The following section from Day on Torts Leading Cases in Tennessee Tort Law​​​ is out of date and should not be used. It remains a part of this site for historical purposes only. An updated version of the book is available by subscription at (Additional information below.)

§69.3 Discretionary Function Immunity

The Case: Lucas v. State , 141 S.W.3d 121 (Tenn. Ct. App. 2004).

The Basic Facts: Two cases involving the State's alleged liability under the Tennessee Claims Commission Act for dangerous conditions existing on two separate highways were consolidated for review. In both cases, the State asserted the defense of discretionary function immunity.

The Bottom Line:

  • "The Tennessee Claims Commission Act, subject to its monetary cap on recoverable damages, accomplished a sweeping abrogation of sovereign immunity as to the State of Tennessee relative to acts or omissions of state employees." 141 S.W.3d at 129.
  • "While the Tennessee Governmental Tort Liability Act applicable to local government entities provides immunity to the local government entity in performance by an employee of a 'discretionary function,' (Tenn. Code Ann. § 29-20-205(a)), the Tennessee Claims Commission Act provides no such immunity for the State of Tennessee." Id.
  • "It is the provision of the statute reserving to the state certain preexisting defenses on which the decision in this case must be predicated. The statute provides in part: 'The state may assert any and all defenses, including common law defenses, which would have been available to the officer or employee in an action against such an individual based upon the same occurrence. The state may assert any absolute common law immunities available to the officer or employee, however, good faith common law immunity may not be asserted.' Tenn. Code Ann. § 9-8-307(d)(Supp.2003)." Id. at 130.
  • "Clearly only 'absolute' common law immunities remain available to the state." Id.
  • "The Supreme Court has consistently held that government officials are entitled to some type of immunity from suits for damages. '[P]ublic officers require this protection to shield them from undue interference with their duties and from potentially disabling threats of liability.' Harlow v. Fitzgerald, [457 U.S. 800, 806 (1982)]. Two types of immunity defenses have generally been recognized: absolute immunity and qualified immunity. Absolute immunity defeats a suit at the outset, provided that the official's actions are within the scope of the immunity. Imbler v. Pachtman, [424 U.S. 409, 419 n. 13 (1976)]. Qualified immunity is asserted as a defense, and shields government officials performing discretionary functions from civil liability if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, supra, [457 U.S. at 818]." Id. at 130-31.
  • "'[O]fficials whose special functions or constitutional status require[] complete protection from suit' are accorded absolute immunity. [Id. at 807.] Absolute immunity from suit has been accorded to judges, Stump v. Sparkman, [435 U.S. 349 (1978)], prosecutors, Imbler v. Pachtman, supra, legislators, Eastland v. United States Servicemen's Fund, [421 U.S. 491 (1975)], and to federal agency officials who perform adjudicatory or prosecutorial functions. Butz v. Economou, [438 U.S. 478 (1978)]. The Supreme Court has been cautious in extending the protection of absolute immunity, and has noted that 'federal officials who seek absolute exemption from personal liability for unconstitutional conduct must bear the burden of showing that public policy requires an exemption of that scope.' [Id. at 506.]" Id.
  • "Qualified immunity has been historically referred to as 'good faith immunity.' See Winchester v. Little, 996 S.W.2d 818, 826 (1998),perm. app. denied July 6, 1999, cert. denied 528 U.S. 1026 (1999)]; Gomez v. Toledo, [446 U.S. 635 (1980)]; Wood v. Strickland, [420 U.S. 308 (1975)]. While the 'good faith' standard was adjusted in Harlow v. Fitzgerald, [457 U.S. 800 (1982)] to shield government officials from liability where 'their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' [457 U.S. at 818], it is clear that Harlow did not convert qualified 'good faith' immunity into absolute immunity since the case was remanded for reconsideration rather than simply dismissed. Absolute immunity defeats a suit at the outset and nothing remains to be addressed by an order of remand. It is only qualified immunity that would allow remand for consideration of the factual basis for either a 'good faith' standard as pre-existed Harlow v. Fitzgerald, or a factual determination post Harlow v. Fitzgerald that official conduct 'does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Id. at 131-32.
  • "Any lingering doubt that 'discretionary function' immunity is, in fact, a qualified immunity and not an absolute immunity is settled by the United States Supreme Court in Anderson v. Creighton, [483 U.S. 635 (1987)] wherein the court observed the tension between government officials abusing their offices on the one hand and being honestly mistaken as to their conduct on the other. Said the court:
    Our cases have accommodated these conflicting concerns by generally providing government officials performing discretionary functions with a qualified immunity, shielding them from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated. See, e.g., Malley v. Briggs, [475 U.S. 335, 341 (1986)] (qualified immunity protects 'all but the plainly incompetent or those who knowingly violate the law'); [id., at 344-345] (police officers applying for warrants are immune if a reasonable officer could have believed that there was probable cause to support the application); Mitchell v. Forsyth, [472 U.S. 511, 528 (1985)] (officials are immune unless 'the law clearly proscribed the actions' they took); Davis v. Scherer, [468 U.S. 183, 191 (1984)]; [id., at 198]. (Brennan, J., concurring in part and dissenting in part); [Harlow v. Fitzgerald, supra, at 819]. Cf., e.g., Procunier v. Navarette, [434 US 555, 562 (1978)]. Somewhat more concretely, whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the 'objective legal reasonableness' of the action, Harlow, [457 U.S., at 819] assessed in light of the legal rules that were 'clearly established' at the time it was taken, [id., at 818].
    Anderson , [483 U.S. at 638-39]." Id. at 135.
  • "Before discussing further the controlling issue involving 'discretionary function' immunity it is helpful to consider the legislative history of the controlling provisions of the Tennessee Claims Commission Act. In the original Act creating the Claims Commission, the controlling provision simply stated: 'The state may assert any and all defenses, including common law defenses, which would have been available to the officer or employee in an action against such individuals based upon the same occurrence.' 1984 Tenn. Pub. Acts 972, sec. 8(d). Since the cases are clear through-out the country that common law immunities are affirmative defenses, we may assume, that under the original Act, both absolute immunities and good faith immunities were available to the state under this provision of the Act. Chapter 105 of the Public Acts of 1985 amended the Claims Commission Act by adding to the above sentence a provision that 'the state may assert any absolute common law immunities available to the officer or employee, however, good faith common law immunity may not be asserted.' 1985 Tenn. Pub. Acts 105, sec. 6.FN5

    By this section of Chapter 105, the legislature clearly determined to separate common law defenses from common law immunities, and to restrict the state to the use of only absolute common law immunity.
    FN5 Section 1 of Chapter 105 added the provision that 'it is the intent of the General Assembly that the jurisdiction of the Claims Commission be liberally construed to implement the remedial purposes of this legislation."
    Id .
  • "At bar the discussion in brief and argument centered around whether or not 'discretionary function' immunity was in fact 'good faith' immunity and thus foreclosed to the state under the express provisions of Tennessee Code Annotated section 9-8-307(d). The discussion is academic, as under no circumstances is any immunity available to the state which could not be characterized as 'absolute immunity,' such being the only type of immunity that survived the enactment of the Tennessee Claims Commission Act, as amended by Chapter 105 of the Public Acts of 1985." Id. at 136.
  • "Efforts to superimpose the 'planning-operational' test of Bowers v. City of Chattanooga onto the Tennessee Claims Commission Act are to no avail given the explicit language used by the legislature in limiting immunities available to the state to 'absolute' immunities. The 'planning operational' test of Bowers involves a construction of the 'discretionary function' provisions of the Tennessee Governmental Tort Liability Act. Tenn. Code Ann. § 29-20-205(a). Aside from the fact that such discretionary function immunity is foreign to the Tennessee Claims Commission Act, it fails to qualify as an 'absolute' immunity." Id.
  • "Whether one refers to 'qualified immunity,' 'discretionary function immunity,' 'discretionary acts immunity,' or 'good faith immunity' is, in the context of this case, academic. None of these characterizations qualify as an 'absolute immunity' and only absolute immunities are available to the state under Tennessee Code Annotated section 9-8-307(d)." Id. at 141.
  • "Subject to monetary caps and limitations to actual damages and court costs, the Claims Commission Act was a sweeping abrogation of sovereign immunity. Hembree v. State, [925 S.W.2d 513 (Tenn. 1996)]. It was the same broad waiver of sovereign immunity as was effected in Savage, [899 P.2d 1270 (Wash. 1995)]. By way of exception to this broad abrogation, the legislature gave back to the state the right to plead absolute immunity. The legislature specifically prohibited the state from relying on 'good faith' immunity. The controlling point is that no matter how one may define 'discretionary function' immunity it cannot be defined as an absolute immunity, and since the statute restricts the state to the defense of absolute immunity only, it necessarily follows that the State simply cannot rely on 'discretionary function' immunity." Id. at 413.

Other Sources of Note: Johnson v. LeBonheur Children's Medical Center , 74 S.W.3d 338 (Tenn. 2002) (recognizing that hospital residents were immune from liability as state employees under Tenn. Code Ann. § 307(h), but holding that nothing in the statute immunizes a private hospital from liability for the acts or omissions of the residents who also acted as agents or servants of the private hospital).

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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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