quick facts

A Liability Gap

Tennessee waives sovereign immunity in several instances of negligence along with libel and slander. 1 These claims against the State must be brought before the Tennessee Claims Commission and are subject to strict limitations, such as a damages cap and the requirement that plaintiffs waive other causes of action based on the same act or omission, including federal causes of action under Section 1983. 2 This waiver requirement leaves plaintiffs in a difficult spot when they have a negligence claim against the State that could also be a constitutional claim under Section 1983.

State officers and employees are immune from liability for “acts or omissions within the scope of the officer’s or employee’s office or employment, except for willful, malicious, or criminal acts or omissions or for acts or omissions done for personal gain.” 3 This leaves a gap for intentional torts that do not rise to the level of “willful, malicious, or criminal acts” for which plaintiffs cannot recover against the State or its employees. Unfortunately, plaintiffs will fare no better with constitutional claims, as Tennessee has specifically rejected state constitutional causes of action for damages. 4
Like the State, all other government entities in Tennessee maintain immunity with exceptions for most negligence cases. 5 The Tennessee Governmental Tort Liability Act retains immunity for injuries proximately caused by certain intentional torts, such as false arrest, libel, slander, and malicious prosecution. 6 Injuries arising out of “civil rights” violations are also excluded from the waiver of immunity. 7 However, the Supreme Court of Tennessee has held that governmental entities can be held liable for negligent acts or omissions that lead to “reasonably foreseeable” intentional torts that are not enumerated in the Act, such as assault and battery. 8

Local government employees can be held liable only if their conduct was “willful, malicious, criminal, or performed for personal financial gain, or unless the act or omission was one of health care liability committed by a health care practitioner and the claim is brought against such health care practitioner.” 9 Again, this leaves a liability gap for public employees’ intentional torts that do not rise to the level of “willful, malicious, criminal, or performed for personal financial gain.” 10