Norman Hamby v. State of Tennessee

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
MAY 20, 2004 Session

NORMAN HAMBY v. STATE OF TENNESSEE

Direct Appeal from the Tennessee Claims Commission
No. 20100628 Nancy C. Miller-Herron, Commissioner

No. W2003-02947-COA-R3-CV - Filed August 2, 2004

Plaintiff filed suit against Defendant seeking damages for injuries caused by a fall that occurred on
Defendant’s premises. The Tennessee Claims Commission ruled in favor of Defendant. Plaintiff
appealed to this Court. This Court reversed the commission’s decision and remanded for a
determination of comparative fault. Upon remand, the commission ruled that Defendant had
breached its duty but found that Plaintiff was at least 50% at fault for his injuries, thereby barring
Plaintiff’s recovery. In the absence of a transcript to support Plaintiff’s position, we must affirm the
commission’s ruling.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Claims Commission Affirmed

DAVID R. FARMER , J., delivered the opinion of the court, in which ALAN E. HIGHERS, J. and HOLLY
M. KIRBY , J., joined.

Stephen R. Leffler, Memphis, Tennessee, for the appellant, Norman Hamby.

Peter M. Foley, Knoxville, Tennessee, for the appellee, University of Tennessee.

OPINION

This Court first addressed this case in Hamby v. State of Tennessee, W2002-00928-COA-
R3-CV, 2002 WL 31749450 (Tenn. Ct. App. Dec. 4, 2002):

This is a premises liability case arising from Plaintiff's fall into a ventilation pit on
the University of Tennessee at Memphis (referred to herein as UT) campus when
an aluminum grate covering the opening collapsed while Plaintiff was standing on
it. UT retained the Pickering Firm to perform an investigation regarding
underground fuel storage tanks and boiler fueling problems. Norman R. Hamby
("Appellant," "Plaintiff," or "Mr. Hamby") is senior design engineer with the
 Pickering Firm. On March 17, 2000, Mr. Hamby, accompanied by Mr. Peter
Hurda of Cummins Mid-South, arrived at the UT Center for Health Sciences in
Memphis.1 Upon arrival, Mr. Hamby checked in with UT employee Ed Justis at
the physical plant then proceeded to the Dunn Dental Building on the UT
campus.2 Outside the Dunn Dental Building, facing Union Avenue, is a
ventilation system. This ground-level opening is approximately thirty (30) feet
long and approximately five (5) to seven (7) feet deep. The surface of the opening
is approximately ten (10) inches above ground and the entire surface of the
opening is covered with a series of aluminum grates.3 At the time of the accident,
each grate rested on a 1 to 1 ½ inch concrete ledge. The equipment that Mr.
Hamby was on site to inspect was located at the bottom of the ventilation system
in the basement of the Dunn Dental Building. In order to get a better look at the
equipment, Mr. Hamby stepped onto one of the grates. The grate slipped off the
ledge and both the grate and Mr. Hamby fell into the pit. Mr. Hamby suffered
injury to his right shoulder and left knee.

Richard Tiebout, the manager of maintenance and construction for UT, testified
that he had not inspected the ventilation system prior to the accident but had
subsequently modified the grates so that they sat on a three (3) inch shelf instead
of the 1 ½ inch ledge.4 The same type and grade of aluminum grates was used in
the modification.5 Mr. Tiebout also indicated that the grates were only meant as a
covering for the ventilation system and not as a walkway over the area; however,
he does testify that there were no signs or warnings posted to indicate that the
grates were not to be walked on or were otherwise unsafe. The ventilation system
is not accessible by walkway nor is it near an entrance to the Dunn Dental
Building. There is no requirement or policy by UT that such grated openings must

1
Mr. Hurda was accompanying Mr. Hamby for the purpose of providing pricing for whatever equipment Mr.
Hamby recommended so that the Pickering Firm could give an accurate quote to UT.

2
Mr. Justis did not accompany Messrs. Hamby and Hurda to the site where the accident occurred. The UT
Policies on Safety and Health include a provision wherein "the campus police shall restrict areas of risk. Visitors shall
be required to be accompanied by or under the direct responsibility of an authorized UT Memphis student, faculty or
staff member."

3
To clarify, the 10 inches above ground level is the result of a concrete "curb" around the perimeter of the
opening. In order to step onto the grating from the ground, one must step up and over the curb.

4
Mr. Teaford indicates that no inspection of the grate was done because, prior to Mr. Hamby's accident, UT
had had no other reports of incidents or injuries associated with any grate coverings.

5
Mr. Hugh Teaford, the safety officer for UT, testified that the new grates were still "springy" when stepped
on and should not be used as a walkway. According to Mr. Teaford, steel replacement grates were not used because the
area was not meant as a walkway but only to keep someone who might trip from falling into the pit. Additional work was
needed in [the] form of heavier and more secure grates in order to make the area transversable.

-2-
 be surrounded by guardrails or that signs must be posted.6 Prior to Mr. Hamby's
accident, the grating had been in place for twenty (20) to twenty-five (25) years
without incident.
On October 19, 2000, Mr. Hamby filed a claim against the State of Tennessee for
personal injuries under T.C.A. § 9-8-307(a)(1)(C).7 On January 24, 2001, the
Division of Claims Administration notified Mr. Hamby that it was unable to act
on his claim within the ninety (90) day time limit, and the claim was transferred to
the Claims Commission pursuant to T.C.A. § 9-8-402(c). On January 16, 2002,
the case was heard before the Honorable Randy Camp, Commissioner of Claims,
Western Division. At the close of all proof, the Commissioner ruled from the
bench for the State of Tennessee. A Final Order was entered on January 23, 2002.
The Order stated that “the risk was unforeseeable and the University had no notice
of the danger until after Mr. Hamby fell.” The Commissioner did not address the
issue of comparative fault.

Mr. Hamby appeals and presents one issue for review: Whether the University of
Tennessee at Memphis had actual or constructive knowledge of the dangerous
condition of the defective grating which collapsed causing injury to Norman
Hamby.

Hamby, 2002 WL 31749450, at *1-2. In addressing Mr. Hamby’s sole issue on appeal, this
Court engaged in the following analysis:

A negligence claim requires a plaintiff to prove the following elements: (1) a duty
of care owed by the defendant to the plaintiff; (2) conduct by the defendant falling
below the standard of care amounting to breach of the duty; (3) an injury or loss;
(4) causation in fact; and (5) proximate causation. See, e.g., Bradshaw v. Daniel,
854 S.W.2d 865, 869 (Tenn. 1993). The duty element is a question of law
requiring the court to determine "whether the interest of the plaintiff which has
suffered invasion was entitled to legal protection at the hands of the defendant."
Id. at 870 (quoting W. Page Keeton, Prosser & Keeton on Torts, § 37 at 236 (5th
ed. 1984)). In order to answer this question in the context of a T.C.A. § 9-8-
307(a)(1)(C) claim, we must first decide what duty the state owes to invitees on
state property. To that end, the following provisions of T.C.A. § 9-8-307 are also
applicable to this case:

6
Mr. Tiebout also testified that there were no TOSHA warnings or citations relating to UT's inspection of the
grating. Mr. Teaford testified that UT is "self-inspecting" and presents reports to TOSHA every year.

7
The University of Tennessee at Memphis is a subdivision of the State of Tennessee.

-3-
 (c) The determination of the state's liability in tort shall be based on
the traditional tort concepts of duty and the reasonably prudent
person's standard of care.
(d) The state will be liable for actual damages only. No award shall
be made unless the facts found by the commission would entitle the
claimant to a judgment in an action at law if the state had been a
private individual . . .

Id.

This Court has previously addressed the issue of what, if any, duty the state owes to
visitors who come onto property owned by the state and has reached the following
conclusion:

From the usual and ordinary meaning of the words of this statute, we
believe that T.C.A. § 9-8-307(a)(1)(C) removes the state's immunity
to the same extent as the obligation of a private owner or occupier of
land. In other words, for the purposes of determining the state's
liability after removal of immunity, the statute merely codifies the
common law obligation of the owner or occupier of land. Owners and
occupiers of land have an obligation to exercise ordinary care and
diligence in maintaining their premises in a safe condition for visitors
upon the premises, and are under an affirmative duty to protect these
persons against dangers of which they know or which, with
reasonable care, they might discover.
Sanders v. State, 783 S.W.2d 948, 951 (Tenn. Ct. App. 1989) (citing McCormick
v. Waters, 594 S.W.2d 385 (Tenn. 1980)).

Appellee argues that its duty to Mr. Hamby falls within an exception to the general
rule as outlined above. Relying in part upon Blair v. Campbell, 924 S.W.2d 75
(Tenn. 1996), the State of Tennessee takes the position that, although a premises
owner generally owes a contractor the duty to provide a reasonably safe workplace,
that duty does not apply when the contractor is injured while making the specific
repairs called for in the contract. The gravamen of the State's theory is that the grates
that covered the ventilation area were part of the equipment Mr. Hamby was on site
to inspect. From the record before us, we cannot reach this conclusion. The Pickering
Firm was retained by UT to do a study of the underground equipment housed in the
basement and extending into the ventilation area of the Dunn Dental Building.
Contrary to the State's argument, the grates covering the opening to the ventilation
pit were not intimately associated with the equipment Mr. Hamby was there to

-4-
 inspect.8 Consequently, the State owed Mr. Hamby, its business invitee, a duty to
remove or warn against latent or hidden dangerous conditions on the premises of
which the State was or should have been aware through the exercise of reasonable
diligence. See Blair v. Campbell, 924 S.W.2d at 76.

The State also argues that, at the time of Mr. Hamby's accident, the grates were
being used in a manner not intended. In short, the grates were not meant as a
walkway and Mr. Hamby, because of his engineering expertise and experience,
should have found that fact open and obvious. It is true that the traditional
rationale for imposing a duty on an owner/occupier of land to a visitor or invitee
was the owner's superior knowledge of conditions on the premises. See, e.g.,
Kendall Oil Co. v. Payne, 41 Tenn. App. 201, 293 S.W.2d 40, 42 (Tenn. Ct. App.
1955). However, our Supreme Court has recently held that a duty may exist even
where the injury-causing condition is alleged to be open and obvious to the
plaintiff:

That a danger to the plaintiff was open and obvious does not, ipso
facto, relieve a defendant of a duty of care. Instead, the duty issue
must be analyzed with regard to foreseeability and gravity of harm,
and the feasibility and availability of alternative conduct that would
have prevented the harm. The factors provided in the Restatement
(Second) of Torts, § 343(A) relate directly to the foreseeability
question; in short, if the foreseeability and gravity of harm posed
from a defendant's conduct, even if open and obvious, outweighed
the burden on the defendant to engage in alternative conduct to
avoid the harm, there is a duty to act with reasonable care.

Coln v. City of Savannah, 966 S.W.2d 34, 43 (Tenn. 1998).

Of course, the duty due an invitee exists only while the visitor is on the part
of the premises which the occupier has opened to the visitor for the purpose that
makes the visitor an invitee. The Restatement (Second) of Torts § 332 refers to this
as the "area of invitation." The area of invitation will vary according to the facts of
each case but in all cases the area will extend to all parts of the premises to which the
purpose may reasonably be expected to take the invitee, and to those areas which are
located so as to lead the invitee to reasonably think they are open to his or her

8
Take the following analogous situation by way of clarification: A homeowner contracts with a plumber to
repair a hot water heater located in the homeowner's basement. In order to enter the basement, the plumber must open
a door and go down a stairway. If the plumber is injured by the door or on the stairway because of some defect that the
homeowner could have discovered with reasonable care, the homeowner has breached a duty to the plumber. If, on the
other hand, the plumber makes it safely to the water heater and is subsequently injured because of a loose valve or some
other defect in the appliance, the homeowner has breached no duty.

-5-
purpose. See Prosser and Keeton on Torts § 61 at 424 (5th ed. 1984). On the other
hand, there is no liability for harm resulting from "conditions from which no
unreasonable risk was to be anticipated, or from those which the occupier neither
knew about nor could have discovered with reasonable care." Id. at 426. In this
regard, the "mere existence of a defect or danger is generally insufficient to establish
liability, unless it is shown to be of such a character or of such duration that the [fact
finder] may reasonably conclude that due care would have discovered it." Id. at 426-
27. In short, foreseeability is the gravamen of negligence:
Foreseeability is the test of negligence. If the injury which
occurred could not have been reasonably foreseen, the duty of care
does not arise, and even though the act of the defendant in fact
caused the injury, there is no negligence and no liability. The
plaintiff must show that the injury was a reasonably foreseeable
probability, not just a remote possibility, and that some action
within the [defendant's] power more probably than not would have
prevented the injury.

Doe v. Linder Constr. Co., 845 S.W.2d 173, 178 (Tenn. 1992) (citations omitted).

Turning to the facts of this case, we find that UT could reasonably have expected,
and indeed should have expected, that Mr. Hamby's inspection would take him to
the ventilation pit. Since Mr. Hamby's purpose for being on UT's campus was to
observe the equipment that lay at the bottom of that pit, he was well within reason
to think that the area of invitation included the grates that covered the surface of
that pit. Because the grates were within the area of invitation, Mr. Hamby's
accident was not a "remote possibility" but rather a "foreseeable probability."
Even independent of Mr. Hamby's accident, the record indicates that a similar
accident was foreseeable. The State's witness, Mr. Richard Teaford, testified that
"this grating was just to prevent people from tripping and falling into the pit. . . ."
If one of the purposes of the grating was to keep a person who tripped from
accidentally falling into the pit, UT had a duty to inspect the grates to ensure that
they would support the weight of a human body. Whether the body tripped and
fell upon the grating or stepped over the concrete curb onto the grating is not
paramount, although a falling body would certainly exert more force than a
standing body. What is important is UT's contemplation that a person, by
whatever means, could foreseeably make his or her way onto the grates.

The State also relies in part upon the fact that the grates had been in place for
some twenty (20) to twenty-five (25) years without incident to prove that the
accident at issue here was not a foreseeable probability. We cannot agree. In light
of the duty imposed upon UT as discussed in depth above, UT should have
inspected this area long before, and regardless of, Mr. Hamby's business on the
campus. Our interpretation is that UT had twenty (20) to twenty-five (25) years in

-6-
which to conduct what should have been a routine inspection-an inspection that
would have shown the dangerous condition presented by an easily accessible
grating system supported only by a 1 ½ inch ledge. The fact that no one was
injured prior to Mr. Hamby falls under the auspices of luck and cannot be the
basis for relieving UT of a clear duty.

In addressing the issue before us, our task does not end with our finding that the
Plaintiff satisfied the basic elements of a negligence claim. In Jones v. Zayre,
Inc., 600 S.W.2d 730 (Tenn. Ct. App. 1980), the Eastern Section of this Court
said:

Before an owner or operator of premises can be held liable for
negligence in allowing a dangerous or defective condition to exist
on its premise, it must have (1) been created by the owner or
operator or his agent or, (2) if the condition was created by
someone other than the owner or operator or his agent, there must
be actual or constructive notice on the part of the owner of operator
that the condition existed prior to the accident. Gargaro v. Kroger
Grocery & Baking Co., 22 Tenn.App. 70, 118 S.W.2d 561 (1938).

600 S.W.2d at 732.

Before discussing the issue of notice as it relates to this case, we must first be
clear that the issue of comparative fault is not before this Court. Furthermore, the
issue of comparative fault is not part of a notice analysis. From our reading of the
record, it appears that the Commissioner, in his ruling from the bench, ties Mr.
Hamby's alleged fault into his ruling on the issue of notice and foreseeability. The
Appellant relies, in part, upon this Court's decision in Sanders v. State, 783 S.W.2d
948 (Tenn. Ct. App. 1989). In Sanders a nine-year-old boy sustained a head injury
when he fell from playground equipment at a Tennessee state park. The injury
resulted from an exposed concrete footing. In his ruling from the bench, the
Commissioner distinguishes Mr. Hamby's claim from Sanders as follows:

In [the Sanders] case the Claims Commission found that the State
did have notice of a dangerous condition, that being the exposed
concrete footing in either one of two ways: Either it was built that
way by the State with it exposed or over a period of time, the
footing became exposed and the employee who had corrected any
erosion that might have occurred to the exposed footing would
have had actual notice of the dangerous condition by not filling in
that area with soil and wood chips or either the State constructed it
that way and would have known by the construction that it was a

-7-
 dangerous condition with it being exposed and children would be
playing there.
The Court of Appeals found that the State was liable in that case
because of the knowledge in either of the ways that the State would
have had that that condition was dangerous.

I have to distinguish the Sanders case from the claim we have here.
In the Sanders case, we have a 9 year old child playing in a
playground that was built for the purpose of children playing there.

In this case, we have a situation where these grates were covering
an area that was not intended for walking and was out of the
normal traffic area. So, I have to distinguish it on that basis, with
the age of the Claimant and the fact that Mr. Hamby had been on
these grates before.

He had had training and experience in the area that he was out
there to do the study in, and he was familiar with the grates and
even testified that he had walked on them in the past. The
problems I have here with this claim are the foreseeability and
notice issues.

***

Mr. Hamby was a professional person. He was there for a
particular purpose. He was familiar with that area and had been on
those grates before. There is no testimony that any action of any
kind ever occurred on these grates. There is no testimony that
these grates were in a particular area where it would even be
foreseeable that someone would walk on them unless they desired
to do so, that it was their intent to do so.

Foreseeability is the test under negligence as discussed above and comparative
fault is a separate inquiry altogether. The issue of notice should be decided under
the two-pronged test outlined in Jones v. Zayre, Inc. The first question is whether
the state or its agent(s) created or constructed the offending instrumentality. If
that answer is yes, the inquiry stops and the state is charged with actual notice. If
the answer is no, then there must be actual or constructive notice on the part of the
owner of operator that the condition existed prior to the accident[.] The age,
experience, profession, or other attributes of the injured person are not part of the
notice inquiry. Likewise, neither the placement of the instrumentality, nor its
intended purpose is relevant to the issue of notice. Having already addressed the

-8-
 grating's purpose and placement under the duty analysis above, we leave Mr.
Hamby's experience and actions to the arena of comparative fault.

We find that this case is not distinguishable from Sanders on the issue of notice.
In Sanders, we said that, "In the case at bar, the state constructed the offending
instrumentality and obviously must be charged with notice of its condition as
constructed." 783 S.W.2d 948, 952 (Tenn. Ct. App.1989). See also McGaughy v.
City of Memphis, 823 S.W.2d 209, 214-15 (Tenn. Ct. App.1991). According to
the testimony in this case, the grating was part of the original construction of the
Dunn Dental Building. Before this accident, the grating had remained unchanged
in the twenty (20) to twenty-five (25) years since the building was completed.
Testimony indicated that the grating was there to keep debris out of the pit and to
protect anyone from falling into it. Although the grating succeeded in keeping
debris from the machinery below, it was woefully inadequate for its other function
of keeping people from falling into the pit. Because we find that the state or its
agent(s) created the offending instrumentality when it constructed the Dunn
Dental Building, we must charge them with notice under the first prong of Jones
v. Zayre, Inc.

For the foregoing reasons, we find that the evidence preponderates against the
Commissioner's ruling. We, therefore, reverse the order of the Commissioner and
remand the case for further proceedings which may include the issue of
comparative fault. Costs of appeal are assessed against the appellee, State of
Tennessee.

Hamby, 2002 WL 31749450, at *2-7. Upon remand, the Tennessee Claims Commission
conducted a second hearing on October 28, 2003, before the Honorable Nancy C. Miller-Herron,
Commissioner. In a final order, entered November 20, 2003, the Commissioner stated:

After reviewing the transcript of the prior hearing, as well as the testimony
in this cause and after assessing the credibility of witnesses and reviewing
carefully the depositions submitted for proof and the entire record as a whole, the
Commissioner FINDS the Claimant met his burden of proof regarding the
elements of negligence on the part of the state. The Commissioner also FINDS
that the state’s negligence was a proximate cause of Mr. Hamby’s injuries.

However, the evidence presented makes it clear that the Claimant bears
fault in this case as well. Mr. Hamby is a professional with three (3) years of
formal training in engineering and forty-four (44) years of experience in
engineering design. Although he is not a licensed engineer, he was on the UT
campus that day in his capacity in electrical engineering design.

-9-
 Mr. Hamby admitted in the January, 2002 trial [the First Hearing] that he
did not inspect the grate to make sure it was well seated or . . . if it was hanging
correctly when he stepped on it. Mr. Hamby also admitted during cross
examination that he could have assessed the pit for his inspection by removing the
grate and descending into the pit on a ladder.

The Commissioner FINDS the State has satisfied its burden of proof and
has established that Mr. Hamby is more than fifty percent (50%) at fault for his
injuries. Because of Mr. Hamby’s training, experience, and knowledge, the
Commissioner FINDS that a majority of the fault must be allocated to him. Thus
because Mr. Hamby’s own negligence exceeds fifty percent (50%), it bars any
recovery in the cause.

Mr. Hamby timely filed his notice of appeal.

Issue Presented

Mr. Hamby raises the following issue, as we restate it, for our review:

Whether the Claims Commission erred in allocating 50% or more of fault
to Mr. Hamby.

Standard of Review

We review a decision from the Tennessee Claims Commission in accordance with the
following standard:

Since this is a nonjury case, we review the case de novo upon the record with a
presumption of correctness of the findings of fact by the commission. Unless
evidence preponderates against the findings[,] we must affirm absent error of law.

Dobson v. State, 23 S.W.3d 324, 328-29 (Tenn. Ct. App. 1999) (citing Tenn. Code Ann. § 9-8-
403(a)(1) (1999); Tenn. R. App. P. 13(d); Sanders v. State, 783 S.W.2d 948 (Tenn. Ct. App.
1989)).

Analysis

Mr. Hamby contends that the claims commission erred by concluding that he was at least
50% at fault because the decision “was reached with no evidence to support it and is in
opposition to all of the evidence that the Claims Commissioner actually heard.” In support of his
argument, Mr. Hamby relies upon testimony given at the commission hearings. However, there
is only limited testimony contained in the record to support his position. In his brief, Mr. Hamby
cites to the testimony of a University of Tennessee at Memphis employee, who testified that

-10-
while there were no signs warning people not to step on the grates, a person would have to step
up onto the grates to walk on them, as the grates were raised some ten inches off the ground.
That same employee also testified that a person with a certain amount of experience would not be
walking back and forth on the grate to inspect as they could have stood back from the grate to
examine or they could have picked up the grate, as they are removable, and climb down into the
pit to inspect. Although not cited to in his brief, Mr. Hamby did testify in the January 16, 2002
hearing that he had walked on this specific grate before without incident.

The other testimony upon which Mr. Hamby relies is from the hearing that occurred on
October 28, 2003, after remand by this Court. The transcript of that hearing is not contained in
the record.9 “The appellant has the primary burden to see that a proper record is prepared on
appeal and filed in this Court.” McDonald v. Onoh, 772 S.W.2d 913, 914 (Tenn. Ct. App. 1989)
(citing Tenn. R. App. P. 24). Further, “[i]n the absence of a transcript, this Court presumes that
sufficient evidence existed to support the trial court’s decision.” Irvin v. City of Clarksville, 767
S.W.2d 649, 653 (Tenn. Ct. App. 1988) (citing Daniel v. Metro. Gov’t of Nashville, 696 S.W.2d
8, 10-11 (Tenn. Ct. App. 1985); Lallemand v. Smith, 667 S.W.2d 85, 88 (Tenn. Ct. App. 1983)).
After reviewing the record provided to this Court, we do not find that Mr. Hamby has overcome
this presumption by the evidence cited. Accordingly, we affirm the commission’s ruling.

Conclusion

In light of the foregoing, we affirm the decision of the ruling finding Mr. Hamby to be at
least 50% at fault for his accident, thereby barring his recovery. Costs of this appeal are taxed to
the Appellant, Norman Hamby, and his surety, for which execution may issue if necessary.

___________________________________
DAVID R. FARMER, JUDGE

9
The only pages of that transcript available to this Court are nine pages, being pages 1, 2, 4, 5, 13, 23, 28, 33,
and 34, attached to Appellee’s brief. The testimony contained in those pages supports the commission’s allocation of
fault.

-11-