SHIRLEY M. LURKS, ET AL.
THE CITY OF NEWBERN, TENNESSEE, ET AL.
Session: January 19, 2017
Appeal from the Circuit Court for Dyer County No. 2013-CV-69
R. Lee Moore, Jr., Judge
a premises liability case filed pursuant to the Tennessee
Governmental Tort Liability Act. Appellant was walking down a
sidewalk when she fell and sustained injuries. She and her
husband brought suit alleging that she fell because the
sidewalk was in a dangerous and defective condition due to
the negligence of the City of Newbern. After a bench trial,
the trial court found that the sidewalk in question was in a
defective condition and that the upkeep of the sidewalk was
the responsibility of the City of Newbern. However, the
plaintiffs failed to provide any evidence that the sidewalk
was the cause of the fall. The trial court issued a
memorandum opinion and final judgment order dismissing the
plaintiffs' claims. We affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed and Remanded.
H. Strawn, Dyersburg, Tennessee, for the appellants, Shirley
M. Lurks and Joe E. Lurks.
Michael R. Hill, Milan, Tennessee, for the appellee, The City
of Newbern, Tennessee.
Brandon O. Gibson, J., delivered the opinion of the court, in
which J. Steven Stafford, P.J., W.S., and Kenny Armstrong,
BRANDON O. GIBSON, JUDGE
Facts & Procedural History
Shirley M. Lurks and Joe E. Lurks (collectively "the
Lurks" or individually "Mrs. Lurks" and
"Mr. Lurks") have lived in their home on Monroe
Street in Newbern, Tennessee for more than thirty years. They
also own a vacant lot next door and a rental house on the
same street. On the evening of August 12, 2012,
Lurks went to the rental house to show a refrigerator to a
couple. Shortly thereafter, Mrs. Lurks set out to meet her
husband at the rental property, which is located diagonally
across the street from their home. After exiting the front
door of her home, Mrs. Lurks walked down to the sidewalk in
front of her home in order to proceed to the rental house.
Mrs. Lurks then fell on the sidewalk. She testified that she
was hurting all over, including that her head and knee were
injured and she was bleeding from her mouth. This incident
occurred on a Saturday night, and Mrs. Lurks went to the
doctor the following Monday. She was referred to Jackson
Madison County General Hospital and then to an orthopedic
surgeon for further treatment of the injuries to her knees.
Mrs. Lurks was treated conservatively for approximately one
year, but she eventually had surgery on her right knee in
August 9, 2013, Mr. and Mrs. Lurks filed suit against the
City of Newbern, Tennessee ("the City"), Mayor Olen
Parker, in his capacity as mayor for the City of Newbern, and
Dyer County, Tennessee, pursuant to the Tennessee
Governmental Tort Liability Act. The complaint alleged that
the dangerous and defective condition of the sidewalk caused
Mrs. Lurks to stumble and fall and that she sustained
injuries as a result. Further, the complaint alleged that Mr.
and Mrs. Lurks complained to the City and its agents on
multiple occasions about the poor condition of the sidewalk,
thereby giving sufficient notice of the dangerous and
defective condition to the defendants. According to Mr. and
Mrs. Lurks, the defendants, by and through their employees,
were guilty of, among other things, negligence in their
maintenance of the sidewalk, and that negligence was the
direct and proximate cause of Mrs. Lurks' injuries. Mrs.
Lurks sought recovery against the defendants for her
injuries, and Mr. Lurks sought damages for loss of the
services, companionship, and consortium of his wife. On
September 25, 2013, the trial court entered an agreed order
dismissing Dyer County as a defendant in the suit, and Mayor
Parker was dismissed by agreement of the parties on the day
of trial. To that end, the plaintiffs proceeded at trial
against the City as the sole defendant.
case was heard on June 3, 2016, in the Circuit Court for Dyer
County, Tennessee. At trial, Mrs. Lurks testified to the
facts surrounding her fall, the condition of the sidewalk,
her injuries, and the lasting effects of her injuries on her
daily life. Most importantly, Mrs. Lurks, as the sole witness
of the incident in question, testified that she fell
immediately, that she did not stumble and fall, and that she
did not know what caused her to fall or whether her foot hit
anything that caused her to fall. In fact, there was no
testimony at all by anyone regarding what caused Mrs. Lurks
to fall. Photographs were introduced showing the poor
condition of the sidewalk. Both Mr. and Mrs. Lurks said that they
were aware of the defects in the sidewalk and had asked city
officials to fix them. Mr. Lurks' testimony corroborated
much of Mrs. Lurks' testimony, but he did not witness
Mrs. Lurks' fall or know what caused her to fall.
15, 2016, the trial court issued a memorandum opinion and
final judgment order dismissing
Plaintiffs'/Appellants' claims. The trial court found
that the sidewalk in question was in a defective condition
and that the upkeep of the sidewalk was the responsibility of
the City. However, the court held that while the sidewalk was
defective, there was no proof as to the cause of Mrs.
Lurks' fall. The court opined that "[t]he plaintiff
has failed to causal[ly] connect her injury to the defective
condition of the sidewalk. Consequently, the Court dismisses