Session July 18, 2019
from the Circuit Court for Bradley County No. V-14-096 J.
Michael Sharp, Judge
action brought under the Governmental Tort Liability Act, the
plaintiff sought damages from the City of Cleveland for
injuries received when she fell after tripping on a raised,
cracked and uneven section of a public sidewalk. In pertinent
part, the plaintiff alleged that the city's immunity
under the Act should be removed based on constructive notice
because the city created the dangerous condition by planting
trees along the sidewalk in the 1990s and roots from those
trees caused the unsafe condition. Alternatively, the
plaintiff asserted that immunity should be removed under the
common occurrence theory of constructive notice because the
tree roots caused numerous and similar defects in other
sections of the city's sidewalks. Following a bench
trial, the trial court found that the city did not have
actual or constructive notice of the alleged defect in the
sidewalk and held that the city was immune from liability
under Tennessee Code Annotated § 29-20-203(b). This
appeal followed. Because the evidence does not preponderate
against the trial judge's finding that the plaintiff
failed to prove that the city had actual or constructive
notice of the alleged defect in the sidewalk where she
tripped and fell, we hold that immunity under the GTLA was
not removed and affirm the judgment of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Franklin H. Chancey, Cleveland, Tennessee, for the appellant,
McMahan. Ronald D. Wells, Chattanooga, Tennessee, for the
appellee, City of Cleveland.
G. Clement Jr., P.J., M.S., delivered the opinion of the
Court, in which D. Michael Swiney, C.J. and Thomas R.
Frierson II, J., joined.
G. CLEMENT JR., P.J., M.S.
February 21, 2013, Denita McMahan ("Plaintiff")
tripped and fell while walking on the public sidewalk as she
was leaving Octavia's Hair Salon (the "Salon"),
Cleveland, Tennessee. Plaintiff had been visiting the Salon
at this location about once every two weeks for approximately
one year. It was a clear day, and Plaintiff was wearing
tennis shoes when she tripped on the sidewalk and fell onto
her right side. Believing that she only sustained contusions
on the right side of her body, Plaintiff went home
immediately after the fall, but she went to the emergency
room that night due to pain and discomfort. A few days later,
Plaintiff had a CT scan that showed two fractured ribs.
February 14, 2014, Plaintiff commenced this action against
the City of Cleveland (the "City"). In an amended
complaint, Plaintiff alleged her injuries were caused by the
negligence of the City in failing "to maintain the
Defendant's property in a safe condition or by the
Defendant's failure to warn Plaintiff of the existence of
a hazardous condition on or about February 21, 2013."
answer, the City admitted that Plaintiff reported the
incident but denied that the incident occurred for the
reasons alleged by Plaintiff. The City denied that it failed
to properly maintain the sidewalk and denied breaching any
duty owed. The City also claimed immunity under the Tennessee
Governmental Tort Liability Act (the "GTLA"), Tenn.
Code Ann. § 29-20-203, asserting that it had no actual
or constructive notice of the alleged defect in the sidewalk.
case was tried in a bench trial on June 7, 2018. Three
witnesses testified at trial: Plaintiff; Lamotta McMahan,
Plaintiff's husband; and Tommy Myers, the Director of
Public Works for the City of Cleveland. Plaintiff
testified that although she had been to the Salon many times
in the past, she never noticed the sidewalk being raised, and
she had not tripped, fallen, or had any problem with the
sidewalk during her previous visits to the Salon. She
described the section that caused her to fall as
"significantly raised" from other sections with
numerous cracks which she could have seen if she had been
looking down. She also stated that this section of the
sidewalk, and all sidewalks in the downtown area, were lined
by mature trees.
testified that the fall caused her to sustain severe
injuries, including pain and suffering, physical and
emotional distress, loss of enjoyment of life, as well as the
loss of her job. Plaintiff testified that she had worked on
the assembly line for Whirlpool for 26 years prior to this
incident. She said she was out of work for one week, went
back for three days after which she took family medical leave
for almost two years because she was unable to perform her
job on the assembly line at Whirlpool. She never went back.
Her husband corroborated her testimony in all respects of
which he had personal knowledge.
Myers, the Director of Public Works for the City, testified
that he supervises the people responsible for working on the
sidewalks. He testified that numerous trees were planted
throughout the City in the 1990s, and the tree roots have
caused some areas of the sidewalks to be raised; however,
there had been no previous complaints regarding the sidewalk
where Plaintiff fell. He further explained that his staff
makes "periodic sweeps" of the downtown area,
checking sidewalks for any problems. In particular, he
testified that his staff conducted sweeps/inspections before
major downtown events in the three years prior to