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Shaw v. Metropolitan Government of Nashville

Court of Appeals of Tennessee, Nashville

December 14, 2017

BONNIE SHAW
v.
METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE

          August 24, 2017 Session

         Appeal from the Circuit Court for Davidson County No. 14C-700 Thomas W. Brothers, Judge

         In this premises liability action, following the filing of a motion for summary judgment by the defendant, the plaintiff filed a motion seeking to amend her complaint to add a claim of negligence per se based on alleged building code violations attributed to the defendant's maintenance of the premises at issue. The trial court failed to rule upon the pending motion to amend before granting summary judgment in favor of the defendant. The plaintiff timely appealed. Due to the trial court's lack of proper consideration of the motion to amend, we conclude that summary judgment was improperly granted. We therefore vacate the grant of summary judgment in favor of the defendant and remand this matter to the trial court for consideration of the motion to amend and entry of an order presenting a reasoned explanation for the grant or denial of the sought amendment. Following such action regarding the motion to amend, the trial court may consider the motion for summary judgment.

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

          Rocky McElhaney and Hunter A. Higdon, Nashville, Tennessee, for the appellant, Bonnie Shaw.

          Jon Cooper, Andrew D. McClanahan, Christopher M. Lackey, and Jennifer Bonilla Moreno, Nashville, Tennessee, for the appellee, Metropolitan Government of Nashville and Davidson County, Tennessee.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and W. Neal McBrayer, J., joined.

          OPINION

          THOMAS R. FRIERSON, II, JUDGE.

         I. Factual and Procedural Background

         The plaintiff, Bonnie Shaw, was employed as a school bus driver for the school system operated by the defendant, Metropolitan Government of Nashville and Davidson County, Tennessee ("Metro"), from 2002 through February 21, 2013, the date of the incident that triggered this premises liability action. On that date, Ms. Shaw attended a mandatory training program conducted by Metro at Antioch Middle School. Ms. Shaw was required to park her bus in an asphalt parking lot/driver training range located at the school in order to board a bus for travel to the training center across campus. While Ms. Shaw was traversing the parking lot on foot to reach the shuttle bus, she tripped on a buckled and cracked portion of the pavement, sustaining injuries during her resultant fall. The buckling and cracking of the pavement were purportedly the result of flooding that had occurred in Nashville in 2010.

         On February 19, 2014, Ms. Shaw filed the instant action in the Davidson County Circuit Court ("trial court"), alleging negligence by Metro and its employees in Metro's maintenance of the parking lot and seeking compensatory damages for her injuries. Ms. Shaw asserted that the parking lot existed in a state of disrepair and had been in such a state for a sufficient length of time that Metro knew or should have known of its dangerous condition. Ms. Shaw further asserted that Metro had breached its duty of care owed to her by failing to repair or warn her of this dangerous condition. Metro filed an answer, denying that the parking lot in question was in a dangerous condition or that it had been negligently maintained. Metro asserted that the instant action was controlled by the Governmental Tort Liability Act ("GTLA") and also subject to principles of comparative fault.

         Metro filed a motion for summary judgment on August 4, 2016. On September 23, 2016, Ms. Shaw sought by motion to amend her complaint to include allegations of negligence per se. In her proposed amended complaint, Ms. Shaw asserted that Metro had violated various applicable building codes by failing to properly maintain the lot at issue. Metro subsequently filed a statement of material facts and additional documents in support of its motion for summary judgment. Ms. Shaw filed a response as well as her own statement of material facts. Ms. Shaw also attached an affidavit from an engineering expert, who opined that Metro had violated various building codes by failing to adequately maintain the parking lot. The record does not demonstrate that the trial court ever considered or acted on Ms. Shaw's motion to amend, a point that Metro concedes in its appellate brief.

         On October 28, 2016, the trial court conducted a hearing regarding Metro's motion for summary judgment. The court entered an order granting summary judgment in favor of Metro on November 21, 2016, stating in pertinent part:

The case of Coln v. City of Savannah is controlling in this matter. There the Supreme Court explained that the fact that a danger to plaintiff was "open or obvious" does not automatically relieve a premises owner or possessor of [a] duty of care. Coln v. City of Savannah, 966 S.W.2d 34 (Tenn. 1998). A defendant only has a duty of reasonable care if the foreseeability and gravity of harm posed from a defendant's conduct, even though "open and obvious, " is outweighed by the burden on defendant to engage in alternative conduct to avoid harm, and circumstances of [a] premises liability case are then analyzed under comparative fault principles. Id. In order to ...

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