IN THE COURT OF APPEALS OF TENNESSEE
FILED
October 2, 1995
ALFRED CARROLL JONES and ) C/A NO. 03A01-9506-CV-00196
BETTY JONES, ) WASHINGTON COUNTY LAW COURT
Cecil Crowson, Jr.
) Appellate C ourt Clerk
Plaintiffs-Appellants,)
)
)
)
v. ) HONORABLE LEWIS W. MAY,
) JUDGE
)
)
)
CITY OF JOHNSON CITY, )
TENNESSEE, )
)
Defendant-Appellee. ) AFFIRMED AND REMANDED
HOWARD R. DUNBAR of DUNBAR & DUNBAR, Johnson City, for Appellants
JOHN RAMBO of HERRIN & HERRIN, Johnson City, for Appellee
O P I N I O N
Susano, J.
This suit was brought against the City of Johnson City
(Johnson City) pursuant to the Tennessee Governmental Tort
Liability Act (GTLA), T.C.A. § 29-20-101, et seq. The plaintiff,
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Alfred Carroll Jones (Jones), was injured while working at the
Towne Acres Elementary School, a facility owned and operated by
Johnson City. At the time of the injury, the school was closed
while an addition was being built to the existing structure. The
trial court granted Johnson City's motion for summary judgment,
holding that Jones expressly assumed the risk of his injury and
"as a matter of law that [Johnson City] owed no legal duty to"
Jones based on the undisputed facts. Jones and his wife, the
plaintiff Betty Jones1, appeal, raising the following issues:
1. Is Johnson City entitled to summary judgment
based upon the undisputed material facts?
2. Did Jones expressly assume the risk which
proximately caused his injuries?
I
At the time of his injury, Jones, a licensed
electrician, was employed by Alpha Electric Company, a
subcontractor of W.B. Rittenbach, Inc., the general contractor
hired by Johnson City to build the addition to the school. Jones
was the electrical foreman on the job. On July 15, 1991, Jones,
needing electrical power for a machine he was using, examined an
electrical power board in the main panel breaker box, which was
located in a janitor's closet at the school. He found a breaker
switch not in use, and upon noticing it was loose, inserted a
screwdriver into the breaker box to tighten it. Before doing
this, Jones turned off the breaker switch he was attempting to
1
The wife's claim was for loss of services, companionship, consortium,
etc.
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tighten, but did not turn off the main power switch, also located
in the janitor's closet. Upon inserting his screwdriver into the
breaker box, Jones "heard something fall behind the panel and
immediately thousands of volts of electricity went through his
body," causing him serious injury.
The trial court, presented with these undisputed facts,
found that Jones had "expressly assumed the risk of injury
associated with his working on the panel box." Because we hold
that the GTLA does not remove Johnson City's sovereign immunity
under the facts of this case, we do not find it necessary to
reach the issue of whether Jones expressly assumed the risk of
his injury.2
II
In deciding whether a grant of summary judgment is
appropriate, we must determine "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." Tenn. R. Civ. P. 56.03. We take
the strongest legitimate view of the evidence in favor of the
nonmoving party, allow all reasonable inferences from that
evidence in its favor, and discard all countervailing evidence.
See Byrd v. Hall, 847 S.W.2d 208, 210-11 (Tenn. 1993). If, after
applying this standard, we find that there are no genuine issues
2
Cf. Perez v. McConkey, 872 S.W.2d 897 (Tenn. 1994).
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of material fact and the moving party is entitled to a judgment
as a matter of law, we must affirm the grant of summary judgment.
In this case, as we noted earlier, the material facts
are undisputed; thus there are no genuine issues of material
fact. Johnson City, the party seeking summary judgment, has the
burden of demonstrating that it is entitled to a judgment as a
matter of law. Id. at 215. Generally, a defendant seeking
summary judgment proceeds in one of two ways: (1) by
affirmatively negating an essential element of the plaintiff's
case, or (2) by conclusively establishing an affirmative defense.
Id. at 215, n. 5. In this case, Johnson City has chosen the
second route, asserting that the GTLA does not remove
governmental immunity under these facts and that the City's
immunity therefore bars the plaintiffs' claims.
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III
Our analysis starts with the GTLA provision stating the
general rule of sovereign immunity:
Except as may be otherwise provided in this
chapter, all governmental entities shall be
immune from suit for any injury which may
result from the activities of such
governmental entities....
T.C.A. § 29-20-201(a). The GTLA then goes on to remove immunity
under certain conditions:
(a) Immunity from suit of a governmental
entity is removed for any injury caused
by the dangerous or defective condition
of any public building, structure, dam,
reservoir or other public improvement
owned and controlled by such
governmental entity.
(b) Immunity is not removed for latent
defective conditions, nor shall this
section apply unless constructive and/or
actual notice to the governmental entity
of such condition be alleged and
proved....
T.C.A. § 29-20-204.
Johnson City insists that none of its employees had
actual or constructive notice of any defect in the breaker
box, if such a defect existed. In support of this contention,
Johnson City filed affidavits from Joy Baker, risk manager for
Johnson City, and Les Story, superintendent of school
maintenance. Baker, the city's risk manager since 1981,
stated that "this is the first incident since I have been
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employed as the Risk Manager for Johnson City that resulted in
any claim or complaint associated with the breaker box."
Story, who has worked in the school maintenance department 18
years, stated that during his tenure he never received a
complaint or report of a problem associated with the breaker
box. Johnson City also filed the affidavits of Gerry Nave,
the city electrical inspector, Billy Paul, the head custodian
at the school, and three other school maintenance employees.
All of these individuals made statements essentially to the
same effect as those of Story and Baker. We find that these
affidavits, uncontroverted by the plaintiffs, establish that
if there was a defect in the breaker box, it was a latent
defective condition, and further find that Johnson City did
not have actual or constructive notice of a defect in the
breaker box.
The plaintiffs, however, insist that although
Johnson City may not have known of any defect in the breaker
box, it was aware that the box had not been inspected or
maintained since it was installed some 26 years earlier. The
plaintiffs contend that Johnson City neglected its duty to
periodically inspect the breaker box for defects, and that
failure proximately caused Jones' injury. In support of this
contention, the plaintiffs filed an affidavit from an expert,
James E. Geiger, in which the affiant stated, "[t]he ordinary
and reasonable standard of care is to periodically inspect,
clean (if necessary), tighten any loose screws or bolts (if
necessary)." The plaintiffs also point to several statements
made by Les Story and Gerry Nave which suggest that the
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procedure employed by Johnson City was not to make periodic
inspections but rather to deal with problems, such as
equipment defects, as they arose.
The GTLA speaks directly to this issue:
Immunity from suit of all governmental
entities is removed for injury
proximately caused by a negligent act or
omission of any employee within the
scope of his employment except if the
injury:
* * *
(4) Arises out of a failure to make an
inspection, or by reason of making an
inadequate or negligent inspection of
any property;
T.C.A. § 29-20-205. Thus, the General Assembly has not seen
fit to waive governmental immunity in cases where a government
employee fails to properly inspect "any property."
We think it is clear that this case falls squarely within the
ambit of T.C.A. § 29-20-205, and Johnson City is therefore
immune from the plaintiffs' lawsuit.
The plaintiffs rely upon the case of McGaughy v.
City of Memphis, 823 S.W.2d 209 (Tenn. App. 1991), apparently
for the proposition that Johnson City should be held to have
constructive notice of any defective condition which may have
existed. The McGaughy case involved a "high powered
[electrical] line going across private property which [was]
uninsulated and ha[d] no warning signs." Id. at 214. The
trial court found that the defendant City of Memphis "had both
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actual and constructive notice that the high powered line
which was involved in the accident was dangerous under the
circumstances." Id. at 213. The McGaughy court agreed, on
the grounds that the defendant had knowledge of the fact that
the uninsulated wire was high-voltage and therefore dangerous,
and because a city employee had inspected the site in both the
year of the injury and the year prior, where it "should have
been apparent to anyone visiting the property that activities
were being conducted in close proximity to the line which
could terminate in tragedy." Id. at 215. Thus, in McGaughy,
unlike in the present case, the defendant had notice that
there was a dangerous condition present, and that there was a
high possibility of injury due to that condition, because a
city employee had observed construction activity in close
proximity to the uninsulated high-voltage wire. In the
present case, as noted earlier, there is no evidence that
Johnson City had any notice of a dangerous or defective
condition of the breaker box, nor was there any inspection, as
in McGaughy, which would or should have put it on notice of
any danger. Thus, McGaughy is of no avail to the plaintiffs
in this case.
The judgment of the trial court is affirmed and this
cause remanded to the court below for the collection of costs
assessed there. The costs of this appeal are taxed against
the appellants and their surety.
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__________________________________
Charles D. Susano, Jr., J.
CONCUR:
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Houston M. Goddard, P.J.
__________________________________
Don T. McMurray, J.
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