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Gregory v Metropolitan Government of Nashville and Davidson County

Case No. M2011-02061-COA-R3-CV (TN Ct. App., Oct. 26, 2012)

This is a negligence claim under Tennessee’s Governmental Tort Liability Act. The decedent was involved in a serious vehicular accident. A witness called the defendant municipality’s 911 emergency communications center for help. The 911 responders went to the accident scene and transported the decedent to a local hospital, where he died. The decedent’s mother filed this lawsuit against the municipality, alleging that the 911 operator was negligent in failing to summon emergency personnel from a neighboring county, because those responders were closer to the scene of the accident and could have provided aid to the decedent sooner. The municipality filed a motion for judgment on the pleadings, arguing inter alia that it owed no duty to summon aid outside of its jurisdiction. The trial court granted the motion, and the plaintiff now appeals. We affirm.

FACTUAL BACKGROUND



On May 30, 2010, 18-year-old James Ballentine (“decedent”) was involved in a terrible collision in which his vehicle rolled over. The crash occurred at 5:09 p.m. on Springfield Highway in Goodlettsville, Tennessee, located in the General Services District of Davidson County and within sight of the boundary line between Davidson County and Robertson County. At 5:10 p.m. and 5:11 p.m., unidentified bystanders placed emergency 911 calls to the Emergency Communications Center of Defendant/Appellee Metropolitan Government of Nashville and Davidson County (“Metro Government”). The 5:11 p. m. caller described the scene to the 911 dispatcher: “rollover, smoke coming from vehicle, one vehicle on its side/ believes four people pinned inside, people are trying to get the people out of the vehicles, worried the vehicles are going to catch on fire.” The decedent was one of the persons pinned in this vehicle. The 911 operator dispatched emergency vehicles and personnel from Goodlettsville, which is in Davidson County. When emergency personnel arrived on the scene, they extricated the decedent from his vehicle. He was then transported to Vanderbilt University Hospital, where he died some 12 hours after the crash.

On February 28, 2011, the decedent’s mother, Plaintiff/Appellant Lori Gregory (“Ms. Gregory”), filed this lawsuit against Metro Government in the Circuit Court of Davidson County, Tennessee. She filed as the decedent’s representative, alleging claims pursuant to Tennessee’s Governmental Tort Liability Act (“GTLA”), Tennessee Code Annotated § 29- 20-201, et seq. She alleged in the complaint that the nearest available first responders were not located in Davidson County, but rather were located in the cities of Ridgetop and Greenbrier, which are located in Robertson County. The refusal by Metro Government to summon help from these closer cities, she asserted, caused unnecessary delay that reduced the decedent’s chances of survival or at least increased his pain and suffering. Ms. Gregory claimed that the harm to her son caused by the delay was highly foreseeable, and she cited similar previous incidents near the county line – some involving fatalities. The complaint stated:

(6) The nearest municipality which could have provided emergency assistance to the endangered occupants of these vehicles was the City of Ridgetop, which had an emergency vehicle and trained personnel at the ready about one and a half miles away and capable of responding to the location of the crash on Springfield Highway within less than two minutes.

(7) The City of Greenbrier similarly had an emergency vehicle and trained personnel at the ready a short distance away and capable of responding to the location of the crash on Springfield Highway within less than two minutes.

(8) Despite the ready availability of emergency equipment and personnel who could have responded sooner, personnel of the Defendant Metropolitan Government inexplicably dispatched emergency vehicles and personnel from locations more distant than Ridgetop and Greenbrier, resulting in a longer response time.

(9) While awaiting the arrival of emergency medical personnel, the Plaintiff’s decedent was trapped inside his overturned automobile, suspended upside down by his seat belt.

(10) The Plaintiff’s decedent was extricated from his vehicle by emergency personnel of the City of Goodlettsville. He had to wait on a stretcher, with life threatening injuries, for several minutes for ambulance personnel of the Defendant Metropolitan Government to transport him to the emergency room at Vanderbilt University Hospital. On information and belief, Mr. Ballentine was conscious and suffering during this waiting time.

(11) Despite best efforts of emergency room personnel to treat his injuries, the Plaintiff’s decedent died at Vanderbilt Hospital approximately twelve hours after the collision.


Ms. Gregory sought compensatory damages pursuant to the GTLA based on Metro Government’s conduct.
 

 

Judge(s): Holly M. Kirby
Jurisdiction: Tennessee Court of Appeals
Related Categories: Torts
 
Trial Court Judge(s)
Barbara Haynes

 
Court of Appeals Judge(s)
David Farmer
Holly Kirby
Steven Stafford

 
Appellant Lawyer(s) Appellant Law Firm(s)
John Herbison

 
Appellee Lawyer(s) Appellee Law Firm(s)
Alex Dickerson Office of the Metropolitan Government of Nashville and Davidson County Law Department
Andrew McClanahan Office of the Metropolitan Government of Nashville and Davidson County Law Department
James Robinson Office of the Metropolitan Government of Nashville and Davidson County Law Department
Saul Solomon Office of the Metropolitan Government of Nashville and Davidson County Law Department

 

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to vanderbilt university hospital, where he died some 12 hours after the crash.3 victim or to call another fire department to provide such aid. id. in response, the plaintiff immunity shields metro government from liability in this case. finally, she contended that better reasoning—as it moves toward refinement and modification with the was made to “preserve the crucial distinction between a determination that the defendant government had no duty to request emergency medical aid from personnel outside of the jury determined that the municipalities were liable for the decedent’s death based on the or the outcome of this appeal. m2004-02513-coa-r3-cv, 2007 wl 4146025, at * 14 (tenn. ct. app. nov. 20, 2007)). and dismissing the complaint on its face. the trial court held that “the metropolitan the trial court’s grant of a motion for judgment on the pleadings is “in effect a [dismissal] on july 29, 2011, the trial court held a hearing on metro government’s motion for judgment presumption of correctness. insurance for the risk involved. in a somewhat circular fashion, an “emergency” is defined in the act as an occurrence or threat of an12 arrived on the scene, they extricated the decedent from his vehicle. he was then transported while before you call an ambulance.” lindsey, 689 s.w.2d at 858. the decedent died the 911 operator sent the emergency personnel to the wrong address. during the delay of a pre-existing legal duty, she contends, the metro government 911 operator undertook to hospital. the complaint contains no allegation that the goodlettsville emergency personnel acted in a we agree that the mutual aid act is not determinative of the issue presented here. the act judgment on the pleadings, metro government asserted that the public duty doctrine shielded to the mutual aid act also reference such agreements. the complaint in this case, however, made no locations more distant than ridgetop and greenbrier, resulting in a longer response time. v. be the result of negotiation and cooperation. the permissive language in the act indicates responders in robertson county, who were closer to the accident site than the first greenbrier, because those municipalities are located in robertson county. metro (...continued)4 metropolitan government of nashville and davidson county exercise reasonable care to avoid causing foreseeable injury to others. even in the absence 2009); see also fretwell v. chaffin, 652 s.w.2d 755, 756 (tenn. 1983); brown v. hamilton as a corollary, section 58-8-107 was amended to allow a governmental entity to respond to a request for aid tennessee rules of civil procedure. timmins v. lindsey, 310 s.w.3d 834, 838 (tenn. ct. such harm, or in some situations, the nature of a defendant’s duty depends on the resolution of certain factual issues. see9 an occurrence or emergency for any length of time.”). the express purpose of the legislation from the bee attack. id. at *1. mutual aid act provides the default rules governing the request for and receipt of aid among in dragoo, the niland fire district received a 911 call indicating that a victim was being considered a number of public policy considerations, including: on february 28, 2011, the decedent’s mother, plaintiff/appellant lori gregory (“ms. persons pinned in this vehicle. the 911 operator dispatched emergency vehicles and on july 25, 2011, ms. gregory filed a response to the motion to dismiss. she argued that the r. alex dickerson, assistant metropolitan attorneys, for the defendant/appellee factors supported an exception to the general duty of reasonable care under the facts of the government argued that its decision on whether to request emergency aid from another an employee, with certain enumerated exceptions. tenn. code ann. § 29-20-205 (2012); approval of and response to such requests.” see 2012 tenn. laws pub. ch. 906 (s.b. 68), 2012 session of monday-morning quarterbacking.”].) the dragoo case is designated as “nonpublished/noncitable” under california law. we are mindful of15 did not preclude metro government from seeking assistance from other municipalities in this entities may enter into agreements to provide mutual assistance in the event of an imposed. decedent, metro government’s 911 operator assumed the duty to act with reasonable care restatement (second) of torts § 324a (1965).10 render aid to [the decedent].” id. at 860. the scene, only that it took “several minutes” after they arrived for an ambulance to transport him to a argued that the niland fire district, by undertaking to assist the victim, created a special metro government’s motion for judgment on the pleadings, we consider only the facts alleged in the mutual aid act is not the exclusive vehicle through which local governments are permitted -10- reasons, the trial court should have denied the motion. downs ex rel. downs v. bush, 263 s.w.3d 812, 821 (tenn. 2008). in this case, the facts as stated in the after the collision. complaint itself. such motions do not test the strength of the plaintiff’s proof. imperial county, no. d057565, 2011 wl 3299930 (cal. 4 dist. ct. app. aug. 2, 2011).th opinion responders were closer to the scene of the accident and could have provided aid to the metro government had no duty to request emergency medical aid from either ridgetop or 911 operators to solicit aid from robertson county in this situation. in the alternative, metro inferences that can be reasonably drawn from the pleaded facts. resources to every call, in order to avoid potential liability. such a ruling, the court observed, at vanderbilt university hospital. on information and belief, mr. ballentine law, to be determined by reference to the body of statutes, rules, principles, and precedents -14- filed in this case, the general assembly adopted amendments to the mutual aid act to include specific occurring; (2) the possible magnitude of the potential harm or injury; (3) the for a breach of the assumed duty of reasonable care. see lynch v. loudon county, no. e2010-02231-coa- addressing this issue, and we have found none. therefore, it appears that this is an issue of -12- code ann. § 29-20-205(1).” thus, the trial court granted the motion for judgment on the under circumstances such as those presented in this case. dragoo v. niland fire dist. of15 discretionary function, for which the metropolitan government is immune pursuant to tenn. the emergency communications center of defendant/appellee metropolitan government consequences to the community of imposing a duty to exercise care with county, tennessee. she filed as the decedent’s representative, alleging claims pursuant to factual background under the auspices of the metropolitan fire department. duty of care, (3) injury or loss, (4) cause in fact, and (5) proximate or legal cause. mccall the public duty doctrine does not shield metro government from liability, because this case the verdict, concluding that the municipalities owed a duty to the decedent because they is for the jury to make.” id. (quoting cabral, 51 cal. 4 at 772 (emphasis in original)).th john e. herbison, clarksville, tennessee, for the plaintiff/appellant lori gregory, in her importance or social value of the activity engaged in by the defendant; (4) the the 107 gen. assembly. these provisions, of course, were not in effect during the pertinent time periodth similar previous incidents near the county line – some involving fatalities. the complaint aim of improving while maintaining a sufficient stability so as to seek, and one emergency responders] selected, someone could persuasively argue that required metro government to request aid from outside its jurisdiction nor precluded metro appropriate equipment, and they too were attacked and disabled by the swarm of bees. governmental entity is set out in tennessee’s mutual aid and emergency and disaster government argues that the trial court correctly concluded that it had no duty to summon aid pleaded facts in the complaint, and we give ms. gregory the benefit of all inferences that can the decedent’s chances of survival or at least increased his pain and suffering. ms. gregory greenbrier, which are located in robertson county. the refusal by metro government to4 1 no. m2011-02061-coa-r3-cv - filed october 26, 2012 relationship had existed between [the decedent] and the defendant, the defendant assumed governmental entities as to lawsuits for injuries caused by the negligent act or omission of might not reasonably lead to a declared emergency. response time.” assistance among governmental entities in any state of emergency or declared disaster while the legislation is to “enhance public safety” and to “facilitate assistance among governmental am. corp., 330 s.w.3d 166, 195 (tenn. ct. app. 2010). 1994); speaker v. cates co., 879 s.w.2d 811, 813 (tenn.1994); collins v. arnold, no. imposing a duty on a governmental entity to enlist all available resources in any given with these principles in mind, we consider whether the metro government’s duty to use governmental entities to respond to a request for aid or assistance nor to stay at the scene of established the doctrines and rules governing a defendant’s conduct. decedent, as host and social guest. beyond that holding, the court also stated: “[e]ven if no section 324a of the restatement has been cited and relied upon in cases addressing the liability of a person10 accurately predict, in advance of responding to the call, that a limited team (8) despite the ready availability of emergency equipment and personnel who ms. gregory argues, metro government had a duty of reasonable care to the decedent, and requesting aid from other governments in less serious situations, metro government third person upon the undertaking. -8- -11- particular case, but instead whether they “justif[ied] carving out an entire category of cases in response to ms. gregory’s argument, metro government claims, as it did in the trial court, motion to dismiss, and the plaintiff appealed. id. negligent response to the 911 call. delong, 89 a.d.2d at 377. the appellate court upheld davidson county, such as those from the city of ridgetop or city of greenbrier, when it residence. after the decedent jumped, the defendant told those gathered around to “wait a had an emergency vehicle and trained personnel at the ready about one and a id. at *2 (quoting cabral v. ralphs grocery co., 51 cal. 4 764, 771 (2011) (citationsth decedent sooner. the municipality filed a motion for judgment on the pleadings, arguing was involved in a serious vehicular accident. a witness called the defendant municipality’s from emergency personnel outside its jurisdiction. it claims that the mutual aid act does pursuant to tennessee code annotated § 29-20-205(1). in a footnote in its motion for issues on appeal and standard of review in reply to this argument, ms. gregory maintains that the language in the mutual aid act is other officials authorized by the potentially responding party to respond to through the appropriate emergency management employee or official, or a at § 58-8-107. considering the mutual aid act as a whole, we find that the act neither made under this new subsection, and also to specifically authorize counties to “permit routine and automatic decedent was trapped inside his overturned automobile, suspended upside the 911 operators answered the bystanders’ calls for assistance, she argued, they undertook by the mutual aid act. the mutual aid act addresses the manner in which governmental gillham v. city of mt. pleasant, no. m2010-02506-coa-r3-cv, 2012 wl 1079333, at *5 (n.y. app. div. 1982). in delong, the city and county were sued for negligence in less than every available resource is sufficiently likely to result in the 911 emergency communications center for help. the 911 responders went to the accident a motion for judgment on the pleadings may be filed “[a]fter the pleadings are closed but within such time5 ms. gregory also cites a tennessee case, lindsey v. miami development corp., 689 s.w.2d ann.§6-54-307 (police departmentservices);§6-54-601 (firedepartmentservices). therecentamendments assuming that metro government and robertson county had no written agreement to provide saul a. solomon, director of law, and andrew d. mcclanahan, james e. robinson, and ms. gregory does not allege in her complaint that the decedent received inadequate care from metro11 856 (tenn. 1985). in that case, the decedent jumped off a balcony at the defendant’s to request aid outside its jurisdiction in this case, metro government argues, any decision “occurrence.” an “occurrence” is defined as “the imminent threat of an event or an actual not authorize metro government to request such aid from other jurisdictions for this type of -4- government’s emergency personnel at the scene of the accident or that their arrival to the accident site was relative safety of alternative conduct. burroughs v. magee, 118 s.w.3d at summon help in response to the 911 calls, and the operator thereby assumed the duty to metro government is a consolidated city and county governmental unit organized pursuant to tennessee2 decision to request or not request emergency medical aid from another government is a scene and transported the decedent to a local hospital, where he died. the decedent’s mother reference to any such agreement between metro government and robertson county. as we are addressing requests under this chapter. springfield highway within less than two minutes. mutually beneficial, and it is based on the premise that aid between local governments should personnel at the ready a short distance away and capable of responding to the government’s conduct. side/ believes four people pinned inside, people are trying to get the people out of the in the court of appeals of tennessee considerations weighed in favor of immunizing first responders from liability for responding davidson county when it responded to the 911 calls related to the decedent’s accident. we recognize as necessary for the protection of a third person . . ., is subject to down by his seat belt. conduct that is safer; (6) the relative costs and burdens associated with that aid agreement with the calipatria fire district, the niland fire district did not initially seek claimed that the harm to her son caused by the delay was highly foreseeable, and she cited government. the elements of a negligence claim are (1) a duty of care, (2) breach of the predict that a limited team could achieve the best result, or a choice to commit all available case. she maintained that her complaint was not based on the mutual aid act, but rather it “occurrence,” the governmental entity may request aid outside its jurisdiction: relationship with the victim, thereby creating a duty to the victim. the trial court granted the injury or property damage and that could lead to the declaration of a state of emergency.”12 negligent manner. 1991) (rule 12.03). this court has recently explained: foreseeable risk of harm to persons or property.” mccall v. wilder, 913 exacerbation of the plight of the person in peril so that liability may in the complaint are true, and we must review the trial court’s legal established precedents are not readily applicable, courts will turn to public calls with fewer than all available resources. first, it would discourage motion for judgment on the pleadings. vehicles and personnel from locations more distant than ridgetop and greenbrier, resulting in a longer as not to delay the trial.” tenn. r. civ. p. 12.03. the california case of dragoo v. niland fire district of imperial county, cited by metro to 911 calls with fewer than all of the available resources: a wrongful death lawsuit against the defendant residence owner. the trial court granted to cooperate with one another regarding the provision of emergency services, and that the act responding party or multiple potential responding parties. requests for aid or -15- thus, in conducting our review of the trial court’s decision, we are confined to the well- 8-101, et seq., and contended that the mutual aid act did not authorize metro government’s id. § 58-8-105(a) (supp. 2012). the act states specifically that it does not create a duty on -3- support of his claim that would entitle him to relief. entities,” so interpreting the act to preclude a governmental entity from requesting aid from another is a question of law to be decided by the courts.” guesthouse int’l v. shoney’s n.9 june 28, 2012 session app. 2009). both a rule 12.03 motion for judgment on the pleadings and a rule 12.02(6) africanized bees, sometimes referred to as “killer bees,” are known to be unusually aggressive.16 finally, the niland fire district contacted the calipatria fire district, which responded to aid is “to authorize mutual aid and to enhance public safety and homeland security by facilitating another [alternative was better]. this scenario lends itself to typical may be liable for personal injury caused to the other by the failure to exercise reasonable was conscious and suffering during this waiting time. no. 11c805 barbara n. haynes, judge in general, the gtla provides that governmental entities, such as metro government, are accident. even if it did, metro government argues, public policy considerations militate correctness in the trial court’s decision. id. § 58-8-104 and request assistance by communicating the request to a potential at oral argument, metro government pointed out that, on may 10, 2011, after the appellate briefs were13 communications dispatch center in another county, regardless of whether there is a written complaint are taken as true. therefore, the issue of whether a duty exists on the facts as stated in the analysis emergency personnel from responding to 911 calls at all unless they could vehicles, worried the vehicles are going to catch on fire.” the decedent was one of the local governments. it gives authority to request aid only in the event of a flood, earthquake, consider this argument first. a motion filed pursuant to tenn. r. civ. p. 12.02(6) and a motion filed whether or not the discretion is abused.” id. at § 29-20-205(1). care. this precept is described in the restatement (second) of torts: in its answer, metro government denied liability. subsequently, metro government filed liability for responding to that call) also militate in favor of creating a duty liability to the third person for physical harm resulting from his failure to liability by (1) ignoring the call (because there is no duty to respond) or (2) paragraph (e), which specifically authorizes counties to request such aid “from the emergency care, and the issue was whether consideration of numerous applicable factors “justifies an satterfield v. breeding insulation co., 266 s.w.3d 347, 365 (tenn. 2008) (footnote lori gregory, in her capacity as personal tenn. code ann. § 58-8-102(9) (supp. 2012). the act provides that, in the event of an assistance of emergency responders from robertson county. on this basis, we affirm the county. at 5:10 p.m. and 5:11 p.m., unidentified bystanders placed emergency 911 calls to owed the plaintiff no duty of ordinary care, which is for the court to make, and a and all available public resources in a given situation would ultimately cripple the summoning help from robertson county in this case. she emphasizes that the complaint did under the facts as alleged in the complaint, a reasonable trier of fact could have found that governments may enter into agreements in advance of an emergency in a way that will be a guarantee, emergency responders could only be assured of immunity from (b) he has undertaken to perform a duty owed by the other to the this is a negligence claim under tennessee’s governmental tort liability act. the decedent 2340990, at *7-8 & n.5 (tenn. ct. app. july 30, 2009) (citing biscan v. brown, 160 s.w.3d 462, 483 (tenn. defendant’s conduct and the injury suffered, the mortal blame attached to the court must recognize that the metro government 911 operator had a common-law duty to authority to request and provide aid in less serious situations. section 58-8-105 was amended to add a reasonable trier of fact could find that the duty was breached by the failure to summon the closest first responders, even if outside the jurisdiction. fire district’s duty of care did not include the decision of whether to respond to the 911 call ms. gregory argued, was to exercise reasonable care and to avoid causing foreseeable injury we agree with the analysis of the public policy considerations discussed in dragoo. 329; mccall v. wilder, 913 s.w.2d at 153. belonged.” dragoo, 2001 wl 3299930, at *2. in addressing the issue, the dragoo court of the closest first responders was the “functional equivalent of directing others to ‘wait a representative of the estate of james ballentine relies on a negative inference from the language in the mutual aid act specifically ms. gregory did not allege in her complaint that metro government’s conduct was reckless.6 the dragoo court found that the relevant factors weighed in favor of holding that the niland autry, 304 s.w.3d at 362. one such exception is when “the injury arises out of . . . the government is a discretionary function, for which metro government is immune from suit the policy of preventing future harm, the extent of the burden to the have been more effective). (cf. williams, supra, 34 cal.3d at p. 30 (conc. and rule the decision to send fewer responders is not sufficiently likely to result in civil procedure, arguing that the complaint should be dismissed on its face. it asserted that5 the complaint does not indicate how long it took for the goodlettsville emergency personnel to arrive on3 -7- tornado, or other type of “occurrence.” because the act includes no provision for13 20-201, et seq. she alleged in the complaint that the nearest available first responders were in effect, that by authorizing a request for assistance in the event of an “occurrence,” the act gregory”), filed this lawsuit against metro government in the circuit court of davidson complaint liberally in favor of the plaintiff by taking all factual allegations in under general negligence principles, a person who undertakes to render services for another emergency communications dispatch center of potential responding parties or this appeal, we presume that the ridgetop first responders to whom the complaint refers were located event and its aftermath, whether natural or man-made, that could lead to substantial bodily because the question of metro government’s duty is not resolved by reference to the mutual which make up the law.’” dill v. gamble asphalt materials, 594 s.w.2d 719, 721 (tenn. summary judgment in favor of the defendant, holding that he owed no duty to render aid to collision in which his vehicle rolled over. the crash occurred at 5:09 p.m. on springfield consequences to the community. see id. (quoting williams v. state of california, 664 p.2d (10) the plaintiff’s decedent was extricated from his vehicle by emergency unreasonably delayed. she alleges only that metro government was negligent in “dispatch[ing] emergency another such entity would be antithetical to that purpose. id. at § 58-8-103(c). id. at 58-8-103(c) (supp. 2012). metro government notes that section 58-8-105 of the complaint. considerations presented in the instant case. reasonable care where a “defendant’s conduct poses an unreasonable and committing all available resources to responding to the call (to avoid the relying on both delong and lindsey, ms. gregory argues that, by undertaking to assist the undertook to assist her during the emergency. the court reasoned that while the exercise reasonable care to protect his undertaking, if in support of her argument that metro government had a duty to the decedent in this case, against imposing a duty on metro government to do so under these circumstances. allowing courts to second-guess a governmental entity’s decisions on whether to commit any establishment of the 911 emergency call system did not create the duty, “[i]t is the holding resources to every call. deciding to send every available responder may location of the crash on springfield highway within less than two minutes. contends, then it did not authorize metro government to request aid or assistance from when the existence of a particular duty is not a given or when the rules of the first impression in tennessee. when presented with an issue of first impression, we look to highway in goodlettsville, tennessee, located in the general services district of davidson summon aid from neighboring robertson county under the facts in this case. “in any action capacity as personal representative of the estate of james ballentine failing to summon emergency personnel from a neighboring county, because those worsening the plight of the victim so that liability may appropriately be omitted). the decedent. the supreme court of tennessee reversed, concluding that the defendant personnel from goodlettsville, which is in davidson county. when emergency personnel a reasonable person standard of care for the protection against unreasonable risks of harm.” attacked by a swarm of africanized bees. although the niland fire district had a mutual16 (a) when a governmental entity is affected by an occurrence that its resources aid to the requesting government and the extent of any such aid that may be provided. id. that the government from which aid is requested has sole discretion over whether to provide among other factors: (1) the foreseeable probability of the harm or injury defendant’s conduct, the extent of the burden to the defendant and stated: presented in this appeal. personnel of the city of goodlettsville. he had to wait on a stretcher, with life be determined from the four corners of the complaint whether discretionary-function holly m. kirby, judge government inexplicably dispatched emergency vehicles and personnel from usefulness of the conduct to the defendant; (5) the feasibility of alternative will not be adequate to handle, the governmental entity may request aid omitted)). the court clarified that the issue was a broad one; it did not consider whether the government had no duty to request emergency medical aid from personnel outside of -6- motion to dismiss for failure to state a claim test the legal sufficiency of the complaint itself. id.; compare webb v. nashville area habitat for humanity, inc., 346 s.w.3d 422, 426 (6) the nearest municipality which could have provided emergency assistance plaintiff’s decedent died at vanderbilt hospital approximately twelve hours reasonable care in assisting the decedent included the duty to summon aid from first inter alia that it owed no duty to summon aid outside of its jurisdiction. the trial court does not preclude a 911 operator in one county from summoning aid from the emergency asserted “a common law claim for negligence . . . .” metro government’s common-law duty, the face of the complaint. while before you call an ambulance,’” as in the case of lindsey. under these circumstances, filed this lawsuit against the municipality, alleging that the 911 operator was negligent in precludes a governmental entity from requesting aid in a less emergent situation. we decline of it lies in davidson county. neither party cited this fact, and ms. gregory did not argue that the first . . . the foreseeability of harm to the plaintiff, the degree of certainty that the v. hill servs. plumbing & hvac, no. w2009-00687-coa-r3-cv, 2010 wl 27877, at *7-8 & n.4 (tenn. exercise reasonable care in deciding which first responders to call for aid. in response, metro summon aid from the nearest responders under the facts in this case. a motion for judgment on the pleadings pursuant to rule 12.03 of the tennessee rules of conclusions regarding the adequacy of the complaint de novo, with no owed a duty to the decedent because the defendant stood in a special relationship with the control of the situation which placed him under the obligation to exercise reasonable care to caused by the 911 operator’s error, the decedent was stabbed to death by the intruder. the determination that the defendant did not breach the duty of ordinary care, which in a jury trial both the initial victim and the injured niland emergency personnel. the victim later died could have responded sooner, personnel of the defendant metropolitan mccall, 913 s.w.2d at 153. “determining the existence and extent of one person’s duty to responded to the may 30, 2010 accident.” in addition, the trial court concluded that “the the duty to exercise reasonable care in responding to those calls. ms. gregory claimed that, -2- defendant, and consequences to the community if rescuers must devote all situation would result in either a choice not to respond to 911 calls at all, unless they could the appellate court in dragoo addressed the issue of whether a local government has the care.” id. at 384 (citations omitted). code annotated § 7-1-101 et seq. metro government provides ambulance and emergency vehicle services no duty to even respond to the 911 call, and therefore it had no duty to render aid to the nearest first responders was negligent and/or reckless. furthermore, she argued, it cannot6 communications dispatch center” of a contiguous county for an occurrence that does not involve life- unless it appears beyond doubt that the plaintiff can prove no set of facts in public at large. safer conduct; (7) the relative usefulness of the safer conduct; and (8) the r3-cv, 2011 wl 4952778, at *6 (tenn. ct. app. oct. 14, 2011), perm. app. denied (feb. 15, 2012); dyer a transcript of that hearing is not included in the appellate record.7 services provided under title 68, chapter 140, from the emergency communications (a) his failure to exercise reasonable care increases the risk of (c) the harm is suffered because of reliance of the other or the a complaint should not be dismissed pursuant to rule 12.02(6) or rule 12.03 and does grow to accommodate new societal realities and values—or simply (7) the city of greenbrier similarly had an emergency vehicle and trained trial court’s grant of judgment on the pleadings is de novo, with no presumption of in responding to the calls. she claims that the operator’s failure to summon the assistance -9- aid act, we go on to consider whether metro government had a common-law duty to tenn. code ann. §29-20-201 (2012); autry v. hooker, 304 s.w.3d 356, 362 (tenn. ct. app. -5- available resources to respond to a 911 call (to insure they will not face another local government under the circumstances in this case. even if it were authorized resulting liability for the breach, and the availability, cost, and prevalence of the victim’s representative filed a lawsuit against the niland fire district, asserting with every available resource: at nashville on the pleadings. on august 18, 2011, the trial court entered an order granting the motion7 threatening injuries, for several minutes for ambulance personnel of the half miles away and capable of responding to the location of the crash on (tenn. 2011) (rule 12.02(6)), with mclenahan v. cooley, 806 s.w.2d 767, 769 (tenn. ms. gregory sought compensatory damages pursuant to the gtla based on metro “properly defined, duty is the legal obligation owed by defendant to plaintiff to conform to granted the motion, and the plaintiff now appeals. we affirm. the moving party admits the truth of all the relevant and material factual the assistance of the calipatria fire district in response to the emergency. instead, several (e) . . . [a] governmental entity is authorized to request mutual aid for emergency medical 633 (tenn. ct. app. 2006). the focus of our analysis is on the “duty of care” element. could respond and achieve the best possible result for the victim. absent such conforming to federal guidelines relative to reimbursement costs for assistance rendered.” exercise or performance or the failure to exercise or perform a discretionary function, one who undertakes . . . to render services to another which he should motion, this court must, like the trial court, presume that the factual allegations 137, 144 (cal. 1983) (mosk, j., concurring and dissenting)). to others. “even in the absence of a pre-existing duty, one who gratuitously undertakes to provide some incrementally better response in some cases, but as a general not located in davidson county, but rather were located in the cities of ridgetop and “outside of davidson county,” as found by the trial court. for failure to state a claim upon which relief can be granted” pursuant to rule 12.02(6) of the the need for a rapid response was necessary, and that the 911 operator’s failure to call the duty to use all available resources in responding to a 911 call. id. at *3. the california court policy for guidance. doing so necessarily favors imposing a duty of governments retain the discretion over whether and to what extent to give the aid requested. authorizing a governmental entity to request aid in the event of an “occurrence.” it argues, (tenn. ct. app. mar. 29, 2012) (citations omitted). grounded in negligence, the existence or nonexistence of a duty . . . ‘is entirely a question of see id. § 58-8-107(a) (supp. 2012) (“this chapter does not create a duty on participating not allege the breach of any statutory duty; rather, it asserted “a common law claim for hopes, to find, prudent reformation as opposed to anarchic revolution. s.w.2d at 153. when conducting this analysis, the courts have considered, out of the 911 number as one to be called by someone in need of assistance . . . . this conclusion threatening injuries: occurrence that actually results in a declaration of a state of emergency. id. at § 58-8-102(5). to the endangered occupants of these vehicles was the city of ridgetop, which by the same token, the act does not require metro government to request aid from a for assistance must be made by the appropriate official or employee to the the scene to the 911 dispatcher: “rollover, smoke coming from vehicle, one vehicle on its negligence. the niland fire district sought dismissal of the complaint, alleging that it owed v. wilder, 913 s.w.2d 150, 153 (tenn. 1995); rathnow v. knox county, 209 s.w.3d 629, the trial court did not rely on the public duty doctrine in reaching its conclusion.8 -13- it from liability to the extent that the duty on which the plaintiff relied was a duty to the nashville and davidson county this holding pretermits all other issues raised on appeal, including the issues involving on may 30, 2010, 18-year-old james ballentine (“decedent”) was involved in a terrible steven stafford, j., joined. entity for occurrences that involve serious injuries or possible loss of life in instances that ct. app. jan. 7, 2010); barron v. emerson russell maint. co., no. w2008-01409-coa-r3-cv, 2009 wl allegations in the complaint for purposes of such a motion, but asserts that no cases from other jurisdictions for guidance. state v. munn, 56 s.w.3d 486, 495 (tenn. from that general duty rule . . . .” id. (quoting cabral, 51 cal. 4 at 772). this distinctionth ms. gregory cites a case out of new york, delong v. county of erie, 89 a.d.2d 376, 377 tennessee statutes authorize local governments to enter into mutual aid agreements. see, e.g., tenn. code14 governmental entity’s ability to effectively marshal limited resources and personnel. under voluntary assumption of a duty to act carried with it the obligation to act with reasonable -16- mutual aid agreement between the two local governments. metro government’s argument plaintiff suffered injury, the closeness of the connection between the because of the delay in medical care after the accident, and the decedent’s representative filed summon help from these closer cities, she asserted, caused unnecessary delay that reduced ct. app. 1979) (citing w. prosser, law of torts, § 37 (4 ed. 1971)). the tennesseeth (9) while awaiting the arrival of emergency medical personnel, the plaintiff’s niland fire district personnel responded to the call. they did not, however, bring tenn. r. app. p. 3 appeal as of right; judgment of the circuit court is affirmed county and within sight of the boundary line between davidson county and robertson in most cases today, prior court decisions and statutes have already government took the position that its authority to request assistance from another (continued...) id. at *3 (emphasis in original). the appellate court also held that other public policy assistance agreement act of 2004 (“the mutual aid act”), tennessee code annotated § 58- pursuant to tenn. r. civ. p. 12.03 both test the legal sufficiency of the regarding whether to do so would be discretionary, not mandatory. defendant metropolitan government to transport him to the emergency room appropriately be imposed if emergency responders do not commit all available an appeal from the circuit court for davidson county third person, or participating governments to respond to any requests for aid, and that the responding act to assist another thereby assumes a duty to exercise reasonable care in so doing.” once neighboring county in any given situation. rather, the legislation outlines how local the decision of the trial court is affirmed. costs on appeal are to be taxed to appellant lori dis. opn. of mosk, j.) [“no matter which of the several alternatives [the that its duty to work with other local governments in rendering emergency aid is governed exemption from the general duty of care for the class of actors to which the defendant generally, the presence or absence of a duty is a given rather than a matter of tested by a tenn. r. civ. p. 12.02(6) or 12.03 motion must construe the county, 126 s.w.3d 43, 46 (tenn. ct. app. 2003). the gtla removes the immunity for on appeal from an order granting a rule 12.02(6) motion or a rule 12.03 county or municipality may declare a local state of emergency as provided in on appeal, ms. gregory argues that the trial court erred in granting metro government’s the instant lawsuit is based on a claim of common-law negligence against metro (11) despite best efforts of emergency room personnel to treat his injuries, the reasoned debate, discussion, or contention. the common law, however, must the factual summary is taken from the allegations in the complaint, because this lawsuit was dismissed on1 of nashville and davidson county (“metro government”). the 5:11 p.m. caller described2 supreme court has outlined the process for determining whether a common law duty exists: the complaint as true, and by giving the plaintiff the benefit of all the immune from suit unless tennessee’s legislature has, by statute, removed that immunity. see “exception” which immunizes rescuers from liability when they respond to 911 reasonably be drawn from those facts. timmins, 310 s.w.3d at 838-39. our review of the discretionary-function immunity and the public duty doctrine. holly m. kirby, delivered the opinion of the court, in which david r. farmer, j., and j. ms. gregory first notes the well-settled principle that all persons have a broad duty to (...continued)13 not determinative of metro government’s duty in this situation. she claims that, even pleadings and dismissed the case. from this order, ms. gregory now appeals.8 to draw such a negative inference from the language in the mutual aid act. the purpose of negligence.” therefore, she argues, regardless of the language in the mutual aid act, this trial court’s decision to grant metro government’s motion for judgment on the pleadings. decedent’s representative filed a wrongful death lawsuit, and the case was tried before a jury. responders in ridgetop were actually located within the metro government’s jurisdiction. for purposes of this designation, but consider as persuasive the dragoo court’s discussion of the somewhat unique policy recognized that, under california jurisprudence, every person has a duty to exercise ordinary falls within the special-duty exception to the doctrine. ms. gregory argued that, for these responding to an emergency 911 call about an intruder at a home. after receiving the call, responders in davidson county. the parties have cited no tennessee case directly11 in this appeal. we express no opinion on whether in what ways this amendment would change our analysis actually, although the great majority of the city of ridgetop is located in robertson county, a small portion4 we do not believe that, whenever a 911 call is received, the decision to employ complaint is a question of law. 2001). cause of action arises from those facts. a court reviewing a complaint being (continued...) gregory and her surety, for which execution may issue, if necessary. government from doing so. thus, the mutual aid act is not dispositive of the issues each other mutual aid, this did not preclude the metro government 911 operator from14 government, discusses the public policy concerns at issue in analyzing the question of duty would invite “monday-morning quarterbacking” that would ultimately create negative dispatch center of a county that is contiguous to the requesting county or governmental retrospective arguments that some other response with more personnel would the facts in this case, we hold that metro government did not have a duty to request the metropolitan government of ms. gregory’s primary argument is that the trial court erred in determining that metro tennessee’s governmental tort liability act (“gtla”), tennessee code annotated § 29- id. at *5 (emphasis in original; footnote omitted). thus, the appellate court held that _________________________________


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