RONALD OSBORNE, ET AL.
THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY
Session December 7, 2017
from the Circuit Court for Davidson County No. 15C320
Hamilton V. Gayden, Jr., Judge.
patron at a convenience center owned and operated by a
metropolitan government fell and injured himself at the
center. The trial court found that the metropolitan
government breached its duties and was at fault for the
patron's injuries, but that the patron was also at fault
in failing to notice the drainage cut that caused his fall.
The trial court apportioned eighty percent of the fault to
the metropolitan government and twenty percent to the patron.
The metropolitan government appeals, arguing that the patron
was at least fifty percent at fault. We affirm the decision
of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Earl Robinson, Patrick John Bradley, and Phylinda Lorene
Ramsey, Nashville, Tennessee, for the appellant, Metropolitan
Government of Nashville & Davidson County.
Bryan Moseley, Murfreesboro, Tennessee, for the appellees,
Ronald Osborne and Tonie Osborne.
D. Bennett, J., delivered the opinion of the Court, in which
Richard H. Dinkins and W. Neal McBrayer, JJ., joined.
D. BENNETT, JUDGE.
and Procedural Background
Metropolitan Government of Nashville and Davidson County
("Metro") owns and operates the East Nashville
Convenience Center, a facility designed to provide citizens
of Davidson County with a place to take trash that is too
large for pickup by the regular trash trucks--for example,
appliances and furniture.
convenience center had eight-foot-tall bins for the disposal
of trash items. There were two levels for access to the bins,
a lower level and an upper platform that was five feet, three
inches higher than the lower level. The bins sat on the lower
level. A person could drive onto the upper platform and then
stand on the platform and put items in the bins from there.
In order to prevent vehicles from driving off of the upper
platform, there was a 26-inch-wide concrete barrier around
its edge that extended three or four inches beyond the top of
the platform. During a 2007 renovation, 15-inch-long drainage
cuts were placed in the concrete barrier to allow water to
drain off of the platform onto the lower level. There were
signs that instructed patrons: "Please Use Care When You
Unload Items" and "Children Must Stay Inside of
Osborne visited the convenience center on February 28, 2014,
to dispose of some building materials. When Mr. Osborne
arrived at the convenience center, a worker directed him to a
certain bin. Mr. Osborne had been to the convenience center
many times, but he had never used that particular bin, nor
had he ever been in the area where the concrete barrier had
drainage cuts. To get to the bin, Mr. Osborne drove his truck
up a ramp to the elevated platform and backed up close to the
concrete barrier on the driver's side of his truck, with
the bed of the truck over the concrete barrier near the trash
bin he was using.
Osborne stepped out of his truck onto the concrete barrier.
He took no precautions, such as looking down at the barrier
after he stepped onto it or holding onto his truck. Facing
the truck, Mr. Osborne sidestepped along the barrier, moving
from the cab of his truck toward the back of his truck,
throwing items into the bin to the rear of the truck. When he
approached the back of the truck, the area where the drainage
cut was located, Mr. Osborne turned to face the bin. His left
foot "hit air" and he fell approximately five feet,
sustaining injuries to his left arm.
Osborne and his wife, Tonie Osborne, filed suit on January
22, 2015, against Metro under the Governmental Tort Liability
Act for the negligent acts of Metro employees as well as the
maintenance of an unsafe condition on Metro property. The
complaint includes the following allegations:
5.6 The raised walkway is used by individuals to throw
garbage from their vehicles into the bins.
5.7 The walkway adjacent to the bin to which Mr. Osborne had
been directed by the Defendant's employee had an
unprotected hole or gap in the walkway.
5.8 As Mr. Osborne used the raised walkway to throw garbage
into the bin, his foot fell into the gap causing him to fall
off the platform onto the ground beside the bin.
5.12 It is foreseeable that a gap in a walkway can be
hazardous to a person using the walkway.
5.13 The gap is very low to the ground making it difficult
for pedestrians to notice.
5.14 The gap is not marked and the surrounding material is
all the same appearance and color making it difficult for
pedestrians to notice.
5.15 It is foreseeable that a person using the walkway would
be focused on the garbage being thrown away, the bin into
which the garbage is being thrown, and the drop off itself,
and that these distractions would draw the pedestrian's
attention away from the gap.
5.16 A low gap in a walkway which is unmarked, uncovered, and
unprotected is an unsafe and dangerous condition.
5.17 Defendant [Metro] through its agents and/or employees,
failed to warn Mr. Osborne of the gap in the walkway.
5.24 The walkway where Mr. Osborne was injured was not in
compliance with recognized walkway safety standards.
5.25 The walkway where Mr. Osborne was injured was unsafe and
Osborne asserted the following specific causes of action
against Metro: (1) negligence for breach of its duties to
maintain the property in a reasonably safe condition, to
inspect the property to discover unsafe conditions, to remove
or repair unsafe conditions whenever possible, and to give
proper warning of conditions that could not be removed or
repaired; and (2) negligence for failure to comply with
safety standards and local codes. The complaint also includes
a claim for loss of consortium on behalf of Ms. Osborne. In
its answer, Metro disagreed with many of Mr. Osborne's
factual assertions and denied any liability. Moreover, Metro
asserted affirmative defenses, including comparative fault.
case was tried without a jury on March 21 and 22, 2017. The
plaintiffs presented testimony from David Johnson, an expert
witness in safety engineering and safety standards and in
policies and procedures for the inspection of walkways. The
plaintiffs' other witnesses were Mr. Osborne; Bart
Osborne, his son; and Mrs. Osborne. The plaintiffs' also
submitted the deposition testimony of Dr. Christian Anderson,
the surgeon who treated Mr. Osborne for his injuries.
Metro's witnesses were Clayton Hand, Metro solid waste
engineer; Vivian Hubble, Metro safety inspector; Cody
Osborne, a waste superintendent for Metro Public Works; and
Mr. Osborne. We will summarize the testimony of these
witnesses below as relevant to the issues on appeal.
final judgment entered on April 25, 2017, the trial court
entered judgment in favor of Mr. Osborne and apportioned
fault eighty percent to Metro and twenty percent to Mr.
Osborne. The trial court made ...