EVELYN JUNE THOMASON, )
)
Plaintiff/Appellant, )
) Davidson Third Circuit
) No. 94C-3358
VS. )
) Appeal No.
) 01-A-01-9602-CV-00067
THE METROPOLITAN GOVERNMENT )
OF NASHVILLE AND DAVIDSON )
COUNTY, )
)
FILED
Defendant/Appellee. )
July 3, 1996
IN THE COURT OF APPEALS OF TENNESSEE Cecil W. Crowson
Appellate Court Clerk
MIDDLE SECTION AT NASHVILLE
APPEAL FROM THE THIRD CIRCUIT COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
HONORABLE BARBARA N. HAYNES, JUDGE
ROBERT J. NOTESTINE, III
104 Woodmont Blvd.
Suite 115
Nashville, Tennessee 37205
ATTORNEY FOR PLAINTIFF/APPELLANT
The Department of Law of the
Metropolitan Government of
Nashville and Davidson County
JAMES L. MURPHY, III
Director of Law
WARREN A. JASPER
Metropolitan Attorney
204 Metropolitan Courthouse
Nashville, Tennessee 37201
FOR DEFENDANT/APPELLEE
REVERSED AND REMANDED
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
BEN H. CANTRELL, JUDGE
WILLIAM C. KOCH, JR., JUDGE
EVELYN JUNE THOMASON, )
)
Plaintiff/Appellant, )
) Davidson Third Circuit
) No. 94C-3358
VS. )
) Appeal No.
) 01-A-01-9602-CV-00067
THE METROPOLITAN GOVERNMENT )
OF NASHVILLE AND DAVIDSON )
COUNTY, )
)
Defendant/Appellee. )
OPINION
The plaintiff, Evelyn June Thomason, has appealed from a summary judgment
dismissing her suit against the defendant, Metropolitan Government of Nashville and
Davidson County, Tennessee, for personal injuries sustained in a fall on the premises of the
Lentz Health Center, a facility owned and managed by the defendant.
The complaint, as amended, alleged that, in an attempt to enter the building of the
Lentz Health Center she walked on an unlighted driveway and was caused to fall by a “speed
bump” in the driveway. The defendant was alleged to be negligent by failing to illuminate
the driveway for use after dark.
The defendant filed the following motion to dismiss:
Comes the defendant, the Metropolitan Government of
Nashville and Davidson County, and moves this Honorable
Court to dismiss the Amended Complaint filed against it. As
grounds, the defendant states that the Amended Complaint fails
to state a claim upon which relief can be granted. Tennessee
Rules of Civil Procedure, No. 12.02(6). The defendant relies
upon the attached Affidavit and Memorandum of Law in
support of its motion.
The supporting affidavit stated:
. . . 2. The driveway in which the plaintiff tripped is one way
for vehicles. The driveway has no space assigned for
pedestrian travel. The driveway is designed for use by vehicles
only.
-2-
3. The lighting in the area was adequate for vehicles entering the
breezeway to park at the health center.
4. All signs, safety and warning devices wee placed in
contemplation of vehicles entering the parking area from the
prescribed direction.
5. At the point of the speed bump, there is no lighting
device or fixture. All lighting fixtures are placed under the
breezeway for parking and were adequate for parking under the
breezeway.
6. The Metropolitan Government received no complaints
or advance notice that the speed bump, where the plaintiff
tripped, constituted any danger to vehicles or pedestrians.
There were no complaints regarding the lighting in this area for
the one year period preceding the plaintiff’s accident.
Plaintiff’s responsive affidavit contained the following:
. . . 2. I tripped over a speed bump in the driveway of the
Center which was not marked or painted to distinguish it from
the smooth asphalt pavement around it.
3. The area surrounding the speed bump was unlighted
and since the accident occurred in the evening, the speed bump
could not be seen.
4. I was forced to park in the rear of the Health Center due
to the fact that all side parking was reserved by permit only for
Health Center personnel. Therefore, the defendant in this case
knew visitors had to park in the unlighted rear of the Health
Center.
5. Further, the defendant in this case had promulgated a
policy of allowing night visitors to enter the building through
the front door only, thereby forcing me, and others, to walk in
the unlighted driveway to the front of the building.
Defendant filed a further affidavit stating;
... 3. The normal operating hours of the Health Center on
January 6, 1994 were 8:00 a.m. until 8:00 p.m.
4. On January 6, 1994, it was the policy of the Health
Department that all entrances to the Health Center be unlocked
to allow entry into the Health Center from all parking areas
from 6:30 a.m. until 8:00 p.m.
5. There was no policy in place on January 6, 1994
forcing anyone to use the front entrance to the Health Center or
to utilize any particular pathway to gain entry to the exclusion
of the available entrances or pathways.
-3-
6. There were no allegations prior to January 6, 1994,
that any policy promulgated by me regarding building hours or
permitted access created a dangerous condition or hazard.
7. There are sidewalks provided on all sides of the
Health Center providing access for pedestrian to the Health
Center.
8. There were no complaints one year prior to January
6, 1994 regrading inadequate lighting in any of the parking
areas at the Health Center.
The Trial Judge entered an order stating:
... 1. There was no dangerous, defective, or unsafe
condition justifying suit against Metro under the Tennessee
Governmental Tort Liability Act pursuant to T.C.A. § 29-20-
203(a).
2. Metro did not have notice of a dangerous, defective, or
unsafe condition as required by the Tennessee Governmental Tort
Liability Act pursuant to T.C.A. § 29-20-203(b) assuming such a
condition existed.
3. Because a dangerous, defective, or unsafe condition
and notice thereof are required before Metro can be held liable
for the injuries alleged to have been suffered by plaintiff,
plaintiff has failed to meet her burden under the Tennessee
Governmental Tort Liability Act.
It is, therefore, ORDERED, ADJUDGED and
DECREED that this cause be and the same is hereby dismissed,
with costs taxed to the plaintiff.
The sole issue on appeal is whether the Trial Court erred in the summary dismissal of
plaintiff’s suit.
Where evidence is presented to and considered by the Trial Court, a motion to dismiss
may be considered a motion for summary judgment. T.R.C.P. Rule 12.02.
The party seeking a summary judgment has the burden of presenting evidence of facts
which, if not contradicted, entitled that party to judgment as a matter of law. Byrd v. Hall,
Tenn. 1993, 847 S.W.2d 1993.
-4-
No presumption of correctness attaches to summary judgments which are decisions of
law and not of facts. Roberts v Roberts, Tenn. App. 1993, 845 S.W.2d 225.
Plaintiff’s right to recover rests upon an unlighted access to a public building, locked
doors requiring motorists to walk a dark driveway to the only unlocked entrance, and an
unmarked “bump” in the driveway. Examination of the evidence offered by defendant fails
to disclose any uncontradicted evidence denying the existence of these three conditions.
The motion to dismiss merely states that the complaint fails to state grounds for relief.
The complaint does state grounds for relief.
The affidavit attached to the motion does not deny the allegations of the complaint,
but asserts other facts which might relieve the defendant of liability as a matter of law if
uncontradicted. However, plaintiff’s responsive affidavit clarified and specified the reasons
why the affidavit presented by defendant did not present a defense which was conclusive as a
matter of law.
Prior notice of the dangerous condition was not necessary if, as alleged by plaintiff,
the conditions were rendered dangerous by the closure of access to the building from the
parking lot which required plaintiff to walk around the building on the driveway in the dark.
A map of the area attached to plaintiff’s affidavit illustrates the situation confronting plaintiff
when she found a side entrance locked and she was forced to walk in the driveway where
there was no sidewalk. A copy of this drawing is appended to this opinion. A notation on
the drawing identifies the locked access door which forced plaintiff to use the driveway to
reach the only unlocked door.
Defendant relies upon evidence that policies of defendant required all entrances to be
open. This is not a conclusive response to plaintiff’s allegation that at least one entrance was
-5-
locked. Plaintiff’s right to recovery is not based upon a policy of defendant, but upon an
alleged negligent violation of that policy by an employee of defendant in locking a door
which should have been left unlocked.
Defendant presented evidence that there were sidewalks on all sides of the building,
but there is no evidence that the sidewalks were continuous. Moreover, plaintiff’s affidavit
and exhibit are evidence that there was no sidewalk at the point where she was injured.
The summary judgment in favor of defendant is reversed and vacated. Costs of this
appeal are taxed against the defendant. The cause is remanded to the Trial Court for further
proceedings.
Reversed and Remanded.
_______________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
_____________________________________
BEN H. CANTRELL, JUDGE
_____________________________________
WILLIAM C. KOCH, JR., JUDGE
-6-