Opinion
No. 03A01-9504-CV-00128.
August 31, 1995.
Appeal from Hamblen County, Hon. William Jenkins, Judge
JIM W. STAMBAUGH OF MORRISTOWN FOR APPELLANT
PAMELA L. REEVES OF KNOXVILLE FOR APPELLEES
AFFIRMED AND REMANDED
OPINION
The Plaintiff, James O. Helton, d/b/a Helton Helton Construction Company, a general contractor, filed suit against the City of Morristown, its mayor and aldermen, contending that the City improperly subjected him to certain unnecessary building codes, requiring him to expend additional monies for which he seeks recompense.
At the conclusion of the Plaintiff's proof, the City was granted a directed verdict on the ground that it was entitled to immunity under the Tennessee Governmental Tort Liability Act. The Plaintiff appealed, and submits the following issues for appeal:
ISSUE NUMBER ONE: THE FIRST ISSUE PRESENTED IN THIS CASE IS WHETHER OR NOT THE ACTS OF THE CITY ENGINEER IN REQUIRING A RETENTION POND; THE CITY PLUMBING INSPECTOR IN REQUIRING A 6" SEWER; THE CITY ELECTRICAL INSPECTOR IN REQUIRING CONDUIT AND THE CITY BUILDING INSPECTORS IN REQUIRING A HIGH RATED WALL, WERE DISCRETIONARY ACTS OR WERE THEY MINISTERIAL ACTS?
ISSUE NUMBER TWO: WHEN THE CITY HAS ADOPTED THE STANDARD PLUMBING AND BUILDING CODES AND THE NATIONAL ELECTRIC CODE, DOES ITS FAILURE TO CREATE A CONSTRUCTION BOARD OF ADJUSTMENT AND APPEALS DO AWAY WITH THE NECESSITY FOR FURTHER ADMINISTRATIVE REVIEW; ESPECIALLY IN LIGHT OF THE FACT THAT THESE CODES MANDATE THE CREATION OF THE CONSTRUCTION BOARD OF ADJUSTMENT AND APPEALS?
The Plaintiff began construction on a medical office complex in Morristown in May 1991. The contract for the building included a flat cost, and in addition a cost-plus provision for site improvement. The Plaintiff claimed that acts by the City required him to expend an additional $25,250, which he had not accounted for in his construction bid. Specifically, the Plaintiff alleges that the City required him to:
1) Install a 6" sewer line instead of the 4" line that he had anticipated, at the direction of Floyd Graham, the City Plumbing Inspector, for an additional cost of $250;
2) Use conduit wiring instead of the less expensive romex wiring, at an additional cost of $8,000;
3) Build a retention pond even though there was no written requirement for such a pond, at an additional expense of $7,100; and
4) Use rated walls despite a conflict between City regulations and the Southern Building Code and the Life Safety Code at an additional expense of approximately $10,000.
The Plaintiff was contractually bound to complete the structure at a set price, which did not take into account the above enumerated requirements. Therefore, according to the Plaintiff by his amended complaint, the City was responsible for the additional expenses he incurred due to the City's allowing its employees to "set arbitrary, capricious and unreasonable standards without proper foundation and without proper ordinances."
The Plaintiff originally used the word "negligence." However, he amended his complaint to substitute the word "responsible."
The City responded by claiming that it was immune under the Tennessee Governmental Tort Liability Act, T.C.A. 29-20-101 et. seq., and that it acted properly and pursuant to proper authority in promulgating its regulations.
A governmental unit in Tennessee is immune from liability for injury proximately caused by a negligent act or omission of one of its employees if the injury results from, among other things, "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." T.C.A. 29-20-205(3). For the reasons set forth below, we find that the Trial Court was correct in its conclusion that the City's actions were immune under the Act.
The Plaintiff's first issue involves whether the acts of the City officials in mandating stricter standards constitutes a discretionary act. Although the language of T.C.A. 29-20-205(3) clearly provides immunity for a governmental entity in the issuance or failure to issue construction permits, the Plaintiff contends that Section 29-20-205(1) is controlling. That Section removes liability for negligent acts or omissions that are ministerial in nature. The Plaintiff relies on the case of Hodges v. Reid, 836 S.W.2d 120 (Tenn. 1992), which quotes Gordon v. City of Henderson, 766 S.W.2d 784 (Tenn. 1989), in pertinent part:
Where the duty is absolute, certain and imperative, and is simply ministerial, the officer is liable in damages to any one specially injured, either by his omitting to perform the task or by performing it negligently or unskillfully. On the other hand, where his powers are discretionary, and to be exerted or withheld according to his own judgment, he is not liable to any private person for a neglect to exercise those powers, nor for the consequences of a willful exercise of them, where no corruption or malice can be imputed to him, and he keeps within the scope of his authority.
Hodges at 124.
Although there may be an argument that the promulgating of regulations is discretionary, while the enforcement ministerial, we think the issue as it applies to this case is moot. The Trial Court relied on the specific language of T.C.A. 29-20-205(3), as opposed to the more general language of T.C.A. 29-20-205(1). The law is clear in Tennessee that a specific provision of a Statute controls a general provision. See Watts v. Putnam County, 525 S.W.2d 488 (Tenn. 1975); Gillis v. Clark Equipment Co., 579 S.W.2d 869 (Tenn.App. 1978); Cole v. State, 539 S.W.2d 46 (Tenn.Crim.App. 1976). The reasoning for this law is clear as evidenced by the facts of this case. Obviously, a governmental official who is responsible for issuing permits must carry out that responsibility absolutely, which, under Hodges, would suggest that such an action is ministerial in nature. But in order to protect the integrity of a governmental unit's duty to regulate construction within its border, the Legislature has decided that that duty must be free from liability. Indeed, this Court has held that the purpose of the Governmental Tort Liability Act is to remove the threat of liability that would make government officials unduly timid in carrying out their official duties. See Doe v. Board of Education, 799 S.W.2d 246 (Tenn.App. 1990). To hold that the general language of Section 29-20-205(1) is controlling in this case would completely strip Section 29-20-205(3) of its meaning, and we decline to do so. We conclude, accordingly, that T.C.A. 29-20-205(1) is not controlling, and the City is immune from liability under T.C.A. 29-20-205(3).
In light of our disposition of issue one, which is the sole ground upon which Mr. Helton's suit was dismissed, it is unnecessary to resolve issue two, which addresses the Defendants' alternate defense that Mr. Helton did not pursue his administrative remedies.
This defense was advanced in the Defendants' motion for summary judgment — which was overruled — but not in their answer.
For the reasons stated above, the judgment of the Trial Court is affirmed and the cause remanded for collection of costs below. Costs of appeal are adjudged against the Plaintiff and his sureties.
_______________________________ Houston M. Goddard, P.J.
CONCUR:
________________________________ Herschel P. Franks, J.
________________________________ Clifford E. Sanders, Sr.J.