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§31.12 Public Duty Doctrine

The Case: Ezell v. Cockrell , 902 S.W.2d 394 (Tenn. 1995).

The Basic Facts: A drunk driver injured Plaintiff and killed her husband. The drunk driver had been stopped by the police and permitted to continue to drive. Plaintiff sued the governmental entity employing the police officer, saying his negligent failure to detain the drunk driver was a cause of her injuries and her husband's death.

The Bottom Line:

  • "[The issue is] whether a police officer owes a duty of care to a third party injured by a drunk driver whom the police officer has failed to arrest." 902 S.W.2d at 396.
  • "The public duty doctrine originated at common-law and shields a public employee from suits for injuries that are caused by the public employee's breach of a duty owed to the public at large. [Kelly M. Tullier, Governmental Liability for Negligent Failure to Detain Drunk Drivers, 77 Cornell L.Rev. 873, 886 (1992)]. The doctrine can be traced to the United States Supreme Court's decision in South v. Maryland, 59 U.S. (18 How.) 396, 15 L.Ed. 433 (1855), which held that a sheriff is not liable for failing to protect a kidnap victim because the sheriff's duty to keep the peace was 'a public duty, for neglect of which he is amenable to the public, and punishable by indictment only.' Id. at 403." Id. at 397.
  • "Thereafter, the public duty doctrine was widely accepted by most state courts, including Tennessee, where one of the earliest applications of the doctrine occurred Irvine v. Chattanooga, [47 S.W. 419 (Tenn. 1898)]. There, this Court held that a city is not liable to a citizen whose home is destroyed by fire through the negligence or inefficiency of the city's fire department because the duty to extinguish fires is a public one, not owed to any individual in particular. See also State to use of Cardin v. McClellan, 85 S.W. 267, 269 (Tenn. 1905)]; Cary v. Brown , 3 Tenn.Civ.App. (Higgins) 399, 401-02 (1912)." Id. (footnote omitted).
  • "The most recent statement of the public duty doctrine by this Court was Bennett v. Stutts, 521 S.W.2d 575, 576 (Tenn. 1975), where we wrote:
    It is the settled law in this state that private citizens, as such, cannot maintain an action complaining of the wrongful acts of public officials unless such private citizens aver special interest or a special injury not common to the public generally. (Citations omitted.)"
    Id .
  • "As we have often recognized, the imposition of a duty in any negligence action reflects society's contemporary policies and social requirements concerning the right of individuals and the general public to be protected from another's act or conduct. Bradshaw v. Daniel, [854 S.W.2d 865, 870 (Tenn. 1993)]." Id.
  • "A number of public policy considerations have been advanced to explain and support adoption of the public duty doctrine. See generally , Note, [Police Liability for Negligent Failure to Prevent Crime, 94 Harv. L. Rev. 821, 832-35 (1981)]. One policy consideration frequently expressed is that individuals, juries and courts are ill-equipped to judge governmental decisions as to how particular community resources should be or should have been allocated to protect individual members of the public. See, e.g., Morgan v. District of Columbia, [468 A.2d 1306, 1311 (D.C. 1983)]. Some courts have theorized that severe depletion of those resources could well result if every oversight or omission of a police official resulted in civil liability. Id. They have also observed that such a rule would place police officials in the untenable position of insuring the personal safety of every member of the public, or facing a civil suit for damages, and that the public duty doctrine eliminates that dilemma. Landis v. Rockdale County, 212 Ga.App. 700, 445 S.E.2d 264, 268 (1994) (where the Georgia Court of Appeals applied the public duty doctrine and stated that '[a] policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause or being mulcted in damages if he does.')." Id. at 397-98.
  • "Another policy consideration justifying recognition of the public duty doctrine is that police officials often act and react in the milieu of criminal activity where every decision is fraught with uncertainty. Morgan v. District of Columbia, 468 A.2d at 1311. Illustrative of that approach was the Connecticut Supreme Court's endorsement of the public duty doctrine in a failure-to-arrest case:
    [t]he adoption of a rule of liability where some kind of harm may happen to someone would cramp the exercise of official discretion beyond the limits desirable in our society. Should the officer try to avoid liability by removing from the road all persons who pose any potential hazard, he may find himself liable in many instances for false arrest. We do not think that the public interest is served by allowing a jury of laymen with the benefit of 20/20 hindsight to second-guess the exercise of a policeman's discretionary professional duty. Such discretion is no discretion at all.
    Shore v. Town of Stonington , 444 A.2d 1379, 1384 (Conn. 1982)." Id. at 398.
  • "Finally, many courts subscribing to the public duty doctrine have emphasized that mechanisms, other than civil negligence actions, exist wherein individual officials may be held accountable for dereliction of duty, for instance, internal disciplinary proceedings or formal criminal prosecutions. Morgan v. District of Columbia, 468 A.2d at 1312. Such courts have concluded that, on balance, the community is better served by a policy that both protects the exercise of law enforcement discretion and affords a means of review by supervisory personnel who are best able to evaluate the officer's alleged negligent behavior." Id.
  • "Many of the public policy considerations relied upon to support recognition and retention of the public duty doctrine have also been advanced in support of the doctrine of governmental immunity, which has been abolished or modified by statutes in most states, including Tennessee. See Tenn. Code Ann. §§ 29-20-101, et seq. In the wake of these statutes, the public duty doctrine has come under criticism from some commentators who view the doctrine as governmental immunity under another guise. Moreover, some courts have abandoned the doctrine, citing, among other things, its inconsistency with statutes modifying or abolishing governmental immunity." Id. (footnotes omitted).
  • "Nevertheless, a clear majority of jurisdictions continue to adhere to the public duty doctrine, despite the passage of statutes modifying or abolishing the doctrine of governmental immunity, concluding that, in both law and policy, the rule is sound and necessary." Id. at 399 (footnotes omitted).
  • "Although the continuing viability of the public duty doctrine has been the topic of discussion in a large number of decisions from other jurisdictions, no reported Tennessee case has addressed the issue since enactment of the Tennessee Governmental Tort Liability Act, in 1973. The plaintiff urges us to hold that the doctrine was abolished by passage of the Act." Id. (footnotes omitted).
  • "The Tennessee Governmental Tort Liability Act ('the Act'), reaffirms the general rule of immunity from suit for governmental entities, and expressly extends the common-law immunity to proprietary functions. Tenn. Code Ann. § 29-20-201 (1980 & Supp.1994); Gordon v. City of Henderson, 766 S.W.2d at 786." Id.
  • "Immunity is then waived by the Act in limited and enumerated instances for certain injuries. The limited waiver of governmental immunity provided for in the Act is in clear derogation of the common law. Austin v. Shelby County, [640 S.W.2d 852, 854 (Tenn. Ct. App. 1982)]. Generally, statutes in derogation of the common law are to be strictly construed and confined to their express terms, Cardwell v. Bechtol, [724 S.W.2d 739, 744 (Tenn. 1987)], and that rule of construction has been expressly incorporated into the Act, which provides that '[w]hen immunity is removed by this chapter, any claim for damages must be brought in strict compliance with the terms of this chapter.'" Id. (footnotes omitted).
  • "This action was brought pursuant to the waiver of immunity contained in Tenn. Code Ann. § 29-20-205 (1980 & Supp.1994), which provides that:
    Immunity from suit of all governmental entities is removed for injury proximately caused by a negligent act or omission of any employee within the scope of his employment by a negligent act or omission of any employee within the scope of his employment except if the injury:
    1. Arises out of the exercise or performance or the failure to exercise or perform a discretionary function, whether or not the discretion is abused;
    2. Arises out of false imprisonment pursuant to a mittimus from a court, false arrest, malicious prosecution, intentional trespass, abuse of process, libel, slander, deceit, interference with contract rights, infliction of mental anguish, invasion of right of privacy, or civil rights;
    3. Arises out of the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order or similar authorization;
    4. Arises out of a failure to make an inspection, or by reason of making an inadequate or negligent inspection of any property;
    5. Arises out of the institution or prosecution of any judicial or administrative proceeding, even if malicious or without probable cause;
    6. Arises out of misrepresentation by an employee whether or not such is negligent or intentional;
    7. Arises out of or results from riots, unlawful assemblies, public demonstrations, mob violence and civil disturbances; or
    8. Arises out of or in connection with the assessment, levy or collection of taxes.
    (Emphasis added by Court.)" Id. at 400.
  • "The public duty doctrine is not expressly listed as an exception to the waiver of immunity for injuries resulting from negligent acts or omissions of governmental employees; however, the duty of care historically imposed upon such employees is not redefined by the statute. Consequently, that standard of care remains the same. Moreover, the overall statutory scheme supports continued recognition of the doctrine. Unlike the statutes in those jurisdictions which have abandoned the public duty doctrine, the Tennessee Governmental Tort Liability Act does not abolish governmental immunity. See Wilson v. Nepstad, 282 N.W.2d at 669; Brennen v. City of Eugene, 591 P.2d at 725. Instead, the Tennessee Act reaffirms and codifies the general rule of immunity for governmental entities, and in fact, extends the rule of immunity beyond its common law scope to proprietary functions." Id.
  • "Although, as the plaintiff points out, the Legislature has waived immunity in the Act for some activities that were protected at common law by the public duty doctrine,FN10 many of the governmental activities traditionally shielded by the public duty doctrine are expressly excepted from the limited waiver of immunity for negligent acts or omissions of governmental employees, under which the plaintiff brought this lawsuit. See Tenn. Code Ann. § 29-20-205(1) (exercise or performance of a discretionary function);FN11 205(3) (issuance of licenses); 205(4) (failure to inspect); -205(7) (civil unrest); and 205(8) (tax collection). Accordingly, we are not persuaded that the Tennessee Governmental Tort Liability Act, which actually reiterates and extends the rule of governmental immunity, abolished, or was intended to abolish, the longstanding common-law public duty doctrine.
    FN10 See e.g. Tenn. Code Ann. § 29-20-203 (removes immunity for injury from unsafe streets and highways, overrulingCary v. Brown, supra); Tenn. Code Ann. § 29-20-202 (removes immunity for injury from negligent operation of motor vehicles overruling Burnett v. Rudd, [54 S.W.2d 718 (Tenn. 1932)]).

    FN11 The City of Chattanooga, in its amicus curiae brief, urges us to hold that the defendants in this action are immune from suit because a police officer's decision of whether or not to arrest is a discretionary function. That issue was not raised by the parties, nor considered by the courts below, and we decline to consider it for the first time before this Court."
    Id .
  • "Moreover, we are in agreement with the courts which have identified valid policy considerations which warrant continued judicial application of the public duty doctrine. We conclude that the doctrine serves the important purpose of preventing excessive court intervention into the governmental process by protecting the exercise of law enforcement discretion. As we observed State v. Jefferson, [529 S.W.2d 674, 689 (Tenn. 1975)], '[i]t is essential to the protection of society that a wide discretion be vested in officers chosen to enforce our laws....'See also, Barratt v. Burlingham, 492 A.2d at 1222; Ashburn v. Anne Arundel County, 510 A.2d at 1084; Fessler by Fessler v. R.E.J., Inc., 514 N.E.2d at 522; see generally, 38 A.L.R.4th at § 3, 1197-1202. Finally, public forms of redress, other than civil actions, exist in Tennessee, as in most other states, to insure that officers who fail to faithfully perform their duties are accountable. Internal disciplinary policies, criminal sanctions, and in the case of publicly elected law enforcement officials, ouster proceedings, are alternative forms of redress. See [Tenn. Code Ann. § 38-8-301 to § 38-8-309 (1991)]; [Tenn. Code Ann. § 39-16-401 to § 39-16-406 (1991)]; [Tenn. Code Ann. § 8-47-101 to § 8-47-126 (1993)]. We think that on balance, the State is better served by a policy that both protects the exercise of law enforcement discretion and provides accountability for failure to perform a duty." Id. at 400-401.

Other Sources of Note: The plaintiff also argued that the "special duty exception" to the public duty doctrine should apply but the Court rejected that argument. The "special duty exception" is addressed elsewhere in this Chapter.

Recent Cases: 

Dean v. Weakley County , No. W2007-00159-COA-R3-CV, 2008 WL 948882 (Tenn. Ct. App. Apr. 13, 2008) (concluding public duty doctrine does not apply to school systems and their teachers and administrators who have duty to exercise reasonable care in supervision and protection of their students); 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, the governmental entity is not immune from liability under public duty doctrine).

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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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