Day on Torts
Tennessee cities, counties and other types of governmental entities are generally immune from suit for damages arising from personal injury and wrongful death claims. However, a special law, the Governmental Tort Liability Act (GTLA), allows Tennessee cites and counties to be sued for pseronal injury or wrongful death under certain circumstances by removing that immunity.
One special circumstance where a city or county can be held responsible for a personal injury is where injury is caused by “the dangerous or defective condition of any public building, structure,…or other public improvement owned and controlled by such governmental entity.” Tenn. Code Ann. § 29-20-204(a). In order for liability to be removed pursuant to this statute, the governmental entity in question must have had actual or constructive notice of the dangerous condition. “[A] governmental entity will be charged with constructive notice of a fact or information, if the fact or information could have been discovered by reasonable diligence and the governmental entity had a duty to exercise reasonable diligence to inquire into the matter.” (Quoting Hawks v. City of Westmoreland, 960 S.W.2d 10 (Tenn. 1997)).
In Kee v. City of Jackson, No. W2013-02754-COA-R3-CV (Tenn. Ct. App. March 30, 2015), plaintiff was injured while walking across a wooden bridge from a parking area to the city fairgrounds during a flea market. The bridge was owned and maintained by the city. Plaintiff brought a premises liability claim against the city, and the trial court found for plaintiff, deeming the city liable but finding that plaintiff was 40% comparatively negligent and reducing her award accordingly. The city appealed, and the Court of Appeals affirmed the trial court’s judgment.
Plaintiff alleged that the bridge had a “broken rotten runner,” “nails sticking up in more than one place,” and that “the planks were not even and that gaps exist between the boards in various places on the bridge,” as shown by pictures taken two days after the incident. Although there was no allegation or evidence that the city had actual notice of the dangerous condition of the bridge, the Court determined that plaintiff was proceeding under the “common occurrence” theory, meaning that “a plaintiff can show constructive notice by proving that a pattern of conduct, recurring incident, or general continuing condition caused the dangerous condition.” (Quoting Benn v. Public Bldg. Authority of Knox County, 2010 WL 2593932 (Tenn. Ct. App. June 28, 2010)).
The Court affirmed the trial court’s decision that the city was liable under this constructive notice theory, finding that the city employees did not inspect the bridge on a regular basis, that inspections were random and sporadic, and that photographs taken two days after the incident showed the bridge in a clearly defective and dangerous condition. The Court ultimately held that “[t]he record in this case establishes that the City considered the bridge to constitute a potential danger to the public, inasmuch as employees were instructed to inspect the bridge when crossing it and to report conditions in need of repair; the inspections were, however, sporadic. …That someone could fall on the bridge, due to the exposed nails and decaying wood, was reasonably foreseeable and there is no proof that the City took any measures to either address the condition, to warn of its existence, or to direct flea market patrons not to cross the bridge.” Accordingly, the Court affirmed that the city owed a duty to plaintiff and that it breached that duty of care.
On appeal, the city also asserted that plaintiff was more than 50% at fault and therefore should not have recovered. The city alleged that plaintiff was not keeping an adequate lookout when crossing the bridge and may have been looking elsewhere, making her more than 50% at fault. The Court rejected this argument, though, saying that it reflected affirmative defenses that were done away with when Tennessee adopted comparative rather than contributory negligence.
Overall, this case is a good example of a plaintiff creating a sound record in a premises liability case. Not only did plaintiff have photographs from just two days after the accident, she had also developed testimony at trial regarding the sporadic nature of inspections of the bridge. Interestingly, while the Court affirmed the city’s liability on the “common occurrence” theory of constructive notice, in a footnote the Court also stated that “[t]he photographs also support a determination that the conditions had existed for a period of time sufficient to conclude that the City should have become aware of the condition, thereby establishing constructive notice.” The extra effort to create a solid record made the difference in winning this case, both at trial and on appeal.
Of course, even good legal work isn’t going to win every case. Winning a slip-and-fall case on ice against a Tennessee city or county is always going to be a callenge. And the common occurence theory won’t necessarily win a pothall case. But good lawyering makes a difference in many, many cases.