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Osborne v. The Metropolitan Government of Nashville and Davidson County

Court of Appeals of Tennessee, Nashville

February 22, 2018

RONALD OSBORNE, ET AL.
v.
THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY

          Session December 7, 2017

         Appeal from the Circuit Court for Davidson County No. 15C320 Hamilton V. Gayden, Jr., Judge.

         A 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.

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

          James Earl Robinson, Patrick John Bradley, and Phylinda Lorene Ramsey, Nashville, Tennessee, for the appellant, Metropolitan Government of Nashville & Davidson County.

          James Bryan Moseley, Murfreesboro, Tennessee, for the appellees, Ronald Osborne and Tonie Osborne.

          Andy D. Bennett, J., delivered the opinion of the Court, in which Richard H. Dinkins and W. Neal McBrayer, JJ., joined.

          OPINION

          ANDY D. BENNETT, JUDGE.

         Factual and Procedural Background

         The 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.

         The 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 Your Vehicle."

         Ronald 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.

         Mr. 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.

         Mr. 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 unreasonably dangerous.

         Mr. 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.

         The 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.

         Trial court's ruling

         In a 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 ...


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