Session April 25, 2017
from the Circuit Court for Shelby County No. CT-001659-14
Felicia Corbin Johnson, Judge
who fell in a puddle of water on property adjacent to a water
tower located on property owned by defendant, a governmental
entity, brought suit under the Tennessee Governmental Tort
Liability Act, alleging that the water that caused him to
fall was caused by drainage from the water tower on
defendant's property. Following a trial, the court held
that there was no dangerous or defective condition in the
water tower, such that it was foreseeable that a person would
be injured, and that the defendant had no actual or
constructive notice of any dangerous condition that caused
plaintiff to fall; as a consequence the Governmental Tort
Liability Act did not operate to remove immunity. The court
also held that plaintiff and the owner of the property where
plaintiff fell were each at least 50 per cent at fault and,
therefore, plaintiff could not recover. Plaintiff appeals;
discerning no error we affirm the judgment.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Halbert E. Dockins, Jr., Jackson, Mississippi, for the
appellant, Jessie Morgan.
R. Branch and Sasha B. Gilmore, Memphis, Tennessee, for the
appellee, Memphis Light, Gas, and Water.
Richard H. Dinkins, J., delivered the opinion of the court,
in which Arnold B. Goldin and Kenny W. Armstrong, JJ.,
RICHARD H. DINKINS, JUDGE
Facts and Procedural History
Light Gas and Water ("MLGW") is a governmental
entity that owns and operates a water tank atop an elevated
portion of land in Capleville, Tennessee; MLGW's property
is adjacent to property owned by Cook Sales, Inc. ("Cook
Sales"), where it operates a storage facility. On April
13, 2013, Jessie Morgan and his wife, Tena Morgan, visited
Cook Sales with interest in purchasing a storage unit. The
Morgans were shown a unit by Frank Fiveash, an employee of
Cook Sales; as he exited the unit, Mr. Morgan slipped in a
puddle of water and fell, sustaining a rotator cuff tear to
his right shoulder that required surgery, rehabilitation, and
Morgan filed suit against Mr. Fiveash, Cook Sales, and MLGW
on April 11, 2014, alleging he suffered economic losses and
personal injuries as a result of the fall; he asserted that
the water tank located on MLGW's property leaked, causing
water to intrude onto Cook Sales' property and saturate
the ground where he fell. MLGW denied liability and asserted
several affirmative defenses, including immunity pursuant to
the Tennessee Governmental Tort Liability Act, Tennessee Code
Annotated section 29-20-101, et seq., and
comparative fault on the part of Mr. Morgan and Cook Sales.
In due course, Mr. Fiveash and Cook Sales were voluntarily
dismissed from the case.
trial was held on February 17 and 18, 2016, wherein the trial
court heard testimony from Mr. Fiveash; Mr. and Mrs. Morgan
and their daughter, Ashley; Theoric Washington, the corporate
representative for MLGW; and Mr. Roland Person, MLGW's
supervisor for water operations and water plants. At the
conclusion of the trial, the court made an oral ruling,
subsequently incorporated into an Opinion and Order, in which
the court stated numerous factual findings and held as
1. Plaintiff Jessie Morgan has failed to show that Defendant
Memphis Light, Gas & Water's water tower caused or
created a dangerous or defective condition. The Court further
found that the record was void of any problems or leaks for
at least a 12-month period prior to the date on which Mr.
Morgan was injured.
2. For at least a 12-month period or more, there was
absolutely nothing in the record to say that Memphis Light,
Gas & Water's water tower had a problem with water
runoff. However, if there was a dangerous or defective
condition, that condition existed on the Cook Sales property
and was the responsibility of Cook Sales.
3. Plaintiff Jessie Morgan has failed to demonstrate that
Defendant Memphis Light, Gas & Water had actual or
constructive notice of the alleged defective condition which
Plaintiff contends caused his injuries.
4. Plaintiff Jessie Morgan failed to prove that Memphis
Light, Gas & Water's water tower caused the ground at
Cook Sales, Inc. to be wet, saturated and muddy at the time
of Mr. Morgan's fall on April 13, 2013.
5. Plaintiff Jessie Morgan failed to prove that Memphis
Light, Gas & Water' water tower was the proximate
cause of Mr. Morgan's fall and injuries.
6. Defendant Cook Sales, Inc. was responsible for its
property. The Court further finds that Cook Sales, Inc.'s
employee, Frank Fiveash, knew or should have known that the
ground at Cook Sales, Inc. was in a wet and unsafe condition.
The Court also finds that Mr. Fiveash knew or should have
known that taking a customer to see a shed through the wet,
moist area posed a substantial and foreseeable risk that a
customer could slip and fall, or otherwise be injured. The
Court also finds that Cook Sales, Inc. could have relocated
its shed to a safer location, in order to ensure the safety
of its guests, but Cook Sales, Inc. elected not to do that.
7. Plaintiff Jessie Morgan assumes some responsibility for
his injuries as he should have appreciated the risk of
falling, and should not have taken the risk of walking
through the mud. The Court further finds that the risk was
clear and that Mr. Morgan saw or should have known that the
area was moist.
8. Plaintiff Jessie Morgan cannot recover under the theory of
comparative fault as Mr. Morgan was at least 50% at fault and
the Cook Sales was at least 50% at fault for the alleged
damages and injuries sustained by the Plaintiff.
court entered judgment in favor of MLGW.
Mr. Morgan appeals, articulating the following issues:
1. Did the trial court err by failing to apply the common
occurrence doctrine to the repeated instances where water
drainage created a dangerous condition on the subject
2. Should the court have limited the testimony of MLGW's
witnesses who had no personal knowledge of the relevant facts
of this case?
3. Did the court err by ruling that comparative fault barred
the plaintiff's claims?
Standard of Review
non-jury case such as this, our review of a trial court's
findings of fact is de novo upon the record with a
presumption of correctness, unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d). If, however,
the trial court has not made a specific finding of fact on a
particular matter, we will review the record to determine
where the preponderance of the evidence lies without
employing a presumption of correctness. Id. The
trial court's conclusions of law are reviewed de
novo, and are accorded no presumption of correctness.
Kaplan v. Bugalla, 188 S.W.3d 632, 635 (Tenn. 2006)
(citing State v. Wilson, 132 S.W.3d 340, 341 (Tenn.
Tennessee Governmental Tort Liability Act ("GTLA"),
Tennessee Code Annotated section 29-20-101, et seq.,
grants the governmental entity immunity from suit when
engaged in governmental functions. Benn v. Public Bldg.
Auth. of Knox Cty., No. E2009-01083-COA-R3-CV, 2010 WL
2593932, at *2 (Tenn. Ct. App. June 28, 2010) (citing
Halliburton v. Town of Halls, 295 S.W.3d 636, 639
(Tenn. Ct. App. 2008) (perm. app. denied)). There are several
exceptions in the GTLA to the grant of immunity.
Halliburton, 295 S.W.3d at 639. In the complaint,
Mr. Morgan did not identify a specific provision in the GTLA
by which immunity was removed. The trial court based its
ruling on Tennessee Code Annotated section 29-20-204, and in
his brief on appeal, Mr. Morgan acknowledges that section
29-20-204 is the basis of his claim that MLGW is liable; the
(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
(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.
court in Fowler v. City of Memphis explained what
constitutes notice for purposes of the GTLA:
The Tennessee Supreme Court has described actual notice as
knowledge of facts and circumstances sufficiently pertinent
in character to enable reasonably cautious and prudent
persons to investigate and ascertain as to the ultimate
facts. Constructive notice, in contrast, is defined 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.
Constructive notice may be established by showing that a
dangerous or defective condition existed for such a length of
time that a property owner, in the exercise of reasonable
care, should have become aware of ...