March 30, 2015
SARAH KEE, ET AL.
CITY OF JACKSON, TENNESSEE
Session August 12, 2014
Appeal from the Circuit Court for Madison County No. C07326 Nathan B. Pride, Judge
John Dean Burleson and Matthew Robert Courtner, Jackson, Tennessee, for the appellant, City of Jackson, Tennessee.
David Wayne Camp, Jackson, Tennessee, for the appellees, Sarah Kee and Larry Kee.
Richard H. Dinkins, J., delivered the opinion of the court, in which J. Steven Stafford, P. J., W. S., and W. Michael Maloan, Sp., J., joined.
RICHARD H. DINKINS, JUDGE
This action arises from a fall suffered by Ms. Sarah Kee on October 7, 2006, while she and her husband were attending a flea market which was taking place at the fairgrounds operated by the City of Jackson. The Kees had parked in an overflow parking lot and were crossing a bridge from the parking area to the fairgrounds when Ms. Kee tripped and fell. The Kees brought suit under the Governmental Tort Liability Act ("GTLA"), alleging that the city breached its duty to inspect and maintain the bridge, thereby causing a dangerous or defective condition which caused Ms. Kee to fall and sustain her injuries.
Following a trial, the court held that the City was not immune from suit; it determined that the City was 60% negligent and the plaintiffs 40% negligent. The court subsequently held a hearing on damages and assessed damages at $62, 817.35 for Ms. Kee and $8, 400.00 for Mr. Kee; applying the comparative fault percentage, the court entered judgment in favor of Ms. Kee in the amount of $37, 690.41 and in favor of Mr. Kee for $5, 040.00. The City appeals, contending that the court erred in determining that the city's immunity was removed, the City did not owe a duty to the Kees, that the Kees failed to prove causation, that Ms. Kee was at least 50% at fault, and that the court erred in its award of damages for Ms. Kee's medical treatment.
I. STANDARD OF REVIEW
Because this case was tried without a jury, our review of the trial court's findings of fact is de novo, accompanied by a presumption of correctness, unless the preponderance of the evidence is otherwise. See Tenn. R. App. P. 13(d); Kaplan v. Bugalla, 188 S.W.3d 632, 635 (Tenn. 2006). Our review of the trial court's determinations regarding questions of law is de novo with no presumption of correctness. Kaplan. 188 S.W.3d at 635.
A. Removal of Governmental Immunity
Tenn. Code Ann. § 29-20-201(a) sets forth the general rule of governmental immunity: "Except as may be otherwise provided in this chapter, all governmental entities shall be immune from suit for any injury which may result from the activities of such governmental entities wherein such governmental entities are engaged in the exercise and discharge of any of their functions, governmental or proprietary." Latter statutes remove immunity for negligent operation of motor vehicles (Tenn. Code Ann. § 29-20-202), unsafe streets and highways (Tenn. Code Ann. § 29-20-203), dangerous structures (Tenn. Code Ann. § 29-20-204), and negligent acts of employees (Tenn. Code Ann. § 29-20-205).
The trial court held that the city's immunity was removed pursuant to Tenn. Code Ann. § 29-20-204 which states:
(a) Immunity from suit of a governmental entity is removed for any injury caused by the dangerous or defective condition of any public building, structure, dam, reservoir or other public improvement owned and controlled by such governmental entity.
(b) Immunity is not removed for latent defective conditions, nor shall this section apply unless constructive and/or actual notice to the governmental entity of such condition be alleged and proved in addition to the procedural notice required by § 29-20-302.
In its ruling the court stated:
The Court finds, from the testimony of the City employees, that the bridge was not inspected on a regular basis. Repairs to the bridge were done only when someone reported a problem with the bridge. Inspections were done on a random basis when one of the employees drove a "Gator" across the bridge or an employee walked across the bridge. That person would look down to see if there were any problems with the bridge.
After studying the case law submitted by the parties and its own independent research, this Court has concluded that the City of Jackson is not immune from suit under these circumstances. The bridge as depicted in the pictures on October 9, 2006 is in a clearly defective and dangerous condition. Tenn. Code Ann. § 29-20-204. This Court has concluded that the City of Jackson failed to adequately inspect the bridge that it owned and controlled. Thus, the Plaintiffs have met the burden of proving constructive notice.
As an initial matter, we address the City's contention that, even if its immunity is not removed, it is not liable because the Kees cannot identify what caused Ms. Kee to fall and, consequently, cannot show the necessary element of causation. In this regard, the trial court wrote:
Plaintiff Sarah Kee admitted that she does not know the exact cause of her fall. She stated that she was walking across the bridge when she felt her foot hit something and fell like a tree. The left shoe admitted as Exhibit 3 clearly shows a scuff mark or nail mark on the bottom, surface of the shoe.
Plaintiff Larry Kee testified that he was with his wife when she fell. He also did not see what caused her to fall, but testified that she fell forward and caught herself with her hands. . . . Mr. Kee further testified that he returned to the bridge on October 9, 2006 and took various photographs presented to the court as Exhibits 1 and 2. The pictures clearly show a broken rotten runner on the bridge along with nails sticking up in more than one place. The pictures further show that the planks were not even and that gaps exist between the boards in various places on the bridge. Mr. Kee testified that some of the nails were protruding by about three quarters of an inch.
We have reviewed the testimony of the Kees, and the employees and representatives of the City, along with the numerous photographs; applying the standard of review at Tenn. R. Civ. P. 13(d),  the evidence does not preponderate against the determinations that the bridge was in a dangerous and defective condition, and that the condition caused Ms. Kee's fall.
In order to remove the City's immunity, Tenn. Code Ann. § 29-20-204(b) requires that the City have actual or constructive notice of the dangerous or defective condition. A succinct definition of "constructive notice" was set forth in Hawks v. City of Westmoreland as follows:
"Constructive notice" has been defined by this Court as "'information or knowledge of a fact imputed by law to a person (although he may not actually have it), because he could have discovered the fact by proper diligence, and his situation was such as to cast upon him the duty of inquiring into it.'" Kirby v. Macon County, 892 S.W.2d 403, 409 (Tenn. 1994), quoting Black's Law Dictionary, 1062 (6th ed.1990). Applying that definition, a governmental entity will be charged with constructive notice of a fact or information, if the fact or information could have been discovered by reasonable diligence and the governmental entity had a duty to exercise reasonable diligence to inquire into the matter.
960 S.W.2d 10, 15 (Tenn. 1997); see also Halliburton v. Town of Halls, 295 S.W.3d 636, 640 (Tenn. Ct. App. 2008). In Benn v. Public Bldg. Authority of Knox County, the court stated, relative to proof of constructive notice:
A plaintiff can establish constructive notice in one of three ways. First, a plaintiff may demonstrate that the owner or operator of the premises caused or created the condition. Second, if a third party caused or created the dangerous condition, a plaintiff may prove constructive notice by evidence that the condition "existed for a length of time" that the owner/occupier "in the exercise of reasonable care, should have become aware of that condition." Third, a plaintiff may show constructive notice by proving that "a pattern of conduct, recurring incident, or general continuing condition" caused the dangerous condition.
2010 WL 2593932, at *3 (Tenn. Ct. App. June 28, 2010) (internal citations omitted).
The City contends that it did not have constructive notice of the condition of the bridge. It argues that plaintiffs have not argued or alleged that the bridge was defective when first built, that a third party caused or created the dangerous condition, and that the Kees have not shown a pattern or conduct, prior accidents or complaints or other recurring incident with which to charge it with constructive notice. We agree that the Kees have not argued or alleged that the bridge was defective when first built and there is no allegation or proof that a third party created the dangerous condition; consequently, consistent with Benn, we focus on the "common occurrence" theory.
The court's findings relative to the frequency of the City's inspections of the bridge and the condition of the bridge on October 7, 2006, are supported by the testimony and exhibits. Andy Middleton, the City's supervisor of the fairgrounds on the date of Ms. Kee's fall, testified that his responsibilities included checking the bridge for loose nails or boards as he drove across it when he was working at the fairgrounds; that he and Jim Scott, another City employee, inspected the bridge after Ms. Kee's fall; and that he observed two nails "barely sticking [up]" on the bridge, which he hammered down. Jim Scott, building attendant for the City on the date of Ms. Kee's fall, testified that it was part of his responsibility to check the bridge for defects when he crossed it, either by walking or by riding a four wheel "Gator" vehicle. The photographs of the bridge show various conditions, including exposed nails, rotting or decayed wood, and the broken runner referenced by the trial court, which rendered the bridge dangerous and defective; the conditions are readily apparent and clearly support a determination that the City was on constructive notice of the same.
B. Duty Owed Plaintiffs
The City argues that it owed no duty to the Kees. The nature of the duty owed by the owner of premises was set forth in Green v. Roberts:
Duty, the first element of the claim, is the legal obligation a defendant owes to a plaintiff to conform to the reasonable person standard of care in order to protect against unreasonable risks of harm. . . . This duty is based upon the assumption that the owner has superior knowledge of any perilous condition that may exist on the property. The duty includes the obligation of the owner to maintain the premises in a reasonably safe condition, and to remove or warn against latent or hidden dangerous conditions of which the owner is aware or should be aware through the exercise of reasonable diligence. However, our Supreme Court has held that a duty may exist even where the injury-causing condition is alleged to be open and obvious to the plaintiff:
That a danger to the plaintiff was open and obvious does not, ipso facto, relieve a defendant of a duty of care. Instead, the duty issue must be analyzed with regard to foreseeability and gravity of harm, and the feasibility and availability of alternative conduct that would have prevented the harm. The factors provided in the Restatement (Second) of Torts, § 343(A) relate directly to the foreseeability question; in short, if the foreseeability and gravity of harm posed from a defendant's conduct, even if open and obvious, outweighed the burden on the defendant to engage in alternative conduct to avoid the harm, there is a duty to act with reasonable care.
In essence, foreseeability is the gravamen of negligence. If the injury that occurred could not have been reasonably foreseen, the duty of care does not arise, and even though the act of the defendant caused the injury, there is no negligence and no liability. "'The plaintiff must show that the injury was a reasonably foreseeable probability, not just a remote possibility, and that some action within the [defendant's] power more probably than not would have prevented the injury.'"
398 S.W.3d 172, 177-78 (Tenn. Ct. App. 2012) (internal citations omitted). In its argument, the City merges the question of the duty owed to Ms. Kee with its assertion that certain of her behavior was negligent. We believe, however, that Ms. Kee's actions are more appropriately considered with respect to the trial court's determination of her contributory negligence.
The record in this case establishes that the City considered the bridge to constitute a potential danger to the public, inasmuch as employees were instructed to inspect the bridge when crossing it and to report conditions in need of repair; the inspections were, however, sporadic. The photographs showing the condition of the bridge two days after Ms. Kee's fall are evidence of the nature of the harm which could occur to persons who had to cross the bridge in going from the parking lot to the flea market. That someone could fall on the bridge, due to the exposed nails and decaying wood, was reasonably foreseeable and there is no proof that the City took any measures to either address the condition, to warn of its existence, or to direct flea market patrons not to cross the bridge. The record supports the holding that the City owed a duty to Ms. McKee, as a patron of the flea market.
C. Fault Attributed to Ms. Kee
With respect to the affirmative defense of comparative fault, the trial court held:
The Court further finds that both parties were at fault. Mrs. Kee was at fault for not keeping an adequate lookout when walking across the bridge. In fact, her husband testified that she may have been looking over to the Fairgrounds when she fell. The City of Jackson is at fault for not inspecting the bridge on a regular basis and making sure that no nails or boards were protruding that might trip an invitee to the Fairgrounds.
The Court has considered the factors set in Eaton v. McLain, 891 S.W.2d 587 (Tenn. 1994). This Court has determined that the City of Jackson is sixty percent (60%) at fault in this case and Mrs. Kee is forty percent (40%) at fault.
The City contends that the evidence preponderates against the finding that Ms. Kee was not at least fifty percent at fault; it argues that Ms. Kee had superior knowledge of the bridge's condition, that there was an alternate course to take to get from the parking area to the flea market, that Ms. Kee realized the risk but proceeded in spite of the same, and that she was inattentive as she walked across the bridge.
In Eaton v. McLain our Supreme Court instructed with reference to determining percentage of fault:
In summary, the percentage of fault assigned to each party should be dependent upon all the circumstances of the case, including such factors as: (1) the relative closeness of the causal relationship between the conduct of the defendant and the injury to the plaintiff; (2) the reasonableness of the party's conduct in confronting a risk, such as whether the party knew of the risk, or should have known of it; (3) the extent to which the defendant failed to reasonably utilize an existing opportunity to avoid the injury to the plaintiff; (4) the existence of a sudden emergency requiring a hasty decision; (5) the significance of what the party was attempting to accomplish by the conduct, such as an attempt to save another's life; and (6) the party's particular capacities, such as age, maturity, training, education, and so forth.
891 S.W.2d 587, 592 (Tenn. 1994) (internal citations omitted). The apportionment of fault is a question of fact, which the Court of Appeals reviews with a presumption of correctness. Durham ex rel. Durham v. Noble, No. M2011-01579-COA-R3-CV, 2012 WL 3041296, at *3 (Tenn. Ct. App. July 25, 2012) (citing Hocker v. State, No. E2008-02638-COA-R3-CV, 2009 WL 3518164, at *6 (Tenn. Ct. App. Oct.30, 2009); Wilson v. Pickens, 196 S.W.3d 138 (Tenn. Ct. App. 2005); Lewis v. State, 73 S.W.3d 88, 94–95 (Tenn. Ct. App. 2001)).
The concerns expressed by defendant largely reflect the affirmative defenses of assumption of risk and failure to keep a proper lookout that were elements of contributory negligence, a principle that was done away with when our Supreme Court adopted comparative negligence in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992). See Green, 398 S.W.3d at 178. The trial court appropriately considered Ms. Kee's actions and assigned 40% fault to her; affording that finding the presumption of correctness, we have determined that it is not inconsistent with the preponderance of the evidence.
D. Medical Bill for Ms. Kee's Treatment in 2010
The City contends that the court erred in awarding $1, 381.00 in damages for medical treatment Ms. Kee received in 2010. Upon review of the deposition of Dr. Jason Hutchinson, who rendered the treatment at issue, we agree that he did not affirm to a reasonable degree of medical certainty that the treatment was causally related to the injury Ms. Kee received when she fell; consequently, we reduce the award of damages by $1, 381.00.
For the foregoing reasons, the judgment of the trial court is affirmed as modified.