§31.15 Special Duty Exception to the Public Duty Doctrine

The Case: Matthews v. Pickett County , 996 S.W.2d 162 (Tenn. 1999).

The Basic Facts: Plaintiff was a wife who obtained a protection order against her estranged husband after he attacked her. Plaintiff brought suit against the Defendant county after police officers failed to arrest the husband when he returned to Plaintiff's home at a later date and attempted to break in, threatened her and ultimately destroyed her property.

The Bottom Line:

• "The Sixth Circuit Court of Appeals certified the following question for our resolution: 'May the existence of an order of protection give rise to a 'special duty' to protect, and, if so, does the special duty extend to the protection of property?'" 996 S.W.2d at 163.
• "In Ezell v. Cockrell, 902 S.W.2d 394 (Tenn. 1995), this Court held that the common law doctrine of public duty and its exception, the special duty doctrine, survived the enactment of the GTLA. The public duty doctrine provides immunity to public employees for injuries that are caused by a breach of a duty owed to the public at large. Id. at 397. The public duty doctrine, however, is only viable as a defense to liability when immunity has been removed under the GTLA. Chase, 971 S.W.2d at 385. Accordingly, neither the public duty doctrine nor the special duty exception expands the government's exposure to tort liability. The doctrine merely operates to provide an additional layer of defense to acts or omissions not immune under the GTLA." Id. at 164-65.
• "The public duty doctrine defense is subject to the special duty exception. The special duty exception does not create liability but operates to negate the public duty doctrine defense and allows a plaintiff to pursue a viable cause of action under the GTLA. The special duty exception is applicable when:
  1. a public official affirmatively undertakes to protect the plaintiff and the plaintiff relies upon the undertaking;
  2. a statute specifically provides for a cause of action against an official or municipality for injuries resulting to a particular class of individuals, of which the plaintiff is a member, from failure to enforce certain laws; or
  3. a plaintiff alleges a cause of action involving intent, malice, or reckless misconduct.
  Chase , 971 S.W.2d at 384; Ezell, 902 S.W.2d at 402." Id. at 165.
• "Subsection (1) applies to the facts of this case. The order of protection in this case was not issued for the public's protection in general. The order of protection specifically identified Ms. Matthews and was issued solely for the purpose of protecting her. Cf. Ezell, 902 S.W.2d at 403 (statute prohibiting drunk driving does not specify an individual but undertakes to protect the public in general from intoxicated drivers). Ms. Matthews apparently relied on the court's order of protection. She contacted the sheriff's department and requested that it provide her with protection pursuant to the order of protection. Accordingly, the special duty exception to the public duty doctrine is applicable to this case."
• "The defendants argue that, if a special duty did exist in this case, the special duty extended only to liability for personal injury and did not extend to liability for damages to Ms. Matthews' property. We disagree. The focus is upon the relationship between the parties and not upon a specific harm. If a special relationship does exist, the public duty doctrine defense is negated, and immunity conferred by the doctrine is removed." Id.
• "The deputies had a duty to arrest Winningham if there were reasonable cause to believe that Winningham had violated the order of protection. Tenn. Code Ann. § 36-3-611. If the deputies breached the duty owed to Ms. Matthews, she may recover damages proximately caused by that breach, to the extent permitted by the provisions of the GTLA." Id.

Other Sources of Note: Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748 (2005) (holding that Colorado law did not create personal entitlement to police enforcement of restraining orders; and a wife did not have protected property interest in police enforcement of restraining order).

Recent Cases: 

Ford v. The New Great Hyde Park Missionary Baptist Church of Memphis , Nos. W2006-02614-COA-R9-CV, W2006-02615-COA-R9-CV, W2006-02616-COA-R9-CV, 2007 WL 4355490 (Tenn. Ct. App. Dec. 12, 2007) (affirming decision of trial court in part on interlocutory appeal finding insofar as plaintiffs allege misconduct by governmental entity that could be deemed reckless, special duty exception to public duty doctrine applies and the governmental entity is not immune from liability).