In August, 1986, a Tennessee Court of Appeals affirmed a Morgan County Circuit Court’s dismissal and summary judgment in a highway case brought against the county’s chief administrative officer and several members of the county road commission, as well as three state road engineers. The plaintiff was a driver who was injured when his automobile struck a ditch that had been cut across a rural road.

Donald Adkins filed a personal injury claim against eight individuals, each of whom had responsibility, in some capacity, in Morgan County, Tennessee. He claimed each was responsible individually and as officers or employees of the county and state for the injuries he and his wife received when their vehicle struck the ditch.

Judge Conrad Troutman, Jr., Morgan County Circuit Court, dismissed the claims against all eight. Upon hearing Adkins’ appeal, the Court of Appeals upheld the dismissal against six of the individuals, but granted Adkins the right to a new trial against two of the eight individuals.

Adkins’ original complaint alleged that during a road construction project undertaken by Morgan County, under contract with the state, “a ditch or trench was cut completely across the public roadway by the defendants, jointly and severally” to install a drainage pipe from one side of the road to the other. He further alleged that the trench was only partially filled, “leaving a dropoff from the pavement two feet wide and from six to twelve inches deep,” and that the trench was left in this condition for several weeks.

Adkins also charged the Morgan County Road Commission with failing to provide warning signs and barricades at the ditch. He also charged that the county undertook the project when it did not have the proper tamping equipment necessary to complete the project.

He also claimed that the road commission had agreed, in the terms of the contract, to assume all responsibility for injuries resulting from any action of the county in the conduct of the work.

J.D. McCartt, who was the chief administrative officer for Morgan County, and a county judge, as well as de facto chairman of the road commission, was charged with negligence for serving in a capacity for which he had no qualifications, training, or experience.

Russell Barnette, who was supervisor of the Morgan County Road Commission, was alleged to have accepted his position even though he knew that he did not have adequate qualifications or experience for the position. Barnette was charged, in the original suit, with permitting the ditch to be cut without the necessary tamping equipment, as well as creating a condition that was dangerous and left without warnings.

Three county road commissioners were alleged to have been negligent in failing to purchase proper tamping equipment, in hiring unqualified supervisors, and in allowing McCartt to function as chief administrative officer of the road commission when he did not have the proper qualifications.

Roy Newberry, Floyd King, and Carl Robbins were named in the suit because they were regional rural roads engineers for the Tennessee DOT. The suit alleged that they were negligent in failing to properly train, supervise, and instruct the safe and proper method of installing cross drains; they were also allegedly negligent in violating sound construction practice.

The complaints against McCartt and the three road commissioners were dismissed because no one of them was personally responsible for the injuries Adkins and his wife received. The failure to purchase the proper equipment and provide warnings was considered an act of “nonfeasance,” not “malfeasance,” in the eyes of the circuit court. The Appeals Court upheld these dismissals. In regard to the failure to hire qualified individuals, the Appeals Court found that this failure does not violate any statute nor common law, and thus the dismissal of these allegations could be upheld.

The suits against two of the DOT engineers were dismissed because one, Roy Newberry, died, and the other, Floyd King, was granted summary judgment. King established that he was not responsible for the planning or execution of the road project.

The Appeals Court ruled, however, that the dismissal of the suits against Russell Barnette, county road supervisor, and Carl Robbins, DOT engineer, was in error. The Appeals Court found that Adkins had a right to a new trial against Barnette because his defense that the project was a state project under state supervision was not tested beyond a reasonable doubt in the trial. As for Robbins, Adkins can continue his suit against him because Robbins defended himself as immune as an “officer of the state.” The Appeals Court found that Robbins was not an officer of the state, but a contract employee and therefore not shielded from negligence as an individual.

(Adkins v. McCartt 723 S.W.2d 627 Tenn. App.1986)

Harry Wiersman, Jr. of Knoxville (615-524-7496) represented Donald Adkins in this case.