§31.3 Discretionary Function Exception
The Basic Facts: Resident of housing project operated by defendant MHA was killed by a stray bullet fired by another tenant towards security office. Plaintiffs alleged that defendant was negligent in not evicting tenant shooter when he first exhibited violent behavior. Defendant filed motion for summary judgment claiming that federal regulations preempted plaintiffs’ negligence suit and that defendant was immune from suit under Tennessee GTLA.
The Bottom Line:
- “Generally, the GTLA forecloses suits against governmental entities that cause injury when exercising or discharging their duties. An exception to this rule permits a suit against a governmental entity when an employee of that entity acting within the scope of his employment negligently causes injury to another. A governmental entity remains immune from suit, however, if the injury results from a discretionary act of the governmental entity regardless of whether that discretion was abused. The rationale behind this “discretionary function exception” is to prevent courts from questioning decisions of governmental entities that are primarily legislative or administrative.” 363 S.W.3d at 507 (internal citations omitted).
- “To determine whether a governmental entity is entitled to immunity for a discretionary decision, this Court applies the ‘planning-operational test.’ A governmental entity is immune from suit for actions involving ‘planning or policy making.’ When the act is merely ‘operational,’ the entity is not immune.” Id. (internal citations omitted).
- “[A] planning decision usually involves consideration and debate regarding a particular course of action by those charged with formulating plans or policies. A planning decision frequently requires a governmental entity to create policies or plans, formulate specifications or schedules, allocate resources, or determine priorities. Planning or policy-making decisions are not subject to tort liability, and a review of these decisions requires judicial restraint.” Id. (internal citations omitted).
- “Operational decisions, however, implement ‘preexisting laws, regulations, policies, or standards’ that are designed to guide the actions of the governmental entity. An operational decision requires that the decision-maker act reasonably when implementing preexisting policy. Unlike a planning or policy-making decision, an operational decision does not involve the formulation of new policy.” Id. at 507-08 (internal citations omitted).
- “[The Court determined that] [a]lthough HUD’s formulation of policy or procedure may be considered a discretionary function, the implementation of that policy is an operational decision. [HUD regulations list items a housing authority should use when considering whether to evict a tenant, but] [Defendant] MHA uses its judgment when determining whether eviction of a tenant is appropriate. The discretion used to exercise that judgment, however, does not convert an otherwise operational decisions into one that is discretionary. In making eviction decisions, MHA must exercise its discretion within the confines of HUD’s preexisting policies. In that way, MHA’s eviction decisions are operational in nature. To hold otherwise would be to convert every operational decision requiring choice into a discretionary function.” Id. at 508 (internal citations omitted).
Other Sources of Note:
Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73 (Tenn. 2001) (holding that nursing home’s “broad discretion to implement a policy governing the question of whether and how to discipline combative employees is indeed a policy determination that cannot give rise to tort liability,” but that defendant “negligently failed to follow the guidelines designed to prescribe the proper disciplinary measures to impose upon [employee] after [a certain incident],” and discretionary function exception therefore did not apply).
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.").
Parsons v. Wilson County, No. M2014-00521-COA-R3-CV, 2015 WL 5178601 (Tenn. Ct. App. Sept. 3, 2015) (employees following existing procedure to assign top/bottom bunks to inmates was not a discretionary function and no immunity arose); Lewis v. Shelby County, No. W2014-00408-COA-R3-CV, 2015 WL 1778071 (Tenn. Ct. App. April 17, 2015) (summary judgment reversed where trial court only found that one of three grounds alleged by plaintiff fell under discretionary function exception).
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).