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McMahan v. City of Cleveland

Court of Appeals of Tennessee, Knoxville

October 9, 2019

DENITA MCMAHAN
v.
CITY OF CLEVELAND, TENNESSEE

          Session July 18, 2019

          Appeal from the Circuit Court for Bradley County No. V-14-096 J. Michael Sharp, Judge

         In this 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.

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

          Franklin H. Chancey, Cleveland, Tennessee, for the appellant,

          Denita McMahan. Ronald D. Wells, Chattanooga, Tennessee, for the appellee, City of Cleveland.

          Frank 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.

          OPINION

          FRANK G. CLEMENT JR., P.J., M.S.

         On 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"), [1] in 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.

         On 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."

         In its 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.

         The 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.[2] 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.

         Plaintiff 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.

         Tommy 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 Plaintiff's ...


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