DENNIS TURNER ET AL.
CITY OF BEAN STATION ET AL.
Session August 28, 2014
Interlocutory Appeal from the Circuit Court for Grainger County No. 8862-I Ben W. Hooper, II, Judge
Nathan D. Rowell and Brian R. Bibb, Knoxville, Tennessee, for the appellant, City of Bean Station.
No appearance by or on behalf of the appellees, Dennis Turner and Rita Turner.
Charles D. Susano, Jr., C.J., delivered the opinion of the Court, in which D. Michael Swiney and Thomas R. Frierson, II, JJ., joined.
Charles D. Susano, Jr., Chief Judge
According to the complaint, plaintiff was playing softball in a charity tournament on August 14, 2010. He was pitching. A ball hit by a batter bounced off the pitcher's rubber, a small strip of rubber on the mound. The softball hit plaintiff in the face, causing serious injury.
Plaintiff and his wife Rita Turner brought this negligence action against the City, the Mooresburg/Bean Station Little League, and four other individuals alleged to have been responsible for the maintenance of Marvin Rich Field. Plaintiff's theory was that the pitcher's rubber should have been pounded into the ground so it was flush with the dirt, but instead was sticking up above ground level somewhat, creating a defective and dangerous condition.
The City moved for summary judgment, arguing that it was immune from suit under the sovereign immunity doctrine. The City argued that the GTLA removes immunity only for "any injury caused by the dangerous or defective condition of any public building, structure, . . . or other public improvement owned and controlled by [a] governmental entity, " Tenn. Code Ann. § 29-20-204(a) (emphasis added), and that the City neither owned nor controlled Marvin Rich Field. The City presented evidence establishing that the property was owned by the Tennessee Valley Authority, which had granted the City a license for occupancy and "solely for recreational use as a ball park." The City "leased" the license to the little league, which was responsible for maintenance and upkeep of the field and grounds. At the time plaintiff was hurt, the little league had "subleased" the license to defendant Gina Harris, who was in charge of the charity softball tournament.
After discovery and a hearing, the trial court denied the City's motion for summary judgment. The City requested permission to take an interlocutory appeal under Tenn. R. App. P. 9, which the trial court and this Court granted. Plaintiff was represented by counsel in the trial court, but did not file an appellate brief or appear for oral argument. The only issue before us on this appeal is whether the trial court erred in refusing to grant the City summary judgment.
The underlying issue on appeal is whether a governmental entity can be liable under the GTLA if it does not own or control property on which a third party is injured. The trial court determined that there is no genuine issue of material fact with respect to this issue. " We review a trial court's decision on a motion for summary judgment de novo with no presumption of correctness. Issues of statutory construction ...