IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

AT NASHVILLE

 

 

 

JAMES W. SMOAK,                                    )

PAMELA Z. SMOAK, and                         )

BRANDON HAYDEN,                                )

                                                                        )

            Plaintiffs,                                           )

                                                                        )

v.                                                                     )  No. ________

                                                                        )  JURY DEMAND

ERIC HALL, MEAD MCWHORTER,        )

BRUCE LAMB, ANGELA CHESEBRO, )

LAURIE GRAHAM,  ROBERT E.             )

TERRY, CITY OF COOKEVILLE,             )

DAVID BUSH, JEFF PHANN, TIM           )

MCHOOD, BRIAN BROCK, SHANON    )

PICKARD, LIEUTENANT JERRY           )

ANDREWS,                                                  )          

                                                                        )

            Defendants.                                     )

 

 

 

COMPLAINT

 

 

Come the Plaintiffs and for cause of action would state as follows:

 

 

I.  INTRODUCTION

This action arises under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution; under federal law, specifically, 42 U.S.C. §§1983 and 1988; under the Tennessee governmental tort liability statutes; under Tenn. Code Ann. §29-20-101, et seq., and under Tennessee common law for intentional and/or negligent infliction of emotional distress, conversion, loss of companionship, negligence, negligent supervision, gross negligence, assault, false imprisonment, false arrest, and civil conspiracy.  

While the individual Defendants were acting in the scope of their employment and under color of state law, they made an unlawful stop of Plaintiffs that resulted in unreasonable search and seizure and the excessive use of force against the Plaintiffs.  The Defendants’ actions caused injury to the Plaintiffs and the destruction of their personal property.

 Action is also brought against the City of Cookeville for its failure to properly train and supervise the individual Defendants in the proper use of force and techniques used to secure the search of a vehicle, proper dispatch policy, and its establishment of policies, procedures, practices, and customs regarding arrests that result in the excessive use of force.

II.  JURISDICTION AND VENUE

1.         This court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§1331, 1332, 1343, and 1367, and venue is properly set in the United States District Court for the Middle District of Tennessee pursuant to 28 U.S.C. §1391.

2.         The causes of action alleged herein arise from factual allegations occurring in this judicial district.

3.         On information and belief, it is alleged that each of the named Defendants resides in this judicial district, with at least one defendant residing within the Nashville division.

4.         Plaintiffs reside outside the state of Tennessee.

            5.         The amount in controversy is in excess of $75,000.00.

 

III.  PARTIES

 

A.  Plaintiffs

 

6.         The Plaintiff, JAMES W. SMOAK, is a citizen and resident of Saluda, North Carolina.

7.         The Plaintiff, PAMELA Z. SMOAK, individually, and as parental guardian of Brandon Hayden, a minor, is a resident of Saluda, North Carolina.

8.         The Plaintiff, BRANDON HAYDEN, who was a minor at the time of the incidents alleged herein, is a citizen and resident of Saluda, North Carolina and the son of Pamela Z. Smoak. 

B.  Cookeville Defendants

9.         The Defendant, ERIC HALL, is a citizen and resident of Putnam County, Tennessee, and was at all times material to the allegations in this Complaint, acting in his capacity as a Police Officer employed by the City of Cookeville, Tennessee and was acting under color of state law.

10.       The Defendant, MEAD MCWHORTER, is a citizen and resident of Putnam County, Tennessee, and was at all times material to the allegations in this Complaint, acting in his capacity as a Police Officer employed by the City of Cookeville, Tennessee and was acting under color of state law.

11.       The Defendant, BRUCE LAMB, is a citizen and resident of Putnam County, Tennessee, and was at all times material to the allegations in this Complaint, acting in his capacity as a Police Officer employed by the City of Cookeville, Tennessee and was acting under color of state law.

12.       The Defendant, ANGELA CHESEBRO, is a citizen and resident of Putnam County, Tennessee, and was at all times material to the allegations in this Complaint, acting in her capacity as a Dispatcher employed by the City of Cookeville, Tennessee and was acting under color of state law.

13.       The Defendant, LAURIE GRAHAM, is a citizen and resident of Putnam County, Tennessee, and was at all times material to the allegations in this Complaint, acting in her capacity as a Dispatcher employed by the City of Cookeville, Tennessee and was acting under color of state law.

14.       The Defendant, ROBERT E. TERRY, is a citizen and resident of Putnam County, Tennessee, and was at all times material to the allegations in this Complaint, employed as the Chief of Police by the Cookeville Police Department in Putnam County, Tennessee, and is responsible for the supervision and training of the Defendants, Hall, McWhorter, Lamb, Chesebro, and Graham.  Defendant Terry, as the Chief of the Cookeville Police Department is further, responsible for making and/or implementing policies and practices used by law enforcement officers employed by the City of Cookeville, Tennessee regarding arrests and the use of force.

15.       The Defendant, CITY OF COOKEVILLE, is a political subdivision of the State of Tennessee, for which Defendants Hall, McWhorter, and Lamb serve as police officers, Chesebro and Graham serve as dispatchers, and Terry serves as Chief of Police.  City of Cookeville is the political subdivision of the State of Tennessee responsible for the training and supervision of Defendants Terry, Hall, McWhorter, Lamb, Chesebro, and Graham.  City of Cookeville has established or delegated to Defendant Terry the responsibility for establishing and implementing policies, practices, procedures, and customs used by law enforcement officers employed by City of Cookeville regarding arrests and the use of force.

C.        Tennessee Highway Patrol Defendants

16.       The Defendant, DAVID BUSH, is a citizen and resident of Putnam County, Tennessee, and was at all times material to the allegations in this Complaint, acting in his capacity as a State Trooper employed by the State of Tennessee and was acting under color of state law.

17.       The Defendant, JEFF PHANN, is a citizen and resident of Putnam County, Tennessee, and was at all times material to the allegations in this Complaint, acting in his capacity as a State Trooper employed by the State of Tennessee and was acting under color of state law.

18.       The Defendant, TIM MCHOOD, is a citizen and resident of Putnam County, Tennessee, and was at all times material to the allegations in this Complaint, acting in his capacity as a Dispatch Operator employed by the State of Tennessee and was acting under color of state law.

19.       The Defendant, Brian Brock, is a citizen and resident of Putnam County, Tennessee, and was at all times material to the allegations in this Complaint, acting in his capacity as a Dispatch Operator employed by the State of Tennessee and was acting under color of state law.

20.       The Defendant, SHANON PICKARD, is a citizen and resident of Cheatham County, Tennessee, and was at all times material to the allegations in this Complaint, acting in his capacity as a Dispatch Operator employed by the State of Tennessee and was acting under color of state law.

21.       The Defendant, Lieutenant Jerry Andrews, is believed to be a citizen and resident of Putnam County, Tennessee, and was at all times material to the allegations in this Complaint, acting in his capacity as a Lieutenant State Trooper and Shift Commander for the Tennessee Highway Patrol employed by the State of Tennessee.  Defendant Andrews was the supervisor of Defendants Bush, Phann, McHood, and Brock, and was, as the lieutenant in command of the shift, responsible for the training and supervision of Defendants Bush, Phann, McHood, and Brock.  Defendant Andrews was also responsible for making and/or implementing policies and practices used by state troopers and state dispatchers employed by the State of Tennessee regarding stops, arrests, and the use of force.

IV.  FACTS

            22.       On January 1, 2003, Plaintiffs James Smoak, Pamela Smoak, and Brandon Hayden (collectively “Smoaks”) were returning from a vacation in Nashville, Tennessee to their home in Saluda, North Carolina.  Mr. Smoak was driving a green 1994 Mercury Sable station wagon eastbound on Interstate 40 toward the Smoaks’ home.

            23.       On January 1, 2003, as the Smoaks were driving through Putnam County, Tennessee, the Tennessee Highway Patrol, which was subsequently joined by the Cookeville Police Department, stopped them using blue lights and sirens.  Mr. Smoak was not speeding and had not violated any traffic laws.

            24.       While waiting for instructions from the THP officers, Mr. Smoak realized that he had lost his wallet, which contained a few hundred dollars in cash. 

            25.       At that time, James Smoak was directed through a loud speaker by the THP officers to drop the automobile keys outside the driver’s side window and to exit the car with his hands held above his head.  Mr. Smoak obeyed all of the instructions of the THP officers, and in response to the officers, got down on his knees on the side of Interstate 40 behind his vehicle with his hands locked behind his head.

            26.       Both Pamela Smoak and her minor son, Brandon, followed the directions of the THP officers and also exited the vehicle and got down on their knees on the side of Interstate 40 on the passenger side of their vehicle with their hands locked behind their backs.

            27.       Officers from the Cookeville Police Department pointed shotguns at the Smoak family while the THP officers handcuffed Mr. and Mrs. Smoak and Brandon.

28.       From the moment the officers first approached the Smoaks, both Mr. and Mrs. Smoak begged the officers to shut the car doors so their dogs would not get out.  The Smoaks were unarmed and their automobile contained no weapons or any other type of contraband.

29.       THP Officer Bush told Mr. Smoak that they were being stopped on suspicion of a possible armed robbery, at which point, Mr. and Mrs. Smoak explained to the officers that they were from North Carolina and only vacationing in Nashville.  They further stated that they had not committed an armed robbery.

30.       There were no reported robberies in the area to the knowledge of Cookeville Police Department officers or dispatchers.  Additionally, there were no reported robberies in the area to the knowledge of the THP dispatchers/operators or officers.  There was no probable cause for the officers to make a felony stop of the Smoaks.

31.       The Smoaks repeatedly asked the officers present to close the doors to the car because their dogs were inside the car.  This is confirmed by the police video, which clearly reveals Mr. Smoak asking at least twice and Mrs. Smoak asking at least once for the car doors to be closed.  Additionally, it is confirmed by the police video that Mrs. Smoak told the officers that the dogs were not mean and would not harm the officers.

32.       Even after one THP officer looked into the car to make sure there were no other occupants in the car and that it was clear inside, the officers at the scene chose to leave the doors to the vehicle open, resulting in Patton, one of the dogs, eventually exiting the vehicle.

33.       The Smoaks’ family dog, Patton, jumped out of the automobile and began to run, tail wagging, in a circle around the scene in an effort to reach his master, Mr. Smoak.  At this point, Officer Hall followed the dog with his shotgun.  Mr. Smoak rose up several inches and hysterically pleaded with the officers not to kill his dog, only to be slammed down on his knees to the pavement by two THP officers, seriously injuring his knee.

34.       While only a few feet away from the Smoaks, Officer Hall shot Patton in the head and killed him. 

35.       Immediately after shooting the dog, Hall then turned and pointed the shotgun directly at Mrs. Smoak as she remained handcuffed and kneeling on the side of the interstate, shocked and crying and in fear of being shot herself.

36.       Only after the shooting of Patton, did a THP officer close the doors to the automobile.  At all times other than for the shooting of the dog, Officers Hall and McWhorter had their shotguns pointed at the Smoaks.

37.       On information and belief, the officers were aware that after paying for gas earlier, Mr. Smoak had somehow lost his wallet, with the wallet and its contents ending up on the side of Interstate 40. 

38.       At the time the officers instigated the stop of the Smoaks, they acted on a telephone tip from an unknown and unreliable informant who called into the Tennessee Highway Patrol stating that a car had been speeding and that cash was on the interstate.  The unknown and unreliable informant gave the location of the cash and a description of the speeding car.  She was not a previous informant whose identity and reliability were known to the Tennessee Highway Patrol or the Cookeville Police Department.  She never suggested that the two incidents - - speeding car and cash on the highway - - were related, nor did she claim that a robbery had taken place. 

39.       The THP dispatchers, the City of Cookeville dispatchers, Defendants Chesebro and Graham, and Defendants Hood, Brock, and Pickard, negligently misinterpreted information from an unknown and unreliable informant, and set in motion the series of events that resulted in the violations of the Plaintiffs’ civil rights.

40.       At the time of the above-mentioned search and during the time of the subsequent detention of the Smoaks on the side of the interstate, none of the Defendants had in their possession any warrant issued by a judge, court, or magistrate authorizing a search of the Smoaks’ automobile or the arrest of any of the Smoaks.  No warrant had in fact been issued by any court, judge, or magistrate for such search and arrest.

41.       At no time during the above-mentioned period of detention were the Plaintiffs charged with any crime.  They were ultimately released without any charge being made, and no charge has subsequently been made.

42.       Defendants Hall, McWhorter and Lamb had no adequate training regarding the arrest, investigatory stop, or reasonable use of force. 

43.       Defendants Terry and the City of Cookeville were aware or should have been aware that the presence of pets and/or animals at crime scenes requires special procedures, policies, and customs to be used so as to not unnecessarily harm them, or members of the public.  The failure to promulgate and implement such procedures, policies, or customs caused the perpetuation of procedures, policies or customs leading directly to the seizure of the Smoaks’ personal property and the use of excessive and unreasonable force against the Smoaks and their pet, Patton.

44.       Each of the Defendants, individually, and in concert with the others, acted under color of law in his/their official capacity, to deprive Plaintiffs of their rights to freedom from illegal searches and seizure of their persons, papers, and effects and their rights to freedom from unlawful arrest, detention, and imprisonment.  All of these rights are secured to Plaintiffs by the Fourth and Fourteenth Amendments to the Constitution of the United States and by 42 U.S.C.A. §§ 1983 and 1988.

45.       The Defendants, Terry and the City of Cookeville, failed to adequately supervise the Defendants, Hall, McWhorter, Lamb, Chesebro, and Graham.

46.       At the time of the incidents alleged herein and before, Plaintiffs were emotionally and physically healthy, active, and fully capable of engaging in normal day-to-day activities.  Since the time of the unprovoked killing of their pet, Patton, their false arrest and detention, and the pointing of weapons at them, the Plaintiffs’ ability to perform and enjoy their usual activities, including family and work-related activities, has been impaired.  In addition, the Plaintiffs have suffered severe emotional distress and mental anguish affecting their psychological well-being.  Further, Plaintiff James Smoak has suffered physical injury to his knee requiring surgery due to the unreasonable and unnecessary force thrust upon his person by officers at the scene.

47.       As a direct and proximate result of the intentional and/or negligent acts of Defendants, Plaintiffs sustained severe mental and physical pain and suffering and injury in an amount that will be established at trial.

48.       As a further direct and proximate result of the intentional and/or negligent acts of the Defendants, the Defendants destroyed the Plaintiffs’ personalty, to wit, Patton, a 1½-year-old male bull terrier/bulldog mix, causing them to lose Patton’s substantial intrinsic economic value and his companionship.

49.       Plaintiffs are entitled to compensation for the constitutional harms that both the Cookeville and Tennessee Highway Patrol Defendants inflicted upon them, including personal injury, loss of liberty, and loss of property.

50.       Plaintiffs are entitled to compensation pursuant to Tenn. Code Ann. §29-20-101, et seq. and the Tennessee Governmental Tort Liability Act (“TGTLA”) for harms inflicted upon them by the Cookeville Defendants.

 

V.        CAUSES OF ACTION

 

COUNT I

 

Violation of Civil Rights Pursuant to Title 42 U.S.C. §1983

(General Allegations)

            51.       Plaintiffs reallege and incorporate herein by reference the allegations set forth in paragraphs 1-50 of this Complaint.

52.       In committing the acts complained of herein, Defendants acted under color of state law to deprive Plaintiffs of certain constitutionally protected rights under the Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States including, but not limited to:  a) the right to be free from unreasonable searches and seizures; b) the right not to be deprived of liberty without due process of law; c) the right not to be deprived of property without due process of law; d) the right to be free from excessive use of force by persons acting under color of state law; e) the right to be free from false arrest; and f) the right to just compensation for taking of property.

53.       In violating Plaintiffs’ rights as set forth above and other rights that will be proven at trial, Defendants acted under color of state law and conducted an unauthorized, warrantless illegal stop, search, and seizure of Plaintiffs.  The illegal and warrantless stop set into motion the chain of events that led to an unauthorized and warrantless illegal search and seizure and the use of excessive force by Defendants, in violation of Plaintiffs’ rights under the Fourth, Fifth and Fourteenth Amendments to the Constitution of the United States.

54.       As a direct and proximate result of the violation of their constitutional rights by the Defendants, Plaintiffs suffered general and special damages as alleged in this Complaint and are entitled to relief under 42 U.S.C §1983.

55.       The conduct of Defendants was willful, malicious, oppressive and/or reckless, and was of such a nature that punitive damages should be imposed in an amount commensurate with the wrongful acts alleged herein.

COUNT II

Violation of Civil Rights Pursuant to Title 42 U.S.C. §1983

(Failure to Implement Appropriate Policies, Customs and Practices)

 

56.       Plaintiffs reallege and incorporate herein by reference the allegations set forth in paragraphs 1-50 of this Complaint.

57.       Defendant Robert E. Terry, in his capacity as Chief of Police of the Cookeville Police Department in Putnam County, Tennessee, and the Defendant, City of Cookeville, implicitly or explicitly adopted and implemented careless and reckless policies, customs, or practices, that included, among other things, of allowing employees of the Cookeville Police Department to confront canines without any reasonable animal behavior training and in such a way as to cause the destruction of citizens’ canine pets without lawful justification. 

58.       Defendant Robert E. Terry, in his capacity as Chief of Police of the Cookeville Police Department in Putnam County, Tennessee, and the Defendant, City of Cookeville, implicitly or explicitly adopted and implemented a careless and reckless policy, custom, or practice of allowing employees of the Cookeville Police Department to confront canines by use of excessive lethal force where less severe alternatives existed.

59.       The failure of the Chief of Police, Robert E. Terry, and the City of Cookeville to adequately train and supervise the Defendants Hall, McWhorter and Lamb amounts to deliberate indifference to the rights of the Smoaks to be free from excessive force and unreasonable seizures under the Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States. 

60.       The failure of the Chief of Police, Robert E. Terry, and the City of Cookeville to adequately train and supervise Defendants Chesebro and Graham amounts to deliberate indifference to the rights of the Smoaks to be free from excessive force and unreasonable seizures under the Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States.

61.       As a result of this deliberate indifference to the Smoaks’ rights, the Smoaks suffered personal injuries and lost the companionship and value of their family dog, Patton and are entitled to relief under 42 U.S.C. §1983.

62.       In committing the acts complained of herein, Defendants acted under color of state law to deprive Plaintiffs as alleged herein of certain constitutionally protected rights including, but not limited to: a) the right to be free from unreasonable searches and seizures; b) the right not to be deprived of liberty without due process of law; c) the right not to be deprived of property without due process of law; d) the right to be free from excessive use of force by persons acting under color of state law; and e) the right to just compensation for taking of property.

COUNT III

Violation of Civil Rights Pursuant to Title 42 U.S.C. §1983

(Use of Excessive Force)

 

63.       Plaintiffs reallege and incorporate herein by reference the allegations set forth in paragraphs 1-50 of this Complaint.

64.       The Defendant, City of Cookeville, Tennessee, has adopted policies, procedures, practices or customs within the Cookeville Police Department that allow, among other things, the use of excessive force when other more reasonable and less drastic methods are available.

65.       The actions of Defendant City of Cookeville, Tennessee amount to deliberate indifference to the rights of the Smoaks to be free of excessive force and unreasonable seizures under the Fourth and Fourteenth Amendments to the Constitution of the United States.

66.       As a result of the deliberate indifference to the Smoaks’ rights by the City of Cookeville, Tennessee and its agents, servants and employees, the Smoaks suffered serious personal injuries and loss of the value and companionship of their family dog, Patton, and are entitled to relief under 42 U.S.C. §1983.           

COUNT IV

Violation of Civil Rights Pursuant to 42 U.S.C. §1983

(False Arrest)

 

67.       Plaintiffs reallege and incorporate herein by reference the allegations set forth in paragraphs 1-50 of this Complaint.

68.       In committing the acts complained of herein, Defendants Hall, McWhorter, Lamb, Bush and Phann acted under color of state law by falsely arresting and detaining the Plaintiffs with no basis in fact or law to do so.  In violating Plaintiffs’ right to be free from false arrest, the Defendants violated Plaintiffs’ rights under the Fourth, Fifth and Fourteenth Amendments to the Constitution of the United States.

69.       As a direct and proximate result of the violation of their constitutional right to be free from false arrest by the Defendants, Plaintiffs suffered serious personal injuries and special damages as alleged in this Complaint and are entitled to relief under 42 U.S.C. §1983. 

COUNT V

Violation of Civil Rights Pursuant to Title 42 U.S.C. §1983

(Deprivation of Property Without Due Process of Law)

 

70.       Plaintiffs reallege and incorporate herein by reference the allegations set forth in paragraphs 1-50 of this Complaint.

71.       Defendant Hall, in concert with the other Defendants at the scene, intentionally violated the civil rights of the Plaintiffs by his malicious and wanton disregard for Plaintiffs’ property rights.  The killing of Patton amounted to the deprivation of property in violation of the Fifth and Fourteenth Amendments.

72.       Specifically, the conduct of Hall included the unnecessary and unprovoked shooting of the Smoaks’ beloved family pet, Patton.  Patton was the animal companion of Plaintiffs since its birth and provided solace, affection, friendship, and love for the period of his life, up until the time of the date of his death.  As a companion in all those respects, Patton maintained a special relationship with Plaintiffs, situationally and emotionally similar to that of a human family member or relation.

73.       By causing the death of Patton within several feet of the Plaintiffs, while the Plaintiffs were pleading for the animal’s life and consistently advising Defendant Hall and the other Defendants of the gentle nature of Patton, Hall and the other Defendants actually and proximately inflicted an outrageous violation of constitutional rights upon the Smoaks, for which Defendants are liable and Plaintiffs seek damages therefor.

74.       Defendant Hall and the other Defendants, either with the specific intent to violate the Plaintiffs’ civil rights or with a reckless disregard of the probability of causing that violation, shot and killed Plaintiffs’ beloved pet, Patton, without just provocation in front of his owners, the Plaintiffs herein.  The manner in which Hall shot Patton was so extreme and outrageous that it went beyond the bounds of decency.  It would be considered atrocious and utterly intolerable in a civilized community.  The killing of Patton in such a merciless fashion caused severe emotional distress to the Plaintiffs, and Plaintiffs are entitled to compensatory and punitive damages therefor.

COUNT VI

Tennessee Governmental Tort Liability Act

Pursuant to T.C.A. §29-20-101/Tennessee Common Law

 (False Imprisonment)

 

75.       Plaintiffs reallege and incorporate herein by reference the allegations set forth in paragraphs 1-50 of this Complaint.

76.       Plaintiffs aver that the Defendants breached a duty of care owed to Plaintiffs, so as not to deprive them of their personal liberty, by intentionally restraining or detaining Plaintiffs without just cause and without mittimus from a court.

77.       Plaintiffs aver that the Defendants, without probable cause, wrongfully and unlawfully detained and restrained all of the Plaintiffs against their will through use of force for a period of close to thirty minutes.

78.       At no time during the detainment did Plaintiffs resist or attempt to resist the Defendant officers, but were fully cooperating with the orders of the Defendants who had guns pointed at them at various times.

79.       Plaintiffs aver that the Defendants are liable to them for false imprisonment.

80.       As a direct and proximate result of the false imprisonment by the Defendants, Plaintiffs suffered serious personal injuries, emotional distress, and lost the companionship and value of their family dog, Patton.

COUNT VII

Tennessee Governmental Tort Liability Act

Pursuant to T.C.A. §29-20-101/Tennessee Common Law

(Negligence)

 

81.       Plaintiffs reallege and incorporate herein by reference the allegations set forth in paragraphs 1-50 of this Complaint.

82.       Each Defendant owed Plaintiffs a duty to use due care at or about the times of the aforementioned incident.

83.       In committing the aforementioned acts and/or omissions, each Defendant negligently breached said duty to use due care, which directly and proximately resulted in the injuries and damages to the Plaintiffs as alleged herein.

COUNT VIII

Tennessee Governmental Tort Liability Act

 Pursuant to T.C.A. §29-20-101/Tennessee Common Law

(Negligent Supervision)

 

84.       Plaintiffs reallege and incorporate herein by reference the allegations set forth in paragraphs 1-50 of this Complaint.

85.       Each Defendant owed Plaintiffs a duty to use due care at or about the time of the aforementioned incidents. 

86.       Defendants Chief Terry and City of Cookeville, Tennessee negligently supervised Defendants Hall, McWhorter, Lamb, Chesebro and Graham by failing to provide proper training and outline proper procedure in confronting domestic animals. 

87.       Defendant Lt. Andrews negligently supervised Defendants Bush, Phann, McHood, and Brock, by failing to provide proper training and outline proper procedure in dispatching information and confronting people and domestic animals.

88.       An unknown and as yet unnamed Defendant, negligently supervised Shanon Pickard, by failing to provide proper training and outline proper procedure in dispatching information.

89.       In committing the aforementioned acts or omissions, each Defendant negligently breached said duty to use due care, which directly and proximately resulted in the injuries and damages to Plaintiffs as alleged herein.

COUNT IX

Tennessee Governmental Tort Liability Act 

Pursuant to T.C.A. §29-20-101/Tennessee Common Law

(Conspiracy)

 

            90.       Plaintiffs reallege and incorporate herein by reference the allegations set forth in paragraphs 1-50 of this Complaint.

            91.       The Defendants present at the aforementioned incident subsequently participated in a common design through a concert of action to protect fellow officer, Hall, by making overtly false statements in their reports and to the media regarding the circumstances surrounding the aforementioned incident.

92.       In committing the aforementioned acts, each Defendant directly and proximately injured, damaged, libeled, and caused emotional distress to the Plaintiffs herein.

 

 

COUNT X

Tennessee Common Law

(Conversion)

 

93.       Plaintiffs reallege and incorporate herein by reference the allegations set forth in paragraphs 1-50 of this Complaint.

94.       Defendants acted intentionally or in reckless disregard of probable consequences in the exercise of dominion or control over Plaintiffs’ personal property, to wit, Patton, as described.

95.       In concert with the other Defendants at the scene, Officer Hall unjustifiably shot and killed Patton.

96.       The manner in which Defendants, specifically Officer Hall, exercised such dominion or control was both inconsistent with, and seriously interfered with, Plaintiffs’ rights as property owners to enjoy and/or control their personalty.

97.       As a direct and proximate result of one or more of Defendants’ acts of conversion and the injuries resulting from those acts, Plaintiffs lost the intrinsic value of their property and suffered economic and non-economic damages.

COUNT XI

Tennessee Common Law

(Assault)

 

98.       Plaintiffs reallege and incorporate herein by reference the allegations set forth in paragraphs 1-50 of this Complaint.

99.       Plaintiffs aver that the actions of the Defendants breached a duty of care owed to Plaintiffs to not assault them or cause them physical harm or injury, except to the extent allowed by law.

100.    Plaintiffs aver that the Defendants knowingly, wantonly, intentionally, and with gross disregard for the rights of Plaintiffs, assaulted them by turning toward Mrs. Smoak and pointing a shotgun at her immediately after firing multiple shots at their family dog, Patton, who was within a few feet of them. 

101.    Further, Mr. Smoak was slammed to the pavement on his knees by Defendants, more specifically Troopers Bush and Andrews, when he protested the shooting of his dog, Patton.

102.    Further, Plaintiff Brandon Hayden was shoved into the back seat of a patrol car and left handcuffed and on his back for more than twenty minutes, in fear. 

103.    As a direct and proximate result of the acts of the Defendants, Plaintiffs suffered both physical and mental injuries and are entitled to relief.

PRAYERS FOR RELIEF

WHEREFORE, the above premises considered, Plaintiffs demand:

1.         That process issue to the Defendants and that they be required to answer in the time allowed by law.

2.         That judgment be rendered in favor of the Plaintiffs and against the Defendants on all causes of action asserted herein.

3.         That Plaintiffs be awarded those damages to which it may appear they are entitled by the proof submitted in this cause for their physical and mental pain and suffering, both past and future; permanent injury and disability; loss of enjoyment of life; loss of their personalty, Patton; and medical and psychological expenses, both past and future. 

4.         That Plaintiffs be awarded punitive damages against the Defendants.

5.         That Plaintiffs be awarded reasonable expenses incurred in this litigation, including reasonable attorney and expert fees, pursuant to 42 U.S.C. §1988 (b) and (c).

6.         That the Plaintiffs receive any other further and general relief to which it may appear they are entitled.

7.         A jury for the trial of this matter.

 

 

                                                                        Respectfully submitted,

 

 

                                                                        _____________________

                                                                        Mary A. Parker  (6016)

                                                                        PARKER & CROFFORD

                                                                        Suite 511, Cummins Station

                                                                        209 Tenth Avenue, South

                                                                        Nashville, TN  37203

                                                                        (615) 244-2445

 

                                                                        Attorney for Plaintiffs