh’s injuries proximately caused by its negligent acts.” Id. at 85-86.

Other Sources of Note: Chase v. City of Memphis, 971 S.W.2d 380, 384 (Tenn. 1998) (noting that “factors to be considered in determining whether a decision is discretionary and immune under the GTLA are: (1) whether the course of conduct was determined after consideration or debate by an individual or group charged with the formulation of plans or policies; (2) whether the decision resulted from an assessment of priorities by an individual or group responsible for formulating plans or policies; and (3) whether the decision is not of the type properly reviewable by courts which are typically ill equipped to investigate and balance numerous factors that go into executive or legislative decision.”).

Recent Cases: Condra v. Bradley County, No. E2007-01290-COA-R3-CV, 2008 WL 5397532 (Tenn. Ct. App. Jan. 28, 2009) (reversing summary judgment finding defendant county did not affirmatively show a lack of actual or constructive notice of the allegedly dangerous condition at intersection, and did not submit affidavit or other evidence to show that its maintenance of the intersection was a discretionary function); Small ex rel. Russell v. Shelby County Schools, No. W20070-00045-COA-R3-CV, 2008 WL 360925 (Tenn. Ct. App. Feb. 12, 2008) (school board not entitled to discretionary function immunity for claim for negligent failure to follow school board policy).

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