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Kee v. City of Jackson

Court of Appeals of Tennessee, Jackson

March 30, 2015

SARAH KEE, ET AL.
v.
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.

OPINION

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.

II. DISCUSSION

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 ...


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