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§31.10 Limitations on Immunity Arising from Inspections

The Case: Ford v. New Greater 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).

The Basic Facts: "This interlocutory appeal concerns the liability of a municipality. Pursuant to the municipality's ordinances, a municipal inspector inspected a church building. The inspector sent a letter to the owners of the building notifying them that, due to the dilapidated condition of the building, they were in violation of a city ordinance. Over a year later, the building collapsed, killing four people, including three children, and injuring a fifth. The plaintiffs filed suit against the municipality for negligence based on the initial inspection and the municipality's failure to take appropriate action after the initial inspection. Three separate lawsuits were consolidated into this action. The municipality filed a motion for summary judgment, arguing that it was immune from liability. The motion was denied. The municipality was then granted permission for this interlocutory appeal." 2007 WL 4355490 at *1.

The Bottom Line:

  • "The City also contends that it is immune from liability for the Plaintiffs' claims under the GTLA. The general rule of governmental immunity from lawsuits is set forth in Tennessee Code Annotated § 29-20-201. The four exceptions to this general rule are enumerated in Tennessee Code Annotated §§ 29-20-202 through -205. The exception at issue in this appeal is contained in Tennessee Code Annotated § 29-20-205, which removes governmental immunity 'for injury proximately caused by a negligent act or omission of any employee within the scope of his employment . . . .' T.C.A. § 29-20-205 (2000). As to be expected, however, there are exceptions to the exception; Tennessee Code Annotated § 29-20-205 also provides that certain governmental acts or omissions, even if performed negligently, are not actionable. T.C.A. § 29-20-205(1)-(9) (2000). The statute specifically exempts a governmental entity from liability for injuries arising out of the entity's 'failure to make an inspection, or by reason of making an inadequate or negligent inspection of any property.' T.C.A. § 29-20-205(4) (2000). Pursuant to this provision, the City argues on appeal that it is immune from the Plaintiffs' claims herein." Id. at *5 (footnote omitted).
  • "In response, the Plaintiffs argue that they do not challenge Newson's inspection. Rather, they base their claims in part on Newson's actions or the lack thereof after his inspection. Specifically, the Plaintiffs argue that Newson's failure to either obtain the engineer's report or issue a 'Do Not Occupy' warning was a negligent act or omission. Thus, we are required to construe Tennessee Code Annotated § 29-20-205(4) to determine if it applies to the Plaintiffs' claims against the City. In interpreting this statute, we will not extend its express language beyond the ordinary meaning of that language. Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 83 (Tenn. 2001) (opining that Tennessee courts must strictly construe the GTLA because the General Assembly created it in derogation of the common law)." Id.
  • "This Court was faced with a similar issue in the case of Laws v. Water and Light Comm'n of the Town of Greeneville, No. E2002-01152-COA-R3-CV, 2003 WL 22071548 (Tenn. Ct. App. May 8, 2003). In Laws, in order to find leaks in Greeneville's sewers, the Greeneville Water and Light Commission used a procedure that forced smoke through the system. Laws, 2003 WL 22071548, at *1. The Commission's alleged negligence in performing this inspection caused injury to a Greeneville resident by causing smoke to enter her house, which aggravated her chronic lung condition. Id. The resident sued the Commission, asserting that its failure to give her advance warning that it planned to use this procedure was a negligent omission. Id." Id.
  • "The Commission asserted immunity under Tennessee Code Annotated § 29-20-205(4), arguing that 'any warning that might have been given regarding the smoking of the sewers 'would clearly have been given as part of the inspection process and would be an integral part of that process.'' Id. at *2. The trial court found that the Commission was ninety percent at fault in causing the resident's damages, and entered its final judgment accordingly. Id. The Commission appealed, arguing, among other things, that the trial court erred by not holding it immune from liability under section 29-20-205(4). The Court of Appeals held that the Commission was not immune from suit under that provision. Id. at *3. The Laws Court first noted that it was required to strictly construe the GTLA provision at issue because the GTLA 'is in derogation of the common law . . . .' Id. (citing Limbaugh, 59 S.W.3d at 83). The Court found that 'inspection' had a very specific meaning. In light of the mandatory rule of strict construction, the Court declined to 'extend the definition of `inspection' to include the warning of an inspection.' Id." Id. at *6.
  • "In the case at bar, the Plaintiffs' claims against the City, set forth in the Amended Complaint, include allegations that the City (1) negligently failed to condemn the property after Newson's inspection; (2) failed to take action to protect Church members and the public when it knew, from Newson's inspection, that the property was dangerous; (3) failed to enforce the City code requirements; (4) failed to make proper inspections and specifically failed to inspect the Church building before the date of the Church collapse; (5) failed to issue orders to ensure the public safety and failed to require repairs by competent contractors; (6) failed to report the Church's City code violations to the City Attorney; and (7) failed to declare the Church building unfit for public use and to post a notice to that effect." Id.
  • "Thus, some of the Plaintiffs' allegations are based on the City's alleged failure to make proper inspections prior to the date of the Church collapse. Insofar as the Plaintiffs' claims against the City are based on negligent inspection or failure to inspect, the City is immune from liability pursuant to Tennessee Code Annotated § 29-20-205(4)." Id.
  • "The remainder of the allegations in the Amended Complaint, however, do not stem from an alleged negligent inspection or failure to inspect. Rather, they are based on the City's decisions and its failure to act after the inspections were done; specifically, the remaining allegations pertain to the City's alleged failure to either require proper repair of the Church building or post 'Do Not Occupy' warnings. As in Laws, we decline to extend the definition of 'inspection' to include the actions that the City took or did not take after performing the inspection. Therefore, to the extent that the Plaintiffs' claims are based on the City's decisions and actions after inspecting the Church building, and not on negligent inspection or failure to inspect, we hold that Tennessee Code Annotated § 292-0-205(4) does not provide the City with immunity from liability." Id.

Recent Cases: 

Brown v. Chester County School District , No. W2008-00035-COA-R3-CV, 2008 WL 5397532 (Tenn. Ct. App. Dec. 30, 2008) (finding trial court erred in holding school board immune under Governmental Tort Liability Act finding that Tenn. Code Ann. § 29-20-205(4), which does not waive governmental immunity for liability for negligent inspection, does not immunize governmental entity for inspection of property owned and controlled by the governmental entity).

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

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