June 6, 2003
Re: Liability questions
This letter is to briefly recapitulate the information I gave you in our phone conversation yesterday. Your first question was whether your City should maintain a drainage easement on private property. The answer is no because under the public purpose doctrine public funds may be spent only for public purposes and not primarily for private benefit. Under Article II, § 29 of the Tennessee Constitution, taxes may be levied by a municipality only for corporation purposes. From this restriction on the levy of taxes has grown the public purpose doctrine because the courts reasoned that since taxes can be levied only for corporation or public purposes, expenditures can be made only for those same purposes. See Shelby Co. v. Exposition Co., 96 Tenn. 653, 36 S.W. 696 (1896) and City of Chattanooga v. Harris, 223 Tenn. 51, 442 S.W.2d 602 (1969). From the information you provided, it appears that the expenditure for the easement would be of primary benefit to a private person and that any benefits to the public would be remote and minimal. Therefore, the expenditure would probably be illegal.
Your second question is whether the issuance of a building permit somehow obligates the city to the applicant relative to liability under the Tennessee Governmental Tort Liability Act. The issuance of the permit does not waive any immunity the city has and is not somehow an admission of liability. The city is obligated to issue building permits when an applicant meets the requirements for issuance. T.C.A. Section 29-20-205(3) extends immunity to the city for issuance or failure to issue permits. Therefore no liability should accrue to the city caused solely by the issuance of the permit.
Your third question is about the statute of limitations under the TGTLA. T.C.A. § 29-20-305(b) provides that “The action must be commenced within twelve (12) months after the cause of action arises.” Since the TGTLA is in derogation of the common law, it must be strictly construed and actions must be brought in strict compliance with its provisions. Lockhart v. Jackson-Madison Co. General Hospital, 793 S.W.2d 943 (Tenn. Ct. App. 1990). Although the discovery rule applies to actions under the TGTLA, Sutton v. Barnes, 78 S.W.3d 908 (Tenn. Ct. App. 2002), the savings statute cannot be used to extend the time during which a suit may be brought under the Act. Rael v. Montgomery County, 769 S.W.2d 211 (Tenn. Ct. App. 1988); Williams v. Memphis Light, Gas & Water Division, 772 S.W.2d 522 (Tenn. Ct. App. 1988); Nance v. City of Knoxville, 883 S.W.2d 629 (Tenn. Ct. App. 1994). Therefore, in the case you posit, the statute of limitations should bar a suit.
I hope this is satisfactory and helpful. If you have further questions, please contact us.