Opinion
No. 02A01-9310-BC-00217.
Opinion filed: October 27, 1994.
Appeal from the Tennessee claims commission the Honorable Martha B. Brasfield, Commissioner, #102-998.
AFFIRMED.
John D. Horne of Memphis, for Appellants.
Charles W. Burson, Attorney General and Reporter, Michael E. Moore, Solicitor General, Meredith Devault, Senior Counsel, For Appellee
Concur: HEWITT P. TOMLIN, JR., Presiding Judge, W.S. ALAN E. HIGHERS, Judge.
Claimant, Emily E. Combs, individually and as parent and next friend of Joseph Ronald Combs, a minor, appeals from the decision of the Tennessee Claims Commission dismissing his claim for personal injuries against the State of Tennessee for want of subject matter jurisdiction.
On October 20, 1990, claimant, a healthy, active eight year old boy, sustained personal injuries in a hayride accident at Meeman-Shelby Forest State Park in Shelby County, Tennessee. Claimant and his mother participated in the hayride along with the other members of Cub Scout Pack #260. Although the ride was to take place on park property, the equipment used was owned and operated by Cliff Hannah, a state licensee. Mr. Hannah, doing business as Shelby Forest Stables, was licensed by the State to operate an "equestrian facility" within the park and although not specifically provided for in the license agreement, Hannah and his predecessors had conducted hayrides from the stable area for a number of years.
On the evening of October 20, 1990, after the Cub Scouts and their families had arrived, Mr. Hannah and his employee loaded approximately 90 people on two farm trailers covered with hay. The employee then drove the tractor which pulled the trailers and their passenger away from the stable area. As the tractor proceeded down a steep hill on a public road in the park, the trailers jackknifed and Joseph was seriously injured.
As a condition to obtaining a license to operate the stables, the State required Mr. Hannah to maintain a policy of general public liability insurance with minimum limits of $300,000 per person. Mr. Hannah testified that the State suggested two possible insurance companies, with Bel-Aire Insurance Company in Missouri being one of the two. He obtained the requisite insurance coverage from Bel-Aire. On October 3, 1990, receivership proceedings were commenced against Bel-Aire, and it was determined that they were not legally licensed to sell insurance in the State of Tennessee. Appellants also have a suit pending in circuit court against Hannah, et al.
Appellants' claim was duly filed with the Tennessee Claims Commission and subsequently dismissed for lack of subject matter jurisdiction. The case is properly before this Court on direct appeal from the Commission and is governed by the Tennessee Rules of Appellate Procedure. T.C.A. § 9-8-403 (a)(1) (1992). The material facts are undisputed, and the only issue for review is whether the Commission erred in dismissing the claim for lack of subject matter jurisdiction.
Suit may be brought against the State only "in such manner and in such courts as the Legislature may by law direct." Tennessee Const. art. I, § 17. Greenhill v. Carpenter , 718 S.W.2d 268, 270 (Tenn.App. 1986). The State of Tennessee, as a sovereign, is immune from suit, except as it consents to be sued. Brewington v. Brewington , 387 S.W.2d 777, 779 (Tenn. 1965). Statutes permitting suits against the State are in derogation of the State's inherent exemption from suit and are to be strictly construed. Sweeney v. State Dept. of Transp. , 744 S.W.2d 905, 906 (Tenn.App. 1987). Jurisdiction granted under these statutes cannot be enlarged by implication. Id. at 906.
T.C.A. § 9-8-307 (Supp. 1994) establishes the jurisdiction of the Tennessee Claims Commission. Appellants assert that the Commission has jurisdiction over their claims by virtue of T.C.A. § 9-8-307 (a)(1)(B) and (C), which provide:
9-8-307. Jurisdiction — Claims — Waiver of actions — Standard for tort liability — Damages — Immunities — Definitions — Transfer of claims. — (a)(1) The commission or each commissioner sitting individually has exclusive jurisdiction to determine all monetary claims against the state falling within one (1) or more of the following categories:
* * *
(B) Nuisances created or maintained;
(C) Negligently created or maintained dangerous conditions on state controlled real property. The claimant under this subsection must establish the foreseeability of the risks and notice given to the proper state officials at a time sufficiently prior to the injury for the state to have taken appropriate measures;
Cliff Hannah operated Shelby Forest Stables at the park pursuant to a written license agreement, which commenced in April, 1990. According to the terms of the agreement, Mr. Hannah was authorized to operate an equestrian facility on described property located at the park. The premises, facilities, and other property are described in the agreement as:
The horse stables is a pole shed, located at Meeman-Shelby State Park, Millington, Tennessee. Said facilities are located 1/4 mile off Grassy Lake Road. The license also includes the non-exclusive use of the Park horseback riding trails.
Although the agreement does not specifically authorize the conducting of hayrides or motorized activity and did not specifically authorize the use of a park roadway, Mr. Hannah and his predecessors had for many years conducted hayrides for hire from the stable property and had utilized the roadways in the park for this purpose.
The State contends, as it did in the trial court, that the facts are undisputed that appellants' losses, injuries and damages resulted from the acts of a state licensee, and the claim is therefore excluded from the jurisdiction of the Tennessee Claims Commission by virtue of T.C.A. § 9-8-307 (a)(2), which provides in pertinent part:
(2) No item enumerated in this subsection shall be interpreted to allow any claim against the state on account of the acts or omissions of persons, partnerships, corporations or other entities licensed or regulated by agencies of the state, notwithstanding any negligence committed by the state in the course of performing licensing or regulatory activities. No item enumerated in this subsection (a) shall be interpreted to allow any claims against the state arising out of or resulting from:
(A) 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;
(B) An inspection, or by reason of making an inadequate or negligent inspection of any property, except as provided for in subdivision (a)(1)(I); or . . .
The jurisdiction of the claims commission to entertain claims against the State must be determined from the language of T.C.A. § 9-8-307 in its entirety. The premier rule of statutory construction is to ascertain and give effect to the legislative intent, and, in ascertaining this intent, we look to the general purpose to be accomplished by the legislation. Tidwell v. Collins , 522 S.W.2d 674, 676 (Tenn. 1975).
The legislative intent or purpose is to be ascertained primarily from the natural and ordinary meaning of the language when read in the context of the entire statute and without any forced or subtle construction to limit or extend the import of the language. Sanders v. State , 783 S.W.2d 948, 951 (Tenn.App. 1989). It is the duty of the Court to reconcile inconsistent or repugnant provisions of a statute and construe a statute so that no part will be inoperative, superfluous, void, or insignificant. The Court must give effect to every word, phrase, clause, and sentence of the act in order to achieve the legislature's intent, and it must construe a statute so that no section will destroy another. Id.
Although the statute grants jurisdiction to the claims commission to determine monetary claims against the State resulting from nuisances and negligently created or maintained dangerous conditions on State controlled real property, the act explicitly declares that this grant of jurisdiction shall not be interpreted to allow "any claim against the state on account of the acts or omissions of persons, partnerships, corporations, or other entities licensed or regulated by agencies of the state, notwithstanding any negligence committed by the state in the course of performing licensing of regulatory activities." T.C.A. § 9-8-307 (a)(2). It is without dispute that the acts of the licensee and his employee directly and proximately caused any losses, injuries, and damages sustained by the appellants. The equipment was owned by the licensee, the driving of the equipment was by the licensee's employee, and if there was dangerous or defective equipment it was so maintained by the licensee. The legislature made it quite clear from the language of § 9-8-307 (a)(2) that the State did not waive its immunity because of acts of licensees, even if the State were negligent in licensing, regulating or inspecting.
Even without the explicit exception language of the statute, we have difficulty under the facts of this case finding jurisdiction as asserted by appellants. The term "nuisance" is quite broad and extends to everything that endangers life or health, gives offense to the senses, violates the laws of decency, or obstructs the reasonable and comfortable use of property. Oakley v. Simmons , 799 S.W.2d 669, 671 (Tenn.App. 1990). However, the term only applies to the class of wrongs that arise from the unreasonable use by a person of his own property. See Hagaman v. Slaughter , 49 Tenn. App. 388, 354 S.W.2d 818, 821 (1961). Furthermore, in order to constitute a nuisance, there must be someaffirmative act upon the part of those charged. Rector v. City of Nashville , 134 S.W.2d 892, 896 (Tenn.App. 1939); Burnett v. Rudd , 165 Tenn. 238, 54 S.W.2d 718, 720 (1932).
In the case at bar, the unfortunate accident was not the result of any affirmative act upon the part of the State. Arguably, it either was due to the negligence of the licensee or to some defect in the equipment that he used. At no point do appellants allege any affirmative misconduct by a State actor.
From the undisputed facts, there was no negligently created or maintained dangerous condition on State controlled real property. In past cases, this section of the statute has only been applied to conditions which are either affixed to or are part of the property itself. See generally Goodermote v. State , 856 S.W.2d 715 (Tenn.App. 1993); Sanders v. State , 783 S.W.2d 948 (Tenn.App. 1989); Sweeney v. State , 768 S.W.2d 253 (Tenn. 1989). In effect, this section codifies the common law obligation of the owner or occupier of land who has an obligation to exercise ordinary care and diligence in maintaining his premises in a safe condition for visitors. Sanders , 783 S.W.2d at 951.
From the plain language of T.C.A. § 9-8-307(a)(2), the State cannot be liable for the negligent acts of its licensee, nor can it be liable for negligently failing to inspect the licensee's property.
Appellant also argues that the State bears some responsibility since it allowed an activity (the hayride) that was outside the scope of the written license. However, we disagree. Both parties concede that the State was aware of the hayride activities and there is evidence that they consented to such activities. We believe that the scope of the license was implicitly broader than it would appear from the written licensing agreement.
Appellants' final contention is that the State waived its sovereign immunity by "requiring" the licensee to carry insurance and suggesting that he obtain the insurance from Bel-Aire Insurance Company. Appellants cite no authority for this argument and we have found none. Mayor and Aldermen of Town of Morristown v. Inman , 342 S.W.2d 71, (Tenn.App. 1960), cited by appellants in their brief concerns a municipality having insurance coverage on its own police vehicles. In the case at bar, the State did not carry insurance for the licensees; it merely required the licensees to obtain insurance.
Appellants further assert that the state knew or should have known that Bel-Aire was an inappropriate source of insurance and should neither have recommended Bel-Aire nor granted the license to Mr. Hannah without appropriate insurance. In order to bring suit against the State, it is necessary to satisfy one of the enumerated jurisdictional bases in the statute. Appellants' insurance arguments do not fall within one of these bases and moreover would be barred by the exception provided in T.C.A. § 9-8-307 (a) (2).
Although we have the utmost sympathy for the claimants, the statute dictates the jurisdictional requirements necessary in order to bring suit against the State. As claimants do not satisfy these requirements, the judgment of the Commission is affirmed, and costs of the appeal are assessed against the appellants.