A GTLA action was brought against the City of Berry Hill and City Manager Joe C. Baker following a construction accident that resulted in serious injuries to John Durling Kemper and the death of Richard Whiteshield. The plaintiffs, employees of Tennessee Technological Consultants, were on-site to disconnect gas utilities during a demolition when an exterior wall collapsed after they began jackhammering it. They alleged that the collapse was partly due to the defendants' failure to enforce OSHA regulations and municipal building codes. The trial court dismissed the claims against the city and Baker on the basis of governmental immunity, supported by a motion for summary judgment. The plaintiffs did not contest the dismissal of claims against other defendants, which included a general contractor and the building's owner. The remaining issue on appeal was whether the immunity enjoyed by the City and Baker could be lifted under Tennessee Code Annotated 29-20-205 and if the special duty exception to the public duty doctrine applied. Ultimately, the appellate court affirmed the trial court's judgment.
Defendants had limited involvement in the events leading to the tragedy. On July 24, 2006, City Manager Baker issued a renovation permit for 2317 Franklin Road to Monell’s Dining and Catering, owned by Young Equities, Inc. The permit allowed for alterations, including changes to wiring, plumbing, HVAC, and structural elements. By November 6, 2006, Inspector McKelvey found the renovation abandoned, leading to the permit's cancellation. David Mangum subsequently purchased the property on January 17, 2007, and a demolition permit was issued the next day to Boatman Construction after an asbestos inspection was cleared. The City had no further involvement in the demolition.
The plaintiffs claim that the City and Manager Baker are liable for negligence, alleging failures to ensure safety regulations were followed, including not requiring an engineering survey, not shoring and bracing the building, and not issuing a stop work order when the renovation was abandoned. They also assert that the trial court's summary judgment order was improper as it did not state legal grounds for the ruling. However, the court focused solely on the defendants' immunity, allowing review without speculation on the ruling's basis.
The plaintiffs' first two claims were based on Occupational Safety and Health Administration (OSHA) regulations, which were dismissed. The court found that Kemper and Whiteshield were employees of TTC and Boatman, working on privately owned property, and thus, the City and Manager Baker were not considered employers under OSHA definitions. Consequently, the City was not responsible for safety measures such as the engineering survey or structural bracing, placing that responsibility on Boatman as the general contractor.
Plaintiffs' claims are rooted in the City of Berry Hill Municipal Code, specifically related to building safety and compliance. The code is intended to promote public safety, health, and welfare through regulations on construction and occupancy standards. Key provisions include:
1. **Purpose (12-101)**: The chapter aims to ensure structural stability, sanitation, and safety from hazards, thereby safeguarding life and property.
2. **Stop Work Orders (12-107)**: The director of building inspection can halt any unsafe work immediately upon notice. In emergencies, no written notice is required, and a placard may be posted to indicate the stop work order. Removing this placard without permission is a violation.
3. **Unsafe Buildings (12-124)**: This section defines unsafe buildings as those that are unsanitary, lack proper egress, pose fire hazards, or are otherwise dangerous. Such buildings are declared illegal and must be repaired or demolished. The director must notify the responsible parties of any unsafe conditions and post a notice prohibiting occupancy until repairs or demolition are completed. It is unlawful to remove this notice or enter the building without permission.
4. **Building Code Compliance (12-119)**: This provision mandates disconnection of utility services prior to demolition, adhering to the International Building Code.
The plaintiffs' allegations center on Inspector McKelvey's alleged negligence in failing to enforce these regulations, with no claims against Manager Baker for any negligence or duty to prevent McKelvey's actions. Consequently, the claims against Manager Baker were dismissed.
A plaintiff claiming negligence against a government employee must demonstrate the existence of a duty or standard of care. The City contends that it is immune from liability regarding Inspector McKelvey’s alleged negligence under the Government Tort Liability Act (GTLA) and the public duty doctrine. The court's review of the trial court's summary judgment decision is de novo, focusing on whether undisputed facts support the conclusion that the party seeking summary judgment is legally entitled to it. To grant summary judgment, the court must view evidence in the light most favorable to the plaintiffs, discarding countervailing evidence and recognizing any material factual disputes.
Local governmental entities generally possess immunity from lawsuits unless explicitly allowed by statute. The GTLA codifies this immunity but lists specific exceptions where it is waived, such as injuries caused by a negligent act of an employee acting within the scope of employment. The initial question in a negligence action against a local governmental entity is whether immunity has been waived under the GTLA. Even if immunity is waived, the public duty doctrine provides an additional defense for governmental entities against claims that do not qualify for GTLA exceptions. This doctrine applies to both officials and entities, requiring plaintiffs to demonstrate a special duty to themselves rather than a general duty to the public. For the plaintiffs to succeed in their claims against the City regarding Inspector McKelvey's alleged negligence, they must show that their claims fall under an exception to the GTLA and meet the special duty requirement of the public duty doctrine. The court concluded that, as a matter of law, the plaintiffs’ claims do not meet these criteria.
The GTLA (Governmental Tort Liability Act) removes immunity for governmental entities from lawsuits for injuries caused by negligent acts or omissions by employees within their employment scope, with specific exceptions. These exceptions include: (1) discretionary functions, (2) actions regarding permits and licenses, and (3) failures in inspections. Plaintiffs claim Inspector McKelvey failed to ensure utilities were disconnected prior to demolition, which falls under the failure to inspect category, thus granting the City immunity. Additionally, the claim that Inspector McKelvey negligently failed to issue a stop work order also falls under permit-related immunity.
The public duty doctrine further reinforces the City’s immunity, stating that private citizens cannot sue public officials unless they can demonstrate a 'special duty' that is not owed to the public at large. The special duty exception can arise from (1) an official's affirmative undertaking to protect the plaintiff, (2) a statute providing a cause of action for a specific class of individuals, or (3) allegations of intent, malice, or reckless misconduct. Plaintiffs assert reckless misconduct by Inspector McKelvey for not notifying Mr. Mangum of the unsafe condition of a building, but the facts show Mr. Mangum had actual notice of the building's state and was in the process of addressing the unsafe condition with the necessary permits and preparations already in place when the accident occurred.
An owner of an unsafe building in Berry Hill, Tennessee, can address the unsafe condition through either repair or demolition. In reviewing the case favorably for the Plaintiffs, it was determined that no reasonable person could conclude that Inspector McKelvey acted with intent, malice, or recklessness. This conclusion aligns with previous case law, including Ezell and Ford v. New Greater Hyde Park Missionary Baptist Church. Although there was evidence suggesting recklessness due to the inspector’s failure to post a 'do not occupy' sign despite knowledge of the building’s defects and ongoing occupancy, the special duty exception does not apply. As a result, the City retains immunity from the Plaintiffs' claims under the public duty doctrine. The trial court's judgment is affirmed, and the matter is remanded with costs of appeal assessed against the Plaintiffs.
