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Morgan v. Memphis Light Gas & Water

Court of Appeals of Tennessee, Jackson

February 6, 2018

JESSIE MORGAN
v.
MEMPHIS LIGHT GAS & WATER

          Session April 25, 2017

         Appeal from the Circuit Court for Shelby County No. CT-001659-14 Felicia Corbin Johnson, Judge

         Plaintiff, 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.

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

          Halbert E. Dockins, Jr., Jackson, Mississippi, for the appellant, Jessie Morgan.

          Thomas 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., joined.

          OPINION

          RICHARD H. DINKINS, JUDGE

         I. Facts and Procedural History

         Memphis 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 treatment.

         Mr. 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.

         A bench 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 follows:

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.

         The 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 premises?
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?

         II. Standard of Review

         In a 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. 2004)).

          III. Analysis

         A. Notice

         The 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 statute provides:

(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 entity.
(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.[1]

         The 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 ...

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