source: Caselaw Access Project

author: HOLDER, J.,

license: Public Domain

text:
    Gregory HILL, et al. v. CITY OF GERMANTOWN, et al.
    Supreme Court of Tennessee, at Jackson.
    Oct. 20, 2000.

      Andrew C. Clarke, R. Sadler Bailey, Memphis, for appellant, Gregory Hill.
    Louis Peo Chiozza, Memphis, for appellant, Ronald Crowder.
    John Chapman Duffy, Knoxville, for ap-pellee, City of Germantown, Tennessee.
    Vonda Maillicoat Laughlin, William D. Vines, Knoxville, for amicus curiae, Brenda L. Milton.
    Roger A. Norner, Brentwood, for amicus curiae, Tennessee Municipal Attys. Association.
    James Russell Farrar, Nashville, for amicus curiae, Tennessee Municipal League.
   OPINION

HOLDER, J.,

delivered the opinion of the court, in which

ANDERSON, C.J., and BIRCH and BARKER, JJ., joined.

We granted this appeal to determine: 1) under what circumstances judgment may be entered against an employee of a governmental entity pursuant to TenmCode Ann. § 29-20-310(b) and (c) of the Governmental Tort Liability Act; and 2) whether Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593 (Tenn.1999), applies retroactively to this case to permit loss of consortium damages to be awarded to the plaintiffs. For the reasons stated below, we hold that Tenn. Code Ann. § 29-20-310(b) precludes the entry of a judgment against the employee when the governmental entity’s immunity from suit has been removed pursuant to Tenn. Code Ann. §§ 29-20-202 to — 205. We also hold that Jordan applies retroactively to: (1) all cases tried or retried after the date of our decision in Jordan; and (2) to all cases pending on appeal in which the issue decided in Jordan was raised at an appropriate time. We decline, however, to remand to the trial court to apply Jordan to this case. The plaintiffs have received the maximum amount of damages that may be awarded under the GTLA for a wrongful death claim.

BACKGROUND

On April 11, 1995, Officer Chad Cunningham, a newly-hired City of German-town police officer, was on assignment in his patrol car. Officer John Phillip Hardy rode with Cunningham, acting as his trainer and supervisor. At approximately 4:45 P.M., both officers observed a Buick with an improperly displayed registration tag. The officers attempted to initiate a traffic stop. The Buick, however, accelerated away from the officers.

The officers gave chase. Both vehicles exceeded the speed limit, the Buick reaching speeds in excess of ninety miles per hour. After confirming that the charges were “traffic only,” headquarters instructed the officers by radio to break off the pursuit. They did so. ' Unfortunately, the Buick continued to speed and eventually crossed the center line, colliding with another vehicle. In that vehicle were driver Walterine Crowder and passengers Deborah Hill and her twenty-eight-month-old daughter Amberly Hill.

Crowder and Deborah Hill were seriously injured in the accident and subsequently died at a hospital. Amberly Hill received minor physical injuries but was later diagnosed by a psychiatrist as suffering from post-traumatic stress syndrome.

Gregory Hill filed a complaint individually and in a representative capacity against defendants City of Germantown and Cunningham for the wrongful death of his wife, Deborah Hill, and for the personal injuries of his daughter, Amberly Hill. Ronald Crowder filed a separate complaint individually and in a representative capacity against those same defendants for the wrongful death of his wife, Walterine Crowder. The actions were consolidated for trial.

The trial court, sitting without a jury, found that Officers Cunningham and Hardy were negligent in engaging in a high-speed pursuit of a traffic violator and that the City of Germantown was negligent in failing to adequately train Officer Cunningham with respect to high-speed police pursuits. Damages were assessed at $401,249.32 for the death of Walterine Crowder, $621,071.46 for the death of Deborah Hill, and $151,270.00 for the personal injuries of Amberly Hill. The trial court assessed Defendants’ fault at 35%. Applying the statutory damage caps imposed by the Tennessee Governmental Tort Liability Act (“GTLA”), the trial court awarded $130,000.00 for each of the wrongful death claims, the maximum amount of recovery permitted under the GTLA. An additional $52,944.50 was awarded for the personal injuries of Amberly Hill.

Plaintiffs appealed the trial court’s decision to the Court of Appeals. The Court of Appeals affirmed the trial court’s rulings in all respects. It held that under Tenn.Code Ann. § 29-20-310(c) judgment could not be entered against Officer Cunningham for damages exceeding the caps imposed by the GTLA because the record was devoid of evidence showing his conduct was “willful.” It also held that at the time Plaintiffs’ causes of actions accrued loss of consortium damages were unavailable in Tennessee in wrongful death actions. In so holding, the Court of Appeals held that our decision in Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593 (Tenn.1999), allowing such damages in wrongful death actions, could not be applied retroactively. We granted review.

ANALYSIS

I. Employee’s Liability for Damages

Under the GTLA, governmental entities are immune from suit for injuries occurring as a result of discharge of their functions. See Tenn.Code Ann. § 29-20-201; Hawks v. City of Westmoreland, 960 S.W.2d 10, 14 (Tenn.1997). This general rule, however, is subject to several statutory exceptions. These exceptions remove the immunity provided by § 29-20-201 in particular circumstances. Tennessee Code Ann. § 29-20-205, the statute applicable to this case, removes immunity for negligent acts of employees within the scope of their employment.

When a governmental entity’s general immunity from suit is removed, the GTLA provides additional protection to the entity in the form of a cap on damages. The cap limits damages to $130,000 per claimant and $350,000 per accident. See TenmCode Ann. § 29-20-311; Tenn.Code Ann. § 29-20 — 403(b)(2)(A).

Plaintiffs rely upon TenmCode Ann. § 29-20-310(c) which provides as follows:

(c) No claim may be brought against an employee or judgment entered against an employee for injury proximately caused by an act or omission of the employee within the scope of the employee’s employment for which the governmental entity is immune in any amount in excess of the amounts established for governmental entities in § 29-20-403, unless the act or omission was willful, malicious, criminal, or performed for personal financial gain....

Plaintiffs read § 29-20-310(c) as stating that no judgment may be entered against an employee for acts for which the governmental entity “is immune in any amount in excess of the amounts established for governmental entities.... ” Officer Cunningham therefore may be liable under § 29-20-310(c) of the GTLA for any portion of the damages in excess of the City’s “immunity” under the GTLA. Although the City is no longer immune from suit, it remains immune as to a portion of the “excess” damages. This “immunity as to damages,” Plaintiffs claim, is the type of immunity contemplated by § 29-20-310(c). Since the trial court found Officer Cunningham’s act to be “willful,” Plaintiffs argue that a judgment for damages in excess of the § 29-20-403 caps should be awarded against Officer Cunningham.

Defendants contend that immunity has been removed by Tenn.Code Ann. § 29-20-205, which removes immunity for negligent acts of employees within the scope of their employment. Defendants read § 29-20 — 310(c) to state that no judgment may be entered “against an employee ... in any amount in excess of the amounts established for governmental entities,” except under certain circumstances. Defendants therefore contend that § 29-20-310(c) is not applicable and that § 29-20-310(b) is controlling:

(b) No claim may be brought against an employee or judgment entered against an employee for damages for which the immunity of the governmental entity is removed by this chapter....

TenmCode Ann. § 29-20-310(b) (emphasis added). Defendants claim that the City of Germantown is not an immune governmental entity under § 29-20-310(c) because its immunity was removed by statute, allowing Plaintiffs’ recovery up to the § 29-20-403 caps. The effect of the removal of the City’s immunity is to preclude suit or judgment against Officer Cunningham pursuant to § 29-20-310(b). Whether judgment may be entered against Officer Cunningham therefore first depends upon whether the City of Germantown “is immune” or whether its immunity was “removed” under the GTLA.

“Construction of a statute is a question of law which we review de novo, with no presumption of correctness.” Myint v. Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn.1998). While we are bound to interpret the statute so that the legislative intent is given effect, see Carson Creek Vacation Resorts, Inc. v. Department of Revenue, 865 S.W.2d 1, 2 (Tenn.1993), where “a statute is without contradiction or ambiguity, there is no need to force its interpretation or construction, and [we] are not at liberty to depart from the words of the statute.” Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799, 803 (Tenn.2000). When statutory provisions are, as in this case, enacted as part of a larger Act, “we examine the entire Act with a view to arrive at the true intention of each section and the effect to be given, if possible, to the entire Act and every section thereof. Where different sections are apparently in conflict we must harmonize them, if practicable, and lean in favor of a construction which will render every word operative.” Bible & Godwin Constr. Co. v. Faener Corp., 504 S.W.2d 370, 371 (Tenn.1974).

We find Plaintiffs’ construction of § 29-20 — 310(c) to be unpersuasive. We agree with the Court of Appeals’ analysis of § 29-20-310(b) and (c) in Erwin v. Rose, 980 S.W.2d 203 (Tenn.Ct.App.1998). In Erwin, the plaintiffs argued that the governmental entity’s employee should be personally liable for damages exceeding $130,000 despite the removal of the entity’s immunity from suit.

The court in Emin concluded that the employee could not be held liable under the GTLA. In so holding, it described the GTLA’s function as follows:

Reading [§ 29-20-310(b) and (c) ] together, it is obvious that the legislature wished to limit the exposure of municipal employees while it selectively removed the immunity of the municipality itself. It did so in two ways: (1) by giving the employee absolute immunity in cases where the municipality’s immunity was removed (subsection (b)), and (2) by limiting the employee’s liability in cases in which the municipality was yet immune to the limits in TenmCode Ann. § 29-20-403 — unless the employee’s acts were willful, malicious, criminal, or performed for personal financial gain (subsection (c)).

Id. at 206.

We find the Emin court’s interpretation and construction of § 29-20-310(b) and (c) to be correct. Comparison of §§ 29-20-202 to — 205 with § 29-20-310(b) and (c) also supports our conclusion that “immunity from damages” is not the intention of the statute. Each of the statutory provisions that operates to remove a governmental entity’s immunity does so byre-moving “immunity from suit.” See Tenn. Code Ann. § 29-20-202 (removing immunity from suit for negligent operation of motor vehicles); Tenn.Code Ann. § 29-20-203 (removing immunity from suit for injury from unsafe streets and highways); TenmCode Ann. § 29-20-204 (removing immunity from suit for injury from dangerous structures); Tenn.Code Ann. § 29-20-205 (removing immunity from suit for negligent acts of employees). Those statutes make no reference to “immunity from damages.”

The type of immunity contemplated by § 29-20-310(c) is immunity from claim or suit, not immunity from damages. Once a governmental entity has had its immunity from suit removed by §§ 29-20-202 to— 205, it may no longer be considered immune for purposes of § 29-20-310(c) even though it is not liable for some portion of the plaintiffs’ damages. While it is not unreasonable to view the award caps of § 29-20-403 as somehow operating to “immunize” a governmental entity from paying damages in excess of the caps, that clearly is not the type of immunity contemplated in either § 29-20-301(b) or (c).

Under our construction of these statutes, the City’s immunity has been removed and Plaintiffs may recover as provided by Tenn.Code Ann. § 29-20-403 against the City. Accordingly, no judgment may be rendered against Cunningham. The judgment of the Court of Appeals is affirmed as to this issue.

II. Loss of Consortium

Plaintiffs contend that the trial court erred in failing to award damages for loss of consortium. They further contend that loss of consortium represents a separate injury under the GTLA. Defendants claim that Plaintiffs received the maximum allowable award under the GTLA and are therefore precluded from further recovery, rendering any claim for consortium moot.

Plaintiffs claim damages under the Tennessee wrongful death statute. We thoroughly discussed the nature of Tennessee’s wrongful death damages statute, Tenn. Code Ann. § 20-5-113, in Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593 (Tenn.1999). We recognized that wrongful death actions in Tennessee are authorized by a hybrid statute, consisting of both “survivor” and “pure wrongful death” components. See id. at 597-98.

The “survivor” component permits the victim’s estate to recover “damages that would have been recovered by the victim had the victim survived.” Id. at 597. The “pure wrongful death” component of the statute permits “survivors of the deceased [to] recover damages for their losses suffered as a result of the death.” Id. at 598. These “pure wrongful death” damages are intended to represent the “pecuniary value” of the decedent’s life. See id. at 600. In Jordan, we held that loss of consortium damages were recoverable by the decedent’s family as a part of the pecuniary value of the decedent’s life. See id. at 600-02.

Prior to Jordan, however, Tennessee case law prohibited consortium damages in wrongful death suits. See, e.g., Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967 (Tenn.1903). The cause of action in this case arose on April 11, 1995, the date of the accident, almost four years before Jordan was released. Accordingly, we must determine if Jordan should be applied retroactively.

Jordan involved the overruling of prior judicial construction of a statute. In civil cases, judicial decisions overruling pri- or cases generally are given retrospective effect. See, e.g., Perez v.. McConkey, 872 S.W.2d 897, 906 (Tenn.1994) (applying abolition of assumption of the risk doctrine retroactively); Cook v. Spinnaker’s of Rivergate, Inc., 846 S.W.2d 810, 812 (Tenn.1993) (further describing proper retroactive application of McIntyre ); McIntyre v. Balentine, 833 S.W.2d 52, 58 (Tenn.1992) (applying comparative fault doctrine retroactively). Retrospective effect will be “denied only if such an application would work a hardship upon those who have justifiably relied upon the old precedent.” Marshall v. Marshall, 670 S.W.2d 213, 215 (Tenn.1984); see generally, S.R. Shapiro, Annotation; Prospective or Retroactive Operation of Overruling Decision, 10 A.L.R.3d 1371 (1966).

Nevertheless, we expressly held in Blank v. Olsen, 662 S.W.2d 324 (Tenn.1983), that “in the absence of ... an expressed intent [to make it retroactive,] the rule is ... that the decision overruling a judicial construction of a statute will not be given retroactive effect.” Id. at 325 (emphasis added) (citing 20 Am.Jur.2d Courts § 234 (current version at 20 Am. Jur.2d Courts § 175)). We cited with approval authority from other jurisdictions that had held “a judicial interpretation of a statute becomes a part of the statute itself’ and that “[a] change in the judicial view of the law by a subsequent decision could not amount to more than a change in the law by legislation, and, of course, could act prospectively only.” Id. at 326 (internal quotations and citations omitted).

Recent unpublished decisions of the Court of Appeals have declined to apply Jordan retroactively. Each of these holdings was based on a correct interpretation and application of Blank and turned largely on the fact that we included no language in Jordan directing that our holding was to be applied retroactively. We are constrained to note, however, that the absence of language directing the retroactivity of the Jordan decision was a product of oversight rather than the result of a judicial decision to limit Jordan to prospective application only. As the issue of retroactivity of Jordan is now squarely before us, we take the opportunity, within Blank’s rule, to correct our oversight. Cf. Lease v. Tipton, 722 S.W.2d 379 (Tenn.1986) (applying holding of Davis v. Davis, 657 S.W.2d 753 (Tenn.1983) retroactively three years after Davis’s release).

We held in Blank that a judicial decision overturning a prior judicial construction of a statute could not be applied retroactively “in the absence of ... expressed intent.” Blank, 662 S.W.2d at 325. We now express that intent. We hold that Jordan applies retroactively to: (1) all cases tried or retried after the date of our decision in Jordan; and (2) to all cases pending on appeal in which the issue decided in Jordan was raised at an appropriate time. We are aware that our holding will require retrial of some cases and the expenditure of additional judicial resources. Still, we cannot perpetuate denial of retroactive application of Jordan when that result was not our intention.

In this case, Plaintiffs’ claims for loss of consortium were properly pleaded in the trial court and raised on appeal. The issue of loss of consortium damages is therefore properly before us. Retroactive application of Jordan, however, would not increase Plaintiffs’ damages. In Jordan we expressly stated, “This holding does not create a new cause of action but merely refines the term ‘pecuniary value.’ ” Jordan, 984 S.W.2d at 601. Pursuant to our statute, loss of consortium damages in a wrongful death claim are wholly contained within the award for wrongful death. Plaintiffs have each received $130,-000, the maximum allowable award under the GTLA per injured person. See Tenn. Code Ann. § 29-20-403(b)(2)(A). Loss of consortium damages could not increase the total amount of the award. Accordingly, we decline to remand these eases to the trial court to consider the issue of inclusion of loss of consortium damages in the pecuniary value of the decedents’ lives.

CONCLUSION

Pursuant to Tenn.Code Ann. § 29-20-310(b), judgment may not be entered against Officer Cunningham because the City’s “immunity from suit” was removed pursuant to Tenn.Code Ann. § 29-20-205. We also hold that Jordan applies retroactively to: (1) all cases tried or retried after January 25, 1999, the date of our decision in Jordan; and (2) to all cases pending on appeal in which the issue decided in Jordan was raised at an appropriate time. Because Appellants have received the maximum amount of damages that may be awarded under the GTLA, however, we decline to remand for the purpose of application of Jordan in these cases. Accordingly, the decision of the Court of Appeals is affirmed in part and reversed in part.

Costs on appeal are taxed to Plaintiffs/Appellants, Gregory Hill and Ronald Crowder, for which execution may issue if necessary.

DROWOTA, not participating.

      . The liability of the other named defendants, Officer Hardy and City of Germantown Chief of Police Eddie Boatwright, is not at issue in this appeal.

      . The remaining 65% of fault was attributed to the driver of the Buick.

      . Tenn.Code Ann. § 29-20-205 provides:
      Immunity from suit of all governmental entities is removed for injury proximately caused by a negligent act or omission of any employee within the scope of his employment. ...

      . See Hancock v. Chattanooga-Hamilton County Hosp. Auth., No. E1999-00169-COA-R9-CV, 2000 WL 1035894 (Tenn.Ct.App. July 27, 2000); Rothstein v. Orange Grove Ctr., Inc., No. E1999-00900-COA-R3-CV, 2000 WL 682648 (Tenn.Ct.App. May 25, 2000); see McCracken v. City of Millington, No. 02A01-9707-CV-00165, 1999 WL 142391 (Tenn.Ct.App. March 17, 1999).

      . The plaintiffs’ claims for loss of consortium were, in fact, properly pleaded prior to our decision in Jordan.


author: BIRCH, J.,

text:
    James C. TUCKER v. FOAMEX, L.P.
    Supreme Court of Tennessee, at Jackson.
    Nov. 6, 2000.
    P. Allen Phillips, Jackson, TN, for appellant, Foamex, L.P.
    Jeffrey A. Garrety and Tandra R. Gris-ham, Jackson, TN, for appellee, James C. Tucker.
   OPINION

BIRCH, J.,

delivered the opinion of the court, in which

ANDERSON, C.J., HOLDER and BARKER, JJ., joined.

In this workers’ compensation case, James C. Tucker, a 59-year-old employee, sustained a compensable injury to his left shoulder. The trial court found that he had sustained a 92 percent permanent partial disability and granted him 368 weeks of benefits (92 percent of 400 weeks provided by statute for permanent partial disability to the body as a whole). The employer, Foamex, L.P., requested review, contending that Tucker was entitled to benefits only up to the age of 65 based on Tenn.Code Ann. § 50-6-207(4)(A)(i) and this Court’s decisions interpreting that statute. The case was argued before the Special Workers’ Compensation Appeals Panel, but has been transferred, prior to issuance of a memorandum opinion, to the Supreme Court. The issue is whether an award of permanent partial disability benefits is subject to the age-65 limitation of Tenn.Code Ann. § 50-6-207(4)(A)(i). After due consideration, we hold that the age-65 limitation does not apply to employees under the age of 60 who sustain a permanent partial disability to the body as a whole. Accordingly, the judgment of the trial court is affirmed.

I.Facts and Procedural History

The facts are undisputed. On the date of the work-related injury, 59-year-old James C. Tucker had been employed by Foamex, L.P. for over 30 years. Tucker’s injury occurred on May 8, 1998, when he fell while attempting to move a 175-180 pound “bun” of foam that was traveling off-center on a conveyer. As he fell, Tucker struck his left shoulder on a cart. He was subsequently diagnosed as having sustained a torn rotator cuff, and surgery was performed to repair the injured shoulder. Tucker reached maximum medical improvement on January 19, 1999 (seven days after his sixtieth birthday).

As a result of his injury, Tucker experienced continuing pain in his left shoulder, numbness and tingling in his left arm and hand, and numbness in the little, ring, and middle fingers of his left hand. This pain significantly interfered with his sleep and limited his daily activities.

Tucker obtained opinions from two orthopedic surgeons concerning his condition and degree of impairment. The first assigned a 19 percent anatomical impairment rating to the upper extremity, or 11 percent to the body as a whole. The second assigned an impairment rating of 27 percent to the upper extremity, or 16 percent to the body as a whole. Tucker was restricted to lifting 40 pounds or less and was prohibited from performing overhead work.

The trial court found that Tucker was 92 percent permanently partially disabled. The trial court rejected Foamex’s argument that Tucker’s award should be limited to the number of weeks from the date of maximum medical improvement to Tucker’s sixty-fifth birthday. Instead, the trial court awarded 368 weeks of benefits (92 percent of 400 weeks). Thus, under the trial court’s judgment, Tucker would continue receiving benefits for approximately two years after his sixty-fifth birthday.

II.Standard of Review

The standard of review by this Court in workers’ compensation cases is de novo upon the record, accompanied by a presumption of the correctness of the factual findings, unless the preponderance of the evidence is otherwise. Tenn.Code Ann. § 50-6-225(e)(2) (Supp.1998); Spencer v. Towson Moving and Storage, Inc., 922 S.W.2d 508, 509 (Tenn.1996). This case, however, involves questions of law. Thus, we are not bound by the preponderance of the evidence standard, and we review questions of law de novo without limitation. Spencer, 922 S.W.2d at 509; Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn.1996).

III.Analysis

We begin our analysis by noting that compensable injuries resulting in permanent partial disability to the body as a whole usually are governed by Tenn.Code Ann. ' § 50 — 6—207(3)(F). This statute states in pertinent part:

All other cases of permanent partial disability not above enumerated shall be apportioned to the body as a whole, which shall have a value of four hundred (400) weeks, and there shall be paid compensation to the injured employee for the proportionate loss of use of the body as a whole resulting from the injury.

This statute was the basis for the trial court’s award in the pending case — 368 weeks of benefits (92 percent of 400 weeks).

Foamex insists that the trial court erred in setting the award under Tenn. Code Ann. § 50-6-207(3)(F) and contends that Tucker is not entitled to any workers’ compensation benefits beyond his sixty-fifth birthday because of Tenn. Code Ann. § 50-6-207(4)(A)(i) and this Court’s decisions interpreting that statute. The statute provides in pertinent part:

[Compensation shall be paid during the period of the permanent total disability until the employee reaches sixty-five (65) years of age; provided, that with respect to disabilities resulting from injuries which occur after sixty years of age, regardless of the age of the employee, permanent total disability benefits are payable for a period of two hundred sixty (260) weeks. Such compensation payments shall be reduced by the amount of any old age insurance benefit payments attributable to employer contributions which the employee may receive under the Social Security Act, U.S.C., title 42, chapter 7, subchapter II, as amended.

TenmCode Ann. § 50-6-207(4)(A)(i) (emphasis added).

In a series of cases beginning with Vogel v. Wells Fargo Guard Serv., 937 S.W.2d 856 (Tenn.1996), the Court examined the scope of Tenm.Code Ann. § 50-6-207(4)(A)(i). In Vogel, a 73-year-old employee sustained a work-related injury which resulted in a permanent total disability. The employee challenged the 260-week provision imposed by Tenn.Code Ann. § 50-6-207(4)(A)(i) on awards of permanent total disability to employees over the age of 60. The employee argued that the 260-week provision was irrational because an employee over the age of 60 who was permanently partially disabled could receive more benefits than an employee of the same age who was permanently totally disabled. We agreed that it was irrational to apply the provision to permanent total disability awards and not to permanent partial disability awards to employees over the age of 60. And while we rejected the result sought by the employee (to hold the statute unconstitutional and to award the employee “lifetime benefits”), we stated that “[i]n order to lend some rationality to the compensation scheme, we conclude that the 260 week cap set forth in Tenn. Code Ann. § 50-6-207(4)(A)(i) applies to all injured workers over sixty who are awarded benefits under the Workers’ Compensation statute for permanent partial or permanent total disability.” Id. at 862.

In McIlvain v. Russell Stover Candies, Inc., 996 S.W.2d 179 (Tenn.1999), we addressed the question of whether Tenn. Code Ann. § 50-6-207(4)(A)(i) applied to an employee over the age of 60 who sustained a scheduled-member injury resulting in a 40 percent vocational disability to each arm. Russell Stover Candies, Inc. argued that the employee should have been awarded benefits equivalent to 40 percent of 260 weeks (the provision set out in Tenn.Code Ann. § 50 — 6—207(4)(A)(i)), rather than benefits equivalent to 40 percent of 400 weeks. Id. at 182-83. We rejected this argument, holding instead that the 260-week provision does not apply to awards for injuries to scheduled members but does apply to employees over the age of 60 who suffer injuries to the body as a whole, whether permanent partial or permanent total in nature. Id. at 185.

In two more recent cases, McCoy v. T.T.C. Illinois, Inc., 14 S.W.3d 734, 736-37 (Tenn.2000), and Smith v. U.S. Pipe & Foundry Co., 14 S.W.3d 739, 742-43 (Tenn.2000), we reiterated our holdings in Vogel and Mcllvain. Thus, the law is settled that awards'for permanent partial disability to the body as a whole and awards for permanent total disability are controlled by Tenn.Code Ann. § 50-6-207(4)(A)(i) when the employee is over the age of 60 when the injury occurs.

In none of our earlier cases, however, have we addressed the issue now before the Court. Foamex argues that our reasoning in Vogel should be extended to cover situations in which the employee: (1) is not over the age of 60 at the time of the injury; (2) is within 400 weeks of his or her sixty-fifth birthday at the time benefits become payable; and (3) sustains a permanent partial disability to the body as a whole, the extent of which otherwise would result in the payment of benefits past the age of 66. Foamex asserts that in such cases the phrase “compensation shall be paid during the period of the permanent total disability until the employee reaches sixty-five (65) years of age” should be construed by the Court to also include cases of permanent partial disability to the body as a whole. To illustrate, Foamex points out that Tucker sustained a 92 percent permanent partial disability to the body as a whole at the age of 59 and was awarded 368 weeks of benefits (which would be payable until he is approximately the age of 67). If Tucker had been permanently totally disabled, he only would have received benefits up until his sixty-fifth birthday pursuant to Tenn.Code Ann. § 50-6-207(4)(A)(i). Thus, he would have received less in benefits if he had been permanently totally disabled than he would receive for a permanent partial disability to the body as a whole. Foamex asserts that this result is comparable to the “irrational result” the Court found to exist in Vogel.

On the other hand, Tucker contends that Tenn.Code Ann. § 50-6-207(4)(A)(i) does not apply to this case. He asserts that Vogel and the cases that followed Vogel all pertained to employees over the age of 60 and involved either the question of whether the employee’s award was limited by the 260-week provision set out in Tenn. Code Ann. § 50-6-207(4)(A)(i) or the question of whether the employer was entitled to the statutory offset for social security old age retirement benefits. He contends that Tenn.Code Ann. § 50-6-207(4)(A)(i) does not limit his permanent partial disability award to benefits payable only until his sixty-fifth birthday.

In considering the parties’ contentions, we note that there are three separate parts to the portion of Tenn.Code Ann. § 50-6-207(4)(A)(i) quoted at the beginning of our analysis. The first part is the general provision stating that “compensation shall be paid during the period of the permanent total disability until the employee reaches sixty-five (65) years of age[.]” The second part is a provision establishing a 260-week duration for permanent total disability benefits to injured employees over the age of 60. The third part provides for a statutory offset for social security old age insurance benefits.

Tucker correctly points out that Vogel pertained to the issue whether the 260 week provision in Tenn.Code Ann. § 50-6-207(4)(A)(i) also applies to permanent partial disability awards to employees over the age of 60 (the “second part” referred to in the preceding paragraph). Likewise, our decisions in Mcllvain, McCoy, and Smith pertained to the application of the 260-week provision and the application of the social security old age retirement benefits offset provided for in the statute (the “second” and “third” parts referred to in the preceding paragraph). In the pending case, neither the 260 week provision nor the offset for social security old age retirement benefits is at issue. The pending case only involves the “first part” — the phrase “compensation shall be paid during the period of the permanent total disability until the employee reaches sixty-five (65) years of age[.]” It is this phrase that Foamex asks the Court to apply to employees who are not over the age of 60 but are within 400 weeks of their sixty-fifth birthday at the time benefits for permanent partial disability to the body as a whole become payable.

We reject Foamex’s contention that the reasoning in Vogel applies with equal force in the pending case. Our decision in Vogel was limited to the narrow issue of whether the 260-week provision for permanent total disability benefits for employees over the age of 60 also applied to permanent partial disability benefits for employees over the age of 60. Our subsequent decisions in McIlvain, McCoy, and Smith were similarly limited to the 260-week provision and the statutory offset. We decline to extend the reasoning in those cases beyond their limited scope because to do so effectively would require us to rewrite the statute and would substantially limit, without clear statutory authority, benefits to many partially disabled workers between the ages of 58 and 60. See Lindsey v. Smith & Johnson, Inc., 601 S.W.2d 923, 925 (Tenn.1980) (stating that workers’ compensation statutes “should be rationally but liberally construed to promote the Act’s purposes of securing benefits to [covered employees]”).

We hold that for an employee who is not over the age of 60 on the date of the injury but is within 400 weeks of his or her sixty-fifth birthday when benefits for permanent partial disability to the body as a whole become payable, Tenn.Code Ann. § 50-6-207(4)(A)(i) does not limit an award for permanent partial disability to the body as a whole to benefits payable only until the employee’s sixty-fifth birthday. In such cases, the award is determined pursuant to Tenn.Code Ann. § 50-6-207(3)(F) (as was done by the trial court in this case).

The Court recognizes that under our holding some employees could receive a larger award for a permanent partial disability to the body as a whole than they would receive if they were found permanently totally disabled. Moreover, we recognize that applying the statutes as written could place employers in the position of arguing that the worker is more disabled and the employee in the position of arguing that he or she is less disabled. (Had the employer in this case successfully argued that the employee was totally disabled, it would have avoided paying 109 weeks of additional benefits.) We faced a similar situation in Mcllvain in the context of scheduled-member awards. As we stated in Mcllvain:

We can imagine a situation in which a worker over age 60 who sustains a permanent total disability or a permanent partial disability to the body as a whole receives a smaller award than a worker over age 60 who receives a permanent partial disability to a scheduled member.... As we noted in Vogel, however, “[i]t is the business of the legislature to pass new laws and modify existing ones.”

McIlvain, 996 S.W.2d at 185 (quoting Vogel, 937 S.W.2d at 862). We said it in McIlvain, and we reiterate here that the legislature should consider addressing the anomalies resulting from applying the statutes as currently written.

IV. Conclusion

In conclusion, the trial court did not err in basing its award for permanent partial disability to the body as a whole on Tenn. Code Ann. § 50-6-207(3)(F). For employees who are not over the age of 60 at the time of their injuries but are within 400 weeks of their sixty-fifth birthday when permanent partial disability benefits become payable, Tenn.Code Ann. § 50-6-207(4)(A)(i) does not limit an award for permanent partial disability to the body as a whole to benefits payable only until the age of 65. Accordingly, we affirm the judgment of the trial court. The costs are taxed to Foamex, L.P.

DROWOTA, J., not participating.

      . Foamex does not challenge on appeal the trial court's finding of a 92 percent permanent partial disability to the body as a whole.

      . The parties have consistently referred to this 260 week period as a "cap” on benefits. However, it is important to note that the 260-week provision originally extended benefits for totally disabled workers over the age of 60 because it allowed them to receive five years (260-weeks) of benefits despite the age-65 limitation otherwise contemplated by the statute. The 260-week provision only becomes a "cap” when it is applied to partially disabled workers over the age of 60, thus shortening the 400-week period of benefits normally available for permanent partial disability to the body as a whole. This use of the 260-week period as a “cap” comes not from the language of the statute itself, but from the expansion of the statute we created in Vogel.

      . At one point in its brief, Foamex seems to argue that the 260-week provision of Tenn. Code Ann. § 5 0 — 6—207(4)(A)(i) applies to Tucker because his sixtieth birthday occurred prior to the date of maximum medical improvement. This argument is without merit— the statute provides that the 260-week provision applies to "injuries which occur after 60 years of age.” (Emphasis added.)

      . As a practical matter, it appears this situation could arise only in cases in which the employee is between 58 and 60 years of age. In cases involving younger employees, the employee would be more than 400 weeks from his or her sixty-fifth birthday when permanent partial disability benefits accrued; consequently, this issue concerning the interplay between Tenn.Code Ann. § 50-6-207(3)(F) and (4)(A)(i) would not arise. In cases involving workers who are 60 or older, Vogel applies and permanent partial disability awards are limited to 260 weeks of benefits.


text:
    Wanda HALBERT v. The SHELBY COUNTY ELECTION COMMISSION, et al.
    Supreme Court of Tennessee, at Jackson.
    Nov. 6, 2000.
    Mimi Phillips, Memphis, TN, Memphis, for appellant, Wanda Halbert.
    Robert L.J. Spence, Jr., Memphis, for appellees, Shelby County Election Commission and individually named commissioners.

      Allan J. Wade, for appellee, Michael A. Hooks, Jr.; Ernest G. Kelly, Jr., and Board of Education of the Memphis City Schools.
   OPINION

BIRCH, J.,

delivered the opinion of the court, in which

ANDERSON, C.J., HOLDER and BARKER, JJ., joined. DROWOTA, J., not participating.

This matter is before us on direct appeal from the Chancery Court of Shelby County pursuant to TenmCode Ann. § 2-17-116. At issue is Michael A. Hooks, Jr.’s eligibility to be elected to and serve on the Board of Education of the Memphis City Schools (School Board). His eligibility hinges on the meaning of the term “resident voter” as used in the School Board’s charter. Wanda Halbert, the appellant, contends that Hooks was not a “resident voter” and is thus ineligible to serve on the School Board. The trial court found that Hooks was, indeed, a “resident voter” and eligible to serve as a member of the School Board. The judgment of the trial court is, therefore, affirmed, and this cause is dismissed.

I. Facts and Procedural History

The appellant, Wanda Halbert, and the appellee, Michael A. Hooks, Jr., were candidates for a seat on the Board of Education of the Memphis City Schools, to be filled by election August 6, 1998. Shortly before the election, Halbert learned that Hooks had registered to vote in Shelby County on June 16, 1997, and had never voted. Based on these facts, Halbert filed a petition in the Chancery Court challenging Hooks’ eligibility to serve on the School Board and seeking declaratory and injunctive relief. The trial court denied the request for a temporary restraining order. Hooks received almost fifty-six percent of the votes cast on August 6, 1998, and a majority of the votes cast in the general election held November 3, 1998.

Halbert contends that the August 6, 1998, and November 3, 1998, elections are void because Hooks was not eligible to serve on the School Board. She seeks a new election. See Forbes v. Bell, 816 S.W.2d 716, 719-24 (Tenn.1991); Emery v. Robertson Co. Election Com’n, 586 S.W.2d 103, 109 (Tenn.1979). In response, Hooks insists that he has complied with all residency and eligibility requirements or, in the alternative, if the School Board’s charter establishes a durational registration requirement, such requirement infringes on his right to hold public office in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Cf. Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). Thus, the essential issue before us is whether Hooks is eligible to serve as a member of the Board of Education of the Memphis City Schools. The resolution of this issue hinges on the meaning of the term “resident voter” as used in the School Board’s charter.

We are of the opinion that the term “resident voter” neither requires nor includes that the subject person either register or vote. Thus, we conclude that Hooks met all eligibility requirements for service on the School Board. We affirm the judgment of the Chancery Court and dismiss this cause of action.

II. Standard of Review

The issue presented is a question of law to be reviewed de novo with no presumption of correctness given the lower court’s judgment. Myint v. Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn.1998).

In construing legislative enactments, the principal goals are to ascertain the legislative intent and give it effect without unduly restricting or expanding its coverage beyond its limited scope. Austin v. Memphis Pub. Co., 655 S.W.2d 146, 148-49 (Tenn.1983). That intent is primarily discerned from the language of the enactment. Browder v. Morris, 975 S.W.2d 308, 311 (Tenn.1998). “Courts are restricted to the natural and ordinary meaning of the language used by the legislature in the statute, unless an ambiguity requires resort elsewhere to ascertain legislative intent.” Id. Where different meanings are possible from the language, an ambiguity exists. Owens v. State, 908 S.W.2d 923, 926 (Tenn.1995).

III. Analysis

The Memphis City Schools is a special school district whose charter comprises a series of Private Acts of the Tennessee General Assembly, the earliest of which was enacted in 1869. The act relevant here took effect in 1970. Essentially, it adds to the eligibility requirements for service on the School Board by imposing a five-year durational-residency requirement:

No person shall be elected, or appointed as hereinafter provided, as a member of the Board of Education of the Memphis City Schools unless he or she shall have been a resident voter and taxpayer of the City of Memphis for not less than five (5) years preceding his or her election or appointment....

Id. (emphasis added).

The appellant concedes that Hooks has at all times been a resident of the City of Memphis. That Hooks has been eligible to vote for more than five years preceding the election is conceded also. The appellant’s sole contention, then, is that the term “resident voter” in the charter requires that a candidate actually register and vote five years prior to the election as distinguished from merely being eligible to do so. Though eligible much earlier, Hooks registered to vote approximately one year before the election. Thus, Hooks’ eligibility to serve hinges solely on the construction of Chapter 340 of the 1970 Private Acts.

To resolve this matter, we must construe the term “resident voter.” While the term is not defined in the Act, the residence requirements are not contested, so our focus is on the word “voter” as used in the term “resident voter.” The word “voter” is, however, undefined in context. Moreover, the word has several possible meanings as is noted by Black’s Law Dictionary:

The word has two meanings — a person who performs the act of voting, and a person who has the qualifications entitling him to vote. Its meaning depends on the connections in which it is used, and is not always equivalent to electors. In a limited sense a voter is a person having the legal right to vote, sometimes called a legal voter.

Black’s Law Dictionary 1576 (6th ed.1990). Thus, we must treat it as ambiguous and look to sources beyond the Act for its meaning. In so doing, we find our decision in Trammell v. Griffin persuasive.

In Trammell, we were asked to determine whether the word “voter,” as used in a city charter, meant “a person having the qualifications entitling him to vote, or ... a person who has registered and thus lawfully evidenced his right to vote.” Id. We concluded that “[a]n inspection of our election and registration laws demonstrates that the word ‘voter’ is used therein in the sense of one who is qualified to vote, and not in the sense of a registered voter.” Id. at 727. In reaching this conclusion, we relied on the principle that registration laws do not pertain to the “qualifications” that citizens are required to possess before being “entitled to vote” but rather to the regulation of the exercise of that right.

Our decision in Trammell is consistent with decisions from other jurisdictions. For example, in Gilbert v. Breithaupt, the Nevada Supreme Court held that registration was not required in order to constitute the appellant as a “qualified voter.” 60 Nev. 162, 104 P.2d 183 (1940). Similarly, in In Re Ray, the Circuit Court of New Jersey determined that a citizen of New Jersey was a “legal voter” despite not having registered. 26 N.J. Misc. 56, 56 A.2d 761 (1947). In reaching this conclusion, the court reasoned that:

[t]he right to hold office is a valuable one and its exercise should not be declared prohibited or curtailed except by plain provisions of law ... Statutes imposing disqualifications are to be construed strictly, while those declaring qualifications are to receive a liberal construction. In consequence, ambiguities are to be resolved in favor of eligibility to office.... The purpose of requiring voters to register permanently is to protect the purity of the ballot box, by ascertaining before the vote is cast whether or not such persons possess the qualifications to vote and by preventing impersonations thereafter at the polls.

Id. at 763 (all citations omitted). The court continued:

[i]n the present case the incumbent Ray was elected by a vote of the people. He should not be prevented from taking his seat as councilman, unless clearly ineligible under some constitutional or statutory provision. The language of R.S. 19:23-15, N.J.S.A., in requiring a person accepting the endorsement for nomination to stand for office to certify that he is a legal voter, is not sufficiently explicit to show a legislative intent to deprive a person otherwise qualified from the right to hold a public office because he is not a registered voter. It is my opinion that the legislature, in employing the tenn ‘legal voter’ in the above section, meant to refer to those qualities which must exist, in sum, to make of him a voter, as conferring on him the right to be placed among the class of persons which the constitution of our state creates and declares voters. When the legislature passed the permanent registration law, it is my belief it did not intend to alter the qualifications of one seeking public office. The latter law refers to the idea of a recording of the fact that a person has given proper evidence of the existence of the qualities which constitute him a legal voter. The election laws were never intended to set forth qualifications of office holders. Cl

Id. at 765 (citations omitted).

We hold, therefore, that the term “resident voter” as used in the School Board’s charter provision establishing the eligibility requirements for service on the Board of Education of the Memphis City Schools requires the candidate to possess the legal qualifications which would entitle him or her to vote in the election if registered. We hold also that registration laws do not affect the qualifications for voting; they merely regulate how “voters” may exercise this right. Thus, registration laws have no application here.

IV. Conclusion

As discussed above, we hold that Hooks is a “resident voter” and is thus eligible to serve as a member of the School Board. We, therefore, do not reach the constitutional issues raised by Hooks. Accordingly, the judgment of the trial court is affirmed, and this cause is dismissed.

Costs are taxed to the appellant, Wanda Halbert.

      . Other named party/appellees are The Shelby County Election Commission; Myra Stiles, Commissioner; O.C. Pleasant, Jr., Commissioner; David H. Lillard, Commissioner; Yvonne B. Acey, Commissioner; Richard Holden, Commissioner; and The Board of Education of Memphis City Schools.

      . Subject to the general election.

      . 1970 Tenn.Private Acts ch. 340, § 2.

      . 141 Tenn. 139, 207 S.W. 726 (1918).

      . The term “registered voter” is defined as "a qualified voter who has fulfilled the registration requirements of this title." Tenn.Code Ann. § 2 — 1—104(a)(23)( 1994). "Qualified voter” is defined as a United States citizen who is 18 years or older and who is a resident of Tennessee. Tenn.Code Ann. § 2-2-102 (1994). Halbert insists that the prior version of this section, which defined "qualified voter” as "a resident of the State for a period of at least twenty days prior to offering himself for registration,” is applicable. Tenn.Code Ann. § 2-2-102 (1985). We find that registration serves the regulatory function of verifying a citizen's qualifications to vote; it is irrelevant to the determination of a citizens’ qualifications to vote. Nor do we find persuasive the proposition that an election in 1998 would be governed by a previously deleted more restrictive version of the election laws.
      Halbert also contends that the 1978 amendment to the Tennessee Constitution, art. IV, § 1, which added the phrase "being duly registered in the county of residence” to the description of those citizens entitled to vote, "creates a constitutional mandate that registration’ be a 'qualification' for voting." We find Halbert’s contention without merit. As noted above, registration laws regulate the act of voting. Such laws, however, do not affect the qualifications a citizen is required to possess before being entitled to vote. Thus, the constitutional amendment adding the phrase referring to registration does not address the underlying qualifications required of a citizen. Rather, the amendment serves to regulate and protect the integrity of elections and the election process.

      . "[Ujnder Tennessee law, courts do not decide constitutional questions unless resolution is absolutely necessary for determination of the case and the rights of the parties.” Owens v. State, 908 S.W.2d 923, 926 (Tenn.1995). Furthermore, when reviewing legislative enactments challenged as unconstitutional, “we are required to indulge every presumption and resolve every doubt in favor of the constitutionality of the statute.” Petition of Burson, 909 S.W.2d 768, 775 (Tenn.1995); Shelby Co. Election Com’n v. Turner, 755 S.W.2d 774, 777 (Tenn.1988). However, several courts have found that a durational registration requirement for candidacy is unconstitutional. See Board of Sup’rs of Elections v. Goodsell, 284 Md. 279, 396 A.2d 1033, 1039-40 (1979) (and cases cited therein); Treiman v. Malmquist, 342 So.2d 972, 976 (Fla.1977). We, however, do not need to reach that issue.


author: BEN H. CANTRELL, Presiding Judge, M.S.

text:
    William J. REVIS, Plaintiff/Appellant, v. Graham J. McCLEAN, Quebecor Printing (USA) Corp., Bill Mahoney and Quebecor Printing Dickson, Inc., Defendants/Appellees.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    March 13, 2000.
    Permission to Appeal Denied by Supreme Court Oct. 9, 2000.

      Ann Buntin Steiner, Nashville, TN, for plaintiff/appellant.
    W. Stephen Gardner, Heather R. Gunn, Memphis, TN, for defendants/appellees.
   OPINION

BEN H. CANTRELL, Presiding Judge, M.S.

In this defamation action, the appellant filed suit against Quebecor Printing (USA) Corporation, Graham McClean, the President and Chief Operating Officer of the corporation, Quebecor Printing Dickson, Incorporated, and Bill Mahoney, the General Manager of Quebecor Dickson, for alleged defamatory statements made by Mr. McClean at a company meeting and in a letter posted in the Dickson plant. In granting the appellee’s motion for summary judgment, the trial court found that the statements were not defamatory as a matter of law and that there was no publication of such statements under the law of defamation. For the reasons stated, we find the statements were not defamatory and affirm the judgment of the trial court.

I.

William J. Revis worked at the Dickson, Tennessee plant for Quebecor Printing. In 1994, he was one of several employees who helped organize an unsuccessful effort to elect a union at the Dickson plant. In 1995, Mr. Revis was involved in another effort to unionize the plant. During the campaign, McClean organized company meetings with various employees to discuss the issues regarding unionization of the plant and plant productivity. Some of these meetings were one-on-one with employees and some were team meetings attended by large groups of employees. Pamela Brown, a Quebecor employee, testified that at a one-on-one meeting with McClean, McClean stated that there was no room at the plant for someone like Revis. In addition, Robert Brown, another Quebecor employee, testified that at one of the team meetings, McClean stated that there was no room in the plant for Revis’ attitude. Witnesses that attended other team meetings denied that any reference was made to the appellant.

On November 7, 1995, the National Labor Relations Board held the election. As the vote count progressed, it became clear to McClean that the union would lose. As he related the story later to several plant supervisors, McClean looked around the room and made eye contact with Revis. McClean described Revis’ facial expression as demeaning, insubordinate, and hostile. Later, McClean composed a letter and allegedly posted it in an area of the plant where it would likely be seen. The letter in relevant part states:

On Tuesday, November 7, 1995, at approximately 7:30 a.m. to 8:00 a.m., I was in the cafeteria observing the counting of the ballots in the NLRB election. I estimate that thirty to forty employees were present in the cafeteria at this time. I was standing toward the front of the group of employees on the left side of the room (facing the voting area). My attention primarily was focused on the vote count. At one point, I happened to glance around the room at the crowd. My thoughts were on the vote count, but I happened to catch the eye of Mr. Revis. He was staring intently at me with a stern, determined, and angry expression on his face. As soon as he saw that he had made eye contact with me, Mr. Revis proceeded to make an overt, dramatized, facial expression towards me. Mr. Revis made no attempt to hide his facial gesture from the other employees present.
The facial expression Mr. Revis made at me is difficult to describe in words. However, in an effort to communicate what this expression looked like to me, I would describe it as being of a menacing, threatening, denigrating, contemptuous and insubordinate nature. Knowing of Mr. Revis’ recent suspension for displaying a “temper” and making abusive and intimidating comments to others, his facial expression immediately caused me to feel concern for my safety, as well as the safety of the others in the room. Moreover, I felt insulted and offended by Mr. Revis’ conduct.

After the events described in the letter, the company fired Revis, but the NLRB ordered his reinstatement. Subsequently, he filed this action for defamation.

II.

Upon review of a grant of summary judgment, this Court must determine whether the requirements of Tenn. R. Civ. P. 56 have been satisfied. See Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.1997). As this inquiry involves purely a question of law, our review is de novo without a presumption of correctness. Robinson v.. Omer, 952 S.W.2d 423, 426 (Tenn.1997); McClung v. Delta Square Ltd. Partnership, 937 S.W.2d 891, 894 (Tenn.1996). Summary judgments are appropriate only where there is no genuine issue of material fact relevant to the claim or defense contained in the motion and the moving party is entitled to a judgment as a matter of law on the undisputed facts. See Tenn.R.Civ.P. 56.03; Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995). Courts reviewing summary judgments must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in the non-moving party’s favor. Omer, 952 S.W.2d at 426; Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.1993). In view of these standards, we turn now to the legal principles involved in this appeal.

III.

With respect to defamatory statements, this Court has previously held that

For a communication to be libelous, it must constitute a serious threat to the plaintiffs reputation. A libel does not occur simply because the subject of a publication finds the publication annoying, offensive or embarrassing. The words must reasonably be construable as holding the plaintiff up to public hatred, contempt or ridicule. They must carry with them an element “of disgrace.”

Stones River Motors, Inc. v. Mid-South Publishing Co., Inc., 651 S.W.2d 713, 719 (Tenn.Ct.App.1983) (citations omitted). In addition, “the damaging words must be factually false. If the words are true, or essentially true, they are not actionable even though the statement contains other inaccuracies which are not damaging.” Id. at 719.

Whether a communication is capable of conveying a defamatory meaning is a question of law. Pate v. Service Merchandise Co., Inc., 959 S.W.2d 569 (Tenn.Ct.App.1996). Review by the appellate court of the trial court’s determination is de novo. Bauer v. Murphy, 191 Wis.2d 517, 530 N.W.2d 1 (1995). Allegedly defamatory statements should be judged within the context in which they are made. Norse v. Henry Holt & Co., 991 F.2d 563 (9th Cir.1993). They should be read as a person of ordinary intelligence would understand them in light of the surrounding circumstances. Pate v. Service Merchandise Co., Inc., 959 S.W.2d 569 (Tenn.Ct.App.1996); McKethan v. Texas Farm Bureau, 996 F.2d 734 (5th Cir.1993).

Opinions are not automatically protected by the United States Constitution, Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990), but some states still hold that statements of opinion alone are not actionable. See 50 Am.Jur.2d Libel and Slander § 161. The Restatement (followed by the Supreme Court in Milkovich ) position is that an opinion may be actionable if the communicated opinion may reasonably be understood to imply the existence of undisclosed defamatory facts justifying the opinion. Restatement (2d) of Torts § 566.

Using these principles, we will examine the statements made by McClean. First, he allegedly told Revis’ fellow employees (in the presence of supervisory employees) that there was no room at the plant for someone like Revis or that there was no room at the plant for Revis’ attitude. In our opinion, in the context of a union election at a manufacturing plant these words are not actionable. They consist entirely of McClean’s opinion about Revis’ attitude, and they do not hold Revis up to public hatred, contempt, or ridicule. The other employees would probably applaud Revis’ anti-management attitude and rejoice that it had had the desired effect.

Second, McClean allegedly posted the letter stating that Revis had made a menacing, threatening, denigrating, contemptuous, and insubordinate face at him, causing him to fear for his safety and the safety of others. The basis for his concern was Revis’ recent suspension for having a temper and making abusive and intimidating comments to others. The description of the look on Revis’ face is nothing more than McClean’s opinion, and the effect it produced on him is an opinion based on the disclosed non-defamatory fact that Re-vis had been suspended for threatening and cursing another employee. We hold that as a matter of law the statements in the letter did not seriously threaten Revis’ reputation or hold him up to public hatred, contempt, or ridicule.

As we find the statements at issue were not defamatory, we find no need to address the issue of the publication of such statements.

The judgment of the court below is affirmed and the cause remanded to the Circuit Court of Dickson County for any further proceedings necessary. Tax the costs on appeal to the appellant, William J. Revis.

KOCH and CAIN, JJ., concur.


author: SUSANO, J.

text:
    Francis Ione LETHCOE, as surviving spouse and next of kin of Vernon Lethcoe, deceased, for the benefit of herself and Justin Charles Lethcoe, Christopher Vernon Lethcoe, Candice Misty Lethcoe, Jimmy Joe Bear Lethcoe, the surviving children of Vernon Lethcoe, Plaintiff-Appellant, v. Ricky Ray HOLDEN and wife, Sheila Martin Holden, and Pam Knox and husband, Van Knox, Defendants-Apellees.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    March 15, 2000.
    Application for Permission to Appeal Denied by Supreme Court Oct. 16, 2000.

      Robert E. Pryor, Pryor, Flynn, Priest & Harber, Knoxville, TN, for appellants.
    Gary M. Prince, O’Neil, Parker & Williamson, Knoxville, TN, for appellees.
   OPINION

SUSANO, J.

This is a wrongful death case. Francis lone Lethcoe sued the owners of the property on which her late husband, Vernon Lethcoe (“the deceased”), was working when he was injured while engaged in the business of his employer, Bain and Holden Tire Company, Inc. (“the employer”). The trial court held that the owners of the property were not legally responsible for the injuries and resulting death of the deceased. It granted their motion for summary judgment. The plaintiff appeals, claiming that the general rule of a landlord’s non-liability does not apply to the circumstances of this case.

The material facts of this case are not in dispute. The defendants are the co-owners of the subject property. On September 1, 1991, they leased the premises to the employer for use as a tire buffing and recapping facility. In the lease, the employer agreed that the premises were in a “good, clean, and safe condition and repair” and agreed to maintain the property in such a condition.

The defendant, Ricky Ray Holden, in his capacity as president of the employer, is primarily responsible for the day-to-day operations of the employer. He signed the lease as one of the co-owners and also on behalf of the employer. Two of the other defendants are members of the employer’s board of directors. Mr. Holden is on the premises on a daily basis, while the other three defendants are present on the property from time to time.

Dust and rubber shavings, as by-products of the employer’s business, are removed to the outside of the building through the use of a specially-designed exhaust system built into the structure of the building. This process often results in the accumulation of rubber dust and shavings on the roof. Mr. Holden arranges for the removal of the accumulated dust and rubber shavings from the roof once a year, usually in the summer months. He utilizes non-company labor and a non-company dump truck. On January 6, 1995, the roof collapsed from the accumulated material, and the deceased died as a result of injuries received in the accident. Full worker’s compensation benefits were paid to the deceased’s estate by the employer or its carrier.

On January 5, 1996, the plaintiff filed this wrongful death action against the defendants as co-owners of the property. The defendants filed a motion for summary judgment on September 2, 1997, relying on the rule that a landlord is generally not liable to a tenant or third party for harm caused by a dangerous condition on the leased premises. The trial court granted the motion and later denied the plaintiffs motion to alter or amend the judgment. The plaintiff now appeals, arguing that, under the facts of this case, certain exceptions to the general rule of a landlord’s non-liability are applicable.

Since the facts in this case are not in dispute, our only task is to decide whether those facts show that the defendants are entitled to summary judgment. See Rule 56.04, TenmR.Civ.P.; Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn.1993).

Generally, a landlord is not liable to a tenant or a third party for harm caused by a dangerous condition on the leased premises. Hester v. Hubbuch, 26 Tenn.App. 246, 170 S.W.2d 922, 926 (1942); Roberts v. Tennessee Wesleyan College, 60 Tenn.App. 624, 450 S.W.2d 21, 24 (1969); Whitsett v. McCort, 1990 WL 123943, *4 (Tenn.Ct.App. W.S., filed August 28, 1990).

The general rule of a landlord’s non-liability is subject to several exceptions. One exception applies if the following facts are shown: (1) the dangerous condition was in existence at the time the lease was executed; (2) the landlord knew or should have known of the dangerous condition; and (3) the tenant did not know of the condition and could not have learned about it through the exercise of reasonable care. Maxwell v. Davco Corp. of Tennessee, 776 S.W.2d 528, 531-32 (Tenn.Ct.App.1989). As a natural corollary of this exception, when a landlord and a tenant have co-extensive knowledge of the dangerous condition, the landlord is not liable to the tenant, or the tenant’s employees, for injuries sustained as a result of the dangerous condition. See id. at 532.

With respect to this exception, the plaintiff argues that “there is no question but that the dangerous condition pre-existed the Lease and that the [owners] should have known of such dangerous and unsafe condition.” Even assuming arguendo that a dangerous condition pre-dated the lease and that the owners knew about it, the plaintiffs argument ignores the third requirement for application of the exception, ie., that the tenant did not have actual or constructive notice of the dangerous condition. Under the facts of the instant case, it is clear that the knowledge of the employer was equal to, if not greater than, the knowledge of the property owners. Thus, if the property owners had actual or constructive knowledge of a dangerous condition on the property, so too did the employer, ie., the tenant, and this exception to the general rule would not apply. Hence, we find that the undisputed facts do not implicate the subject exception.

In a related argument, the plaintiff asserts that the general rule does not apply and that the owners are liable because the property was unsafe for the purpose for which it was leased. She relies on the following facts to support this argument: (1) the building was specially designed to serve as a tire and recapping store; (2) the building included a special exhaust system designed to remove rubber dust and shavings during the recapping process; (3) the rubber dust and shavings often created excessive weight on the roof of the building as they accumulated there; (4) the premises were open to the public; and (5) the owners of the property either knew or should have known all of the foregoing facts. The plaintiff argues that, because the building was unfit for its intended use — a tire and recapping store open to the public — the owners owed a heightened duty to the employees of the tenant. This duty was breached, the plaintiff argues, when the roof collapsed, killing the deceased.

This argument is based on the plaintiffs reading of Stenberg v. Wilcox, 96 Tenn. 163, 33 S.W. 917 (1896). She cites that case in support of the following statement in her brief: “[i]t is well-settled that when an owner of property leases the property in a condition which would make it unsafe for the purpose for which it is being leased because of a dangerous condition, the owner/lessor will be hable.” We have reviewed Stenberg and find the plaintiffs interpretation of the case to be flawed.

It is true that Stenberg contains the following language: “If the landlord lets the premises for a purpose which he knows (or ought to know) it to be unfit for, knowing that strangers will be invited there, it has been held that he is liable to them.” Id. at 917. But this statement is only a partial articulation of the rule applied by the Stenberg court. The rule, in its entirety, as stated by the court in Stenberg, is as follows:

if plaintiffs can recover at all in this case, it must be upon the ground that the landlord leased premises in a dangerous and unsafe condition, when he knew, or might, by the exercise of reasonable diligence and care, have known, of such unsafe condition, and upon the further ground that plaintiffs did not know of such unsafe condition, and could not have known of it by the exercise of reasonable diligence and care....

Id. at 917. We do not believe that the rule announced in Stenberg is materially different from the principle set forth in the Maxwell case, 776 S.W.2d at 531-32, i.e., the landlord is only liable if (1) the dangerous condition was in existence at the time the lease was executed; (2) the landlord knew or should have known of the dangerous condition; and (3) the tenant did not know of the dangerous condition and could not have discovered it through the exercise of reasonable care. Therefore, we hold that this exception does not apply to the instant case because, as previously stated, the employer’s knowledge regarding the dangerous condition was at least equal to that of the owners.

Another exception to the general rule is implicated where the landlord has negligently repaired the premises, regardless of whether the landlord was under a contractual duty to make repairs or whether it simply undertook to make the repairs gratuitously. Smith v. Tucker, 151 Tenn. 347, 270 S.W. 66, 70 (1925). The plaintiff argues that this exception applies because Mr. Holden periodically arranged for the removal of the tire shavings from the roof using neither employees nor personal property of the employer. The plaintiff contends that the removal of tire shavings amounted to a “repair” and that it was done negligently, apparently because it was not done early enough. The plaintiff argues that she must be allowed to conduct discovery to determine whether this negligent repair was done by Mr. Holden in his capacity as president of the employer or in his capacity as one of the co-owners.

We are of the opinion that this exception also does not apply. The fact that Mr. Holden used neither company employees nor company assets to remove the tire shavings from the roof is irrelevant to the question of the capacity pursuant to which he made the necessary arrangements to remove material from the roof. Under the terms of the lease, the employer was responsible for repairs. It is not significant that Mr. Holden employed outside help to remove the material from the roof. This does not indicate that the property owners, rather than the employer, were performing the subject task. We do not think that it is a reasonable inference, based on the facts before us, that Mr. Holden arranged for the removal of tire shavings from the roof in his capacity as one of the owners. Mr. Holden is the president of the employer. It is reasonable to assume that he was acting in this capacity. As previously noted, under the lease, repairs were the responsibility of the employer.

The plaintiff had ample opportunity to conduct discovery in this case. The complaint was filed on January 5, 1996. The motion to dismiss was not filed until September 2, 1997. The plaintiff then had until May 27,1998, the date of the hearing on the motion, to conduct discovery. Therefore, the plaintiff had more than sufficient time to do the necessary discovery.

The plaintiff also asserts that the general rule does not apply and that the owners are liable because, so the argument goes, they retained control of the property. In support of this argument, she again points to the fact that Mr. Holden periodically arranged for the removal of the accumulated material from the roof using resources other than those of the employer. Additionally, she notes that Mr. Holden is both an owner of the property and the president of the employer, that two of the other defendants are members of the employer’s board of directors, and that, in addition to Mr. Holden being on the property almost daily, the other three defendants were also on the property from time to time.

It is true that, because the general rule of non-liability of a landlord is premised on the assumption that the landlord is not in control of the property, a landlord may be held liable where the landlord in fact retains control of the property. Cf. Whitsett v. McCort, 1990 WL 123943, *4 (Tenn.Ct.App. W.S., filed August 28, 1990). However, the owners here did not retain control of the subject property. As stated previously, the fact that non-company resources were utilized to remove the material from the roof does not indicate that Mr. Holden undertook to control the condition on the roof in his capacity as one of the owners. It is more logical and reasonable to find that Mr. Holden was acting for the entity that was responsible for repairs under the lease, and of which he was the president, ie., the. employer.

The plaintiff also asserts that the general rule does not apply because the owners had a continuing duty to ensure the structural integrity of the roof. There is authority for the proposition that, absent a contractual provision to the contrary, a landlord has an obligation to make structural changes and improvements “which are permanent and extensive and add materially to the value of the property.” Taylor v. Gunn, 190 Tenn. 45, 227 S.W.2d 52, 55 (Tenn.1950). However, the plaintiffs reliance on this rule as justification for holding the defendants liable under the circumstances of this case is misplaced. The assumption underlying this argument is that the dangerous condition here was the roof itself. We do not think this is a fair characterization. Rather, the dangerous condition was the accumulation of dust and tire shavings on the roof that, left unattended to over time, caused the roof to collapse. Thus, the employer, and not the owners, was responsible for the creation of the dangerous condition. Therefore, this exception does not apply to the facts of this case.

Finally, the plaintiff argues that the general rule does not apply because of the inherently dangerous activity that was being conducted on the property. In support of this position, Lethcoe relies on Hutchison v. Teeter, 687 S.W.2d 286 (Tenn.1985) and International Harvester Co. v. Sartain, 32 Tenn.App. 425, 222 S.W.2d 854 (1948) for the proposition that, where a landowner conducts an inherently dangerous activity, the landowner has a non-delegable duty to “exercise caution adequate to the peril involved, as for example, in giving notice of its dangerous character.” Sartain, 222 S.W.2d at 867; see also Hutchison, 687 S.W.2d at 288 (“the general principles governing the additional responsibility of a landowner to persons lawfully on the premises, such as employees of subcontractors, where the landowner conducts an inherently dangerous activity, are correctly set out in [SaHain]”). This is an accurate statement of the law; but it is not applicable to the facts of the instant case. Assuming arguendo, that a tire recapping facility is an inherently dangerous activity — a premise that is certainly not shown by the facts of this case — the owners leased the property to the employer; they did not operate the facility. It was the employer that occupied the premises and operated the facility.

For the foregoing reasons, we find that there is no genuine issue of material fact and that the defendants are entitled to a judgment as a matter of law. Accordingly, the trial court’s grant of summary judgment to the defendants is affirmed, and this case is remanded for collection of costs, pursuant to applicable law. Costs on appeal are taxed to the appellant, Leth-coe.

FRANKS and SWINEY, JJ„ concur.

      . In Whitsett, a case between a plaintiff-subcontractor and defendant-landowners, we said
      the duty of the landowner concerning defects on the property may be and is delega-ble when the possession and control of the property is passed to another such as a lessee. Since the rationale for the rule imposing liability on the possessor of property is based upon the superior knowledge and control on the part of the possessor, it necessarily follows that when the control of the premises is turned over to an independent contractor for the performance of the construction contract, the owner-contractee is not liable for the acts of negligence of the contractor or his employees and subcontractors.

        Id. at *5 (citation omitted).