2016 Tennessee Statute Provides for Attorney’s Fees to Be Awarded to State When State Employee is Individually Sued Unsuccessfully Under § 1983

Sometimes state government employees are sued on an individual basis for actions that they took as a government employee.  Often these cases are § 1983 claims asserting the state employee acted inappropriately under the “color of law.”  However, this new statute is not limited to claims under § 1983.  In response, the Tennessee legislature felt it was necessary to provide protection to the State when the individual governmental employee is successful in defending such a claim.  As a result, the 2016 Tennessee added a provision in the law that provides that attorney’s fees and costs should be awarded to the state or the state employee when the state employee is not found to be not responsible when they are sued in their individual.  In fact, the employee is not even required to be successful on the merits, but instead, even if the case is voluntarily dismissed greater than 45 days after an Answer is filed making specific assertions, then the employee is still awarded attorney’s fees and costs.   

Public Chapter No. 848, which was signed into law on April 19, 2016 by Governor Bill Haslam, has been amended and now provides as follows:

(a) Notwithstanding § 20-12-119(c)(5)(A), if a claim is filed with a Tennessee or federal court, the Tennessee claims commission, board of claims, or any other judicial body established by the state or by a governmental entity of the state, against an employee of the state or of a governmental entity of the state in the person's individual capacity, and the claim arises from actions or omissions of the employee acting in an official capacity or under color of law, and that employee prevails in the proceeding as provided in this section, then the court or other judicial body on motion shall award reasonable attorneys' fees and costs incurred by the employee in defending the claim filed against the employee.

2016 Tennessee Legislation Provides Immunity to Businesses and Premises Owners for Failure to Prohibit Weapons on Property

One interesting theory of potential liability against a premises owner is to sue the premises owner for civil liability regarding something that occurred on the property involving guns or other weapons.  The Tennessee legislature previously adopted T.C.A. § 39-17-1359 which provides that a person, business or other entity who controls or manages properties, has the authority to prohibit weapons on that property by making a specific posting.  The key language in that statute is as follows:

(a)(1) Except as provided in § 39-17-1313, an individual, corporation, business entity or local, state or federal government entity or agent thereof is authorized to prohibit the possession of weapons by any person who is at a meeting conducted by, or on property owned, operated, or managed or under the control of the individual, corporation, business entity or government entity.

(2) The prohibition in subdivision (a)(1) shall apply to any person who is authorized to carry a firearm by authority of § 39-17-1351.

The question that has come up since the adoption of this statute (T.C.A. § 39-17-1359), is whether premises owners can be held liable if they do not ban guns from their property using this posting procedure and there is an incident that involves injury to an individual due to the use of such weapons.  The Tennessee legislator addressed this issue in 2016 when it adopted Public Chapter No. 947, which took effect July 1, 2016.  This new statute provides immunity for people, businesses or entities that own property under the legal theory that they failed to prohibit weapons on their property and an injury or death resulted from those weapons.  In other words, under this new statute, the theory that a landowner had the power to ban weapons under T.C.A. § 39-17-1359, they failed to do so, and therefore they are liable for gun violence on their property – is not a legal theory that is viable in Tennessee.  This statute will be found in Title 39, Chapter 17, Part 13, but it has not yet been officially placed in the Tennessee Code (it should be very soon).  This new statute provides as follows:

(a) A person, business, or

Tennessee Changes Statute of Limitations Law for Individuals Who Are Incapacitated or Incompetent.

Tennessee law has long provided that individuals who are adjudicated incompetent at the time the cause of action accrued, may commence the action after their legal rights are restored within the normal time period for the statute of limitations for that cause of action.  The statute did not provide for the statute of limitations time period to run if they never gained competency.  As a result, essentially, an individual who was incompetent who was permanently incompetent, would not have any statute of limitations for any cause of action until the time they die.

In 2016, the Tennessee legislator fixed this problem by amending the applicable statute, T.C.A. § 28-1-106 in Public Chapter 932.  They added subsection (c)(2) of this statute now provides that any individual who has a court-ordered fiduciary (such as a guardian or conservator) or someone who possesses the legal right to bring suit on behalf of a person who lacks capacity, must commence the action on behalf of that person within the applicable statute of limitations.  The statute provides that the fiduciary may not rely upon any tolling of the statute of limitations unless the individual can establish by “clear and convincing evidence that the individual did not and could not reasonably have known of the accrued cause of action.”

The new statute (T.C.A. § 28-1-106) now provides the following:

(a) If the person entitled to commence an action is, at the time the cause of action accrued, either under eighteen (18) years of age, or adjudicated incompetent, such person, or such person's representatives and privies, as the case may be, may commence the action, after legal rights are restored, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from restoration of legal rights.

(b) Persons over the age of eighteen (18) years of age are presumed competent.

(c)(1) If the person entitled to commence an action, at the time the cause of action accrued, lacks capacity, such person or such person's representatives and privies, as the case may be, may commence the action, after removal of such incapacity, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from removal of such incapacity, except as provided for in subdivision (c)(2).

(2) Any individual with court-ordered fiduciary responsibility towards a person who lacks capacity, or any individual who possesses the legal right to bring suit on behalf of a person who lacks c...