Does a Statute Create a Private Cause of Action? Middle Section Says 'Not This Time'

TERESA POWELL HUDSON, INDIVIDUALLY AND AS SURVIVING SPOUSE AND EXECUTRIX OF THE ESTATE OF ROBERT MELVIN HUDSON, DECEASED V. TOWN OF JASPER
Court: TN Court of Appeals

Attorneys:

Ronald D. Wells and Stacy Lynn Archer, Chattanooga, Tennessee, for the appellant, Town of Jasper.

Jennifer H. Lawrence and David H. Lawrence, Chattanooga, Tennessee, for the appellee, Teresa Powell Hudson, Individually and as Surviving Spouse and Executrix of the Estate of Robert Melvin Hudson, Deceased.

Judge: CLEMENT

This is a wrongful death action against the Town of Jasper. The surviving spouse of the decedent, who died of complications resulting from a myocardial infarction, alleges that the town was negligent and negligent per se by failing to register its three automated external defibrillators with the emergency communications district dispatch as required by Tennessee Code Annotated §68-140-703 and that such negligence contributed to the decedent’s injuries and death. The town filed a Rule 12.02(6) motion to dismiss for failure to state a claim upon which relief can be granted on the basis the statute did not create a private right of action; the trial court denied the motion to dismiss but granted a Tenn. R. App. P. 9 interlocutory appeal. We have determined there is no express language creating a private right of action in the statute, and, looking to the statutory structure and legislative history of the statute, we have also determined the legislature did not intend to create a private right of action by implication. Therefore, we reverse and remand with instructions to grant the motion to dismiss the complaint for failure to state a claim upon which relief can be granted and enter judgment accordingly.

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