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Lurks v. City of Newbern

Court of Appeals of Tennessee, Jackson

January 26, 2017

SHIRLEY M. LURKS, ET AL.
v.
THE CITY OF NEWBERN, TENNESSEE, ET AL.

          Session: January 19, 2017

         Direct Appeal from the Circuit Court for Dyer County No. 2013-CV-69 R. Lee Moore, Jr., Judge

         This is 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and Remanded.

          Thomas 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, J., joined.

          OPINION

          BRANDON O. GIBSON, JUDGE

         I. Facts & Procedural History

         Plaintiffs/Appellants 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, [1] Mr. 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 September 2013.

         On 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.

         The 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.[2] 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.

         On June 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 the complaint."[3]

         II. ...


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