Bishop v. Hamya, Inc. et al

Filing 92

OPINION AND ORDER: For the reasons set forth above, defendant Metro's motion for partial judgment on the pleadings (Doc. 75 ) is GRANTED and plaintiff's claims under Tenn. Code Ann. Sec. 29-20-203 and 204 are DISMISSED. Plaintiff's cl aims arising out of the negligence of the tow truck driver pursuant to Tenn. Code Ann. Sec. 29-20-202 and 205 remain viable. Signed by Senior Judge George Caram Steeh, III on 8/17/17. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(gb)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

MARTIN BISHOP,

CASE NO. 3:16-CV-1123
HON. GEORGE CARAM STEEH

Plaintiff,
v.
HAMYA, INC. ET AL.,
Defendants.
________________________/

OPINION AND ORDER

This negligence action based on diversity jurisdiction arises out of a

tragic accident: plaintiff Martin Bishop was assaulted outside a convenience
store and left unconscious and prone in the middle of the street, when a
tow truck, driven by an employee of defendant Metropolitan Government of
Nashville and Davidson County (“Metro”), ran over him causing
catastrophic injuries. Plaintiff alleges that Metro is liable for failing to
maintain adequate lighting on the street and is vicariously liable for the
negligence of its tow truck driver. Now before the court is Metro’s motion
for partial judgment on the pleadings as to the inadequate lighting theory of
liability only. Previously, this court dismissed the same claim brought



The Honorable George Caram Steeh, United States District Judge for the Eastern
District of Michigan, sitting by designation.
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against the public utility. For the same reasons that the public utility
company was previously dismissed, Metro is likewise entitled to partial
judgment on the pleadings.
I. Procedural Background
The facts of this case are well known to the parties and were set forth
in detail in the prior order of the court dismissing the public utility.
Accordingly, here the court summarizes only the procedural background
pertinent to the limited motion now before the court.
In the Amended Complaint, plaintiff alleges the same claims against
Metro and the public utility, alleging that one of the two owned, controlled,
and maintained the street lighting in question. Previously, the public utility
filed a motion to dismiss claiming, among other defenses, that it owed no
duty of care to maintain streetlights to the plaintiff. In its thoughtful and
thorough opinion, the court observed that Tennessee courts have not
definitively determined whether a municipality or its public utility owes a
duty to the public to install, maintain, and repair street lights on a roadway,
and then proceeded to canvas precedent from various jurisdictions in order
to make an Erie guess as to how the Tennessee Supreme Court would
resolve the issue. The court found that the majority view was that a public
utility or municipality owes no duty to the public for missing or inoperable
street lights, and upon an examination of public policy reasons supporting
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such a viewpoint, the court adopted the majority view and held that the
public utility owed no duty to the public and could not be liable for
negligence.
In the motion now before the court, Metro argues that applying the
same reasoning which justified the dismissal of the public utility, it is
entitled to dismissal on the negligence claim as it relates to the allegedly
inadequate lighting. Metro does not seek dismissal for the alleged
negligence of its tow truck driver. In response, plaintiff relies on his brief in
opposition to the public utility’s motion to dismiss, apparently conceding
that his negligence claims based upon a theory of inadequate lighting
against the public utility and Metro should be analyzed in the same manner.
II. Standard of Law
The same standard applies to Rule 12(c) motions as motions to
dismiss under Rule 12(b)(6). Ross, Brovins & Oehmke, P.C. v. Lexis Nexis
Group, 463 F.3d 478, 487 (6th Cir. 2006). Rule 12(b)(6) allows the Court to
make an assessment as to whether the plaintiff has stated a claim upon
which relief may be granted. Under the Supreme Court’s articulation of the
Rule 12(b)(6) standard in Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
554-56 (2007), the court must construe the complaint in favor of the
plaintiff, accept the allegations of the complaint as true, and determine
whether plaintiff’s factual allegations present plausible claims. “‘[N]aked
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assertions’ devoid of ‘further factual enhancement’” are insufficient to
“‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557, 570). To survive
a Rule 12(b)(6) motion to dismiss, plaintiff’s pleading for relief must provide
“‘more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.’” D’Ambrosio v. Marino, 747 F.3d
378, 383 (6th Cir. 2014) (quoting Twombly, 550 U.S. at 555). Even though
the complaint need not contain “detailed” factual allegations, its “‘factual
allegations must be enough to raise a right to relief above the speculative
level on the assumption that all of the allegations in the complaint are true.’”
New Albany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046, 1051
(6th Cir. 2011) (quoting Twombly, 550 U.S. at 555). 
III. Analysis
In the Amended Complaint, plaintiff alleges that Metro’s governmental
immunity is removed pursuant to Tenn. Code Ann. §§ 29-20-202, 203, 204
and 205. In the motion now before the court, Metro argues that plaintiff’s
Section 29-20-202 and -204 claims should be dismissed. The court first
addresses the Section 202 claim. Section 202 provides:
(a) Immunity from suit of all governmental entities is
removed for injuries resulting from the negligent operation
by any employee of a motor vehicle or other equipment
while in the scope of employment.
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Tenn. Code Ann. § 29-20-202. In its prior order dismissing the public utility,
the court found that the utility could not be liable under Section 202
because the tow truck driver was employed by Metro, not the utility.
Obviously, this analysis does not justify dismissal of Metro, and the court
shall not dismiss the Section 202 claim.
Based upon Metro’s discussion in its brief, it appears that Metro may
have meant to seek dismissal of plaintiff’s Section 203 claim. Section 203
provides:
(a) Immunity from suit of a governmental entity is
removed for any injury caused by a defective, unsafe, or
dangerous condition of any street, alley, sidewalk or
highway, owned and controlled by such governmental
entity. “Street” or “highway” includes traffic control devices
thereon.
Tenn. Code Ann. § 29-20-203. In its prior order, the court found that the
public utility could not be liable under Section 203 because it did not own
Lafayette Street where the accident occurred. For the same reason, Metro
is entitled to dismissal of the Section 203 claim as it does not own Lafayette
Street.
The court turns now to plaintiff’s Section 204 claim. Section 204
provides:
(a) Immunity from suit of a governmental entity is
removed for any injury caused by the dangerous or
defective condition of any public building, structure, dam,
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reservoir or other public improvement owned and
controlled by such governmental entity.
Tenn. Code Ann. § 29-20-204. In its prior order, the court found that a
street light falls under the parameters of Section 204 as either or structure
or improvement, but that conclusion was only the first inquiry. The next
step was to determine if plaintiff could prove the underlying elements of a
tort claim. In order to prove negligence, the plaintiff must first establish that
the defendant owed some duty to him. The question of duty is a question
of law for the court to decide. As discussed previously, the court found that
neither Metro nor the public utility owed a duty to plaintiff to maintain the
street light in working condition. (Doc. 72 at PgID 448-51). This is now the
law of the case.
This Court is compelled follow the law already set forth in this case by
Judge Sharp, under the well-established law-of-the-case doctrine. “As most
commonly defined, the doctrine posits that when a court decides upon a
rule of law, that decision should continue to govern the same issues in
subsequent stages in the same case.” Arizona v. California, 460 U.S. 605,
618 (1983). “This rule promotes finality and efficiency of the judicial
process by ‘protecting against the agitation of settled issues.’” Doyle v. City
of Columbus, 41 F. Supp. 2d 765, 767 (S.D. Ohio 1998)(quoting
Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 816 (1988)).
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“The law of the case doctrine dictates that issues, once decided, should be
reopened only in very limited, exceptional circumstances.” Id. (citing
Petition of United States Steel Corp., 479 F.2d 489, 494 (6th Cir. 1973)).
Such circumstances do not exist here. To the contrary, Judge Sharp’s
opinion was thoughtful and well reasoned and the court adopts his holding
and reasoning here. Based on the doctrine of the law-of-the case, Metro is
entitled to dismissal of the Section 204 claim.
IV. Conclusion
For the reasons set forth above, defendant Metro’s motion for partial
judgment on the pleadings (Doc. 75) is GRANTED and plaintiff’s claims
under Tenn. Code Ann. Sec. 29-20-203 and 204 are DISMISSED.
Plaintiff’s claims arising out of the negligence of the tow truck driver
pursuant to Tenn. Code Ann. Sec. 29-20-202 and 205 remain viable.
IT IS SO ORDERED.
Dated: August 17, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

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