Sue Ann Templeton v. Jackson-Madison County General Hospital District

08/15/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
June 29, 2017 Session

SUE ANN TEMPLETON v. JACKSON-MADISON COUNTY GENERAL
HOSPITAL DISTRICT

Appeal from the Circuit Court for Madison County
No. C-14-213 Roy B. Morgan, Jr., Judge
___________________________________

No. W2016-02419-COA-R3-CV
___________________________________

This is an appeal from the grant of summary judgment in a Tennessee Governmental Tort
Liability Act (“GTLA”) premises liability case. Appellant was exiting Jackson-Madison
County General Hospital/Appellee when she was hit by an automatic door, fell, and
sustained a broken femur. Appellee moved for summary judgment on the ground that it
was immune from suit under the GTLA. Appellant argued that Appellee failed to make a
reasonable inspection of the automatic door, so as to discover the alleged dangerous or
defective condition. The trial court granted summary judgment in favor of Appellee,
finding that the condition was not dangerous or defective, the condition was latent, and
Appellee had no actual or constructive notice of the condition. Discerning no error, we
affirm.

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

KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and BRANDON O. GIBSON, J., joined.

Donald N. Capparella, Nashville, Tennessee; Jonathan Levoy Griffith, Franklin,
Tennessee; and Elizabeth Noel Sitgreaves, Brentwood, Tennessee, for the appellant, Sue
Ann Templeton.

Craig P. Sanders and Patrick W. Rogers, Jackson, Tennessee, for the appellee, Jackson-
Madison County General Hospital District.
 OPINION

I. Background

On August 22, 2013, Sue Ann Templeton (“Ms. Templeton,” or “Appellant”)
filled a prescription at the pharmacy at the Jackson-Madison County General Hospital
District (“Hospital,” or “Appellee”). Ingress and egress to the hospital is through two
sets of automatic, motion-sensored, sliding doors. A review of the Hospital’s security
camera footage shows that, as Ms. Templeton was exiting the Hospital, she approached
the first set of automatic doors at an angle parallel to the face of the door, then turned
sharply left. As she crossed the threshold of the door, her shoulder hit the automatic
sliding door panel, which was closing, and she fell and fractured her femur.

On August 19, 2014, Appellant filed a complaint in the Circuit Court for Madison
County (“trial court”) against the Hospital1 and Tri-State Automatic Doors (“Tri-State”).2
Appellant averred that the automatic door struck her shoulder, causing her fall and
subsequent injuries. Appellant further alleged that the Hospital and Tri-State negligently
failed to: (1) maintain the premises in a reasonably safe condition; (2) discover the
dangerous condition; (3) remove the dangerous condition; and (4) warn of the dangerous
condition. Appellant argued that these failures removed Appellee’s governmental
immunity under the Tennessee Governmental Tort Liability Act (“GTLA”), Tennessee
Code Annotated Section 29-20-101, et seq. The Hospital filed its answer on September
23, 2014, wherein it denied liability and asserted that it was immune from liability
pursuant to the GTLA.

On August 31, 2016, Appellee filed a motion for summary judgment. In its
motion, the Hospital alleged that it was entitled to summary judgment due to GLTA
immunity because: (1) Appellant’s proof was insufficient to show that the premises were
in a “dangerous or defective condition;” (2) if a dangerous condition existed, it was
latent; and (3) Appellee did not have actual or constructive notice of a dangerous or
defective condition.3 On September 26, 2016, Appellant filed her response to the motion

1
Appellant’s complaint erroneously named the Hospital as “Bolivar General Hospital, Inc. d/b/a
Jackson-Madison County General Hospital and West Tennessee Healthcare Inc.” On September 30,
2014, the parties filed an agreed order to correct the style of the case.
2
On April 11, 2016, Appellant voluntarily dismissed Tri-State. It is not a party to this appeal.
3
Appellee also averred that it was immune from suit pursuant to Tennessee Code Annotated
Section 29-20-205, which provides:
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 arises out of:
(4) A failure to make an inspection, or by reason of making an inadequate or
negligent inspection of any property.
The trial court did not discuss this provision in its judgment. Neither party raises this issue, and,
accordingly, the issue is waived for appellate review. In re Kaliyah S., 455 S.W.3d 533, 557 (Tenn.
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for summary judgment, alleging that: (1) because she was struck by the automatic door, a
dangerous condition existed; (2) Appellee failed to complete proper safety checks and,
therefore, had constructive notice of the dangerous condition; and (3) the dangerous
condition would have been discovered if Appellee had properly inspected the door, and,
therefore, the dangerous condition was not latent.

On September 29, 2016, the trial court heard Appellee’s motion for summary
judgment. By order of October 17, 2016, the trial court granted summary judgment in
favor of Appellee. The trial court’s order states, in relevant part:

The Court finds that governmental immunity precludes [Appellant’s]
case. Tennessee Code Annotated § 29-20-204(a) provides that immunity
from suit is removed for injury caused by “a dangerous or defective
condition” of any public building. The Court finds that the automatic doors
at issue did not constitute a “dangerous or defective condition” based upon
the record before it. The undisputed proof shows that a very large number
of people used the automatic doors at issue daily for a long period of time
both before and after [Appellant’s] fall…. [Appellant] is the only known
person to have ever allegedly been struck by the automatic doors. Also, two
maintenance mechanics from the Plant Operations department of the
[Appellee] checked the automatic doors shortly after [Appellant’s] fall.
Neither mechanic found any problem with the automatic doors.

For these reasons, as well as others set forth in [Appellee’s]
Memorandum of Law in Support of Motion for Summary Judgment, a
reasonable trier of fact could not find that the automatic doors constituted a
“dangerous or defective condition” at the time of [Appellant’s] fall based
upon the undisputed proof.

The Court further finds that the alleged condition was latent, even
assuming it was present. Therefore, [Appellee] is entitled to summary
judgment even if the undisputed proof had shown that the condition was a
“dangerous or defective” one. Tennessee Code Annotated § 29-20-204(b)
provides that governmental immunity is not removed for latent conditions.
The undisputed proof shows that the alleged condition, even assuming it
existed, could not be seen absent special circumstances and may have never
been seen even with extensive use…. The expert, Warren Davis, Ph.D.,
testified in deposition that it requires a “special circumstance” to see the
alleged problem. He further testified that “it’s entirely possible to use the
door many, many times in such a way that you’ll never see the door behave
in any way that gives you a clue that that presence sensor or whatever it is

2015) (stating that the failure to raise an issue on appeal results in its waiver).
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 is not working.” For these reasons, as well as others set forth in
[Appellee’s] Memorandum of Law in Support of Motion for Summary
Judgment, the Court finds that the alleged condition was latent based upon
the undisputed proof.

The Court also finds that [Appellee] did not have actual or
constructive notice of the alleged condition. Therefore, [Appellee] is
entitled to summary judgment even if the undisputed proof had shown that
the condition was a “dangerous or defective” one and that the condition was
non-latent. The undisputed proof shows that nobody affiliated with
[Appellee] was aware of any prior problems with the automatic doors at
issue hitting people or closing on people before Plaintiff’s fall despite
heavy use of the doors. [Appellee’s] employees, who were deposed by
[Appellant], indicated that they were not aware of any similar incidents or
complaints. Considering the evidence in the light most favorable to
[Appellant], the Court finds no evidence on which to conclude that
[Appellee] had actual or constructive knowledge that a problem existed
with the automatic doors prior to [Appellant’s] fall.

There is also a lack of proof as to the length of time the alleged
dangerous condition existed on [Appellee’s] property. [Appellant’s] own
expert testified that he does not know how long the alleged defective
condition existed and that his opinion is limited to the time of [Appellant’s]
fall. [Appellee] has negated an essential element of [Appellant’s] claim by
showing that [Appellant] cannot prove how long the alleged defective
condition was present, which is necessary to prove constructive notice in
this case.

The Court further finds that there was no specific duty required of
[Appellee] in checking the automatic doors at issue other than what the
record shows [Appellee] did. A defendant using due care would not have
discovered the alleged dangerous condition even assuming it was present.

Appellant appeals.

II. Issues

Appellant raises four issues for review, as stated in her brief:

I. Whether the trial court erred in granting summary judgment on
[Appellant’s] GTLA claim against [Appellee].

II. Whether the trial court erred in finding that there was no dangerous or
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 defective condition where there were disputed material facts as to
whether the automatic doors at issue constituted a dangerous or
defective condition.

III. Whether the trial court erred in finding that if a dangerous or defective
condition existed, it was a latent condition, where there were genuine
issues of material fact as to whether [Appellee] in exercising its duty to
maintain reasonably safe premises would have learned of the
dangerous or defective condition by making a reasonable inspection as
required to maintain the door in good working order.

IV. Whether the trial court erred in finding that [Appellee] negated the
essential element of actual or constructive notice where there were
genuine issues of material fact as to… whether there was constructive
notice and [Appellee] admitted that it owed a duty to [Appellant].

III. Standard of Review

Summary judgment is appropriate when “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. 56.04. We review a trial court’s ruling on
a motion for summary judgment de novo, without a presumption of correctness. Rye v.
Women’s Care Center of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015) (citing
Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997)). “In doing so, we make a fresh
determination of whether the requirements of Rule 56 of the Tennessee Rules of Civil
Procedure have been satisfied.” Id. (citing Estate of Brown, 402 S.W.3d 193, 198 (Tenn.
2013)).

IV. Analysis

In order to prevail on a negligence claim, a plaintiff must provide evidence to
establish the following elements: (1) a duty of care owed by defendant to plaintiff; (2) a
breach of that duty of care; (3) an injury or loss; (4) cause in fact; and (5) proximate or
legal cause. King v. Anderson Cnty., 419 S.W.3d 232, 246 (Tenn. 2013). In premises
liability actions, such as the case at bar, a premises owner’s duty is to exercise
“reasonable care with regard to social guests or business invitees in the premises. The
duty includes the responsibility to remove or warn against latent or hidden dangerous
conditions on the premises of which one was aware or should have been aware through
the exercise of reasonable diligence.” Rice v. Sabir, 979 S.W.2d 305, 308 (Tenn. 1998).
“Liability in premises liability cases stems from superior knowledge of the condition of
the premises.” McCormick v. Waters, 594 S.W.2d 385, 387 (Tenn. 1980). Nonetheless,
“[b]usiness proprietors are not insurers of their patrons’ safety. However, they are
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required to use due care under all circumstances.” Blair v. W. Town Mall, 130 S.W.3d
761, 764 (Tenn. 2004) (citing Martin v. Washmaster Auto Ctr., U.S.A., 946 S.W.2d 314,
318 (Tenn. Ct. App. 1996)). Because of a property owner’s superior knowledge, he or
she has “the responsibility of either removing, or warning against, any dangerous
condition on the premises of which the property owner is actually aware or should be
aware through the exercise of reasonable diligence.” Parker v. Holiday Hosp.
Franchising, Inc., 446 S.W.3d 341, 350 (Tenn. 2014) (citing Eaton v. McLain, 891
S.W.2d 587, 594 (Tenn. 1994)). As the Tennessee Supreme Court has made clear, for a
plaintiff to prevail on a claim of premises liability, in addition to the elements of
negligence, the plaintiff must establish that:

1) the condition was caused or created by the owner, operator, or his agent,
or

2) if the condition was created by someone other than the owner, operator,
or his agent, that the owner or operator had actual or constructive notice
that the condition existed prior to the accident.

Blair, 130 S.W.3d at 764.

It is undisputed that Appellee is a governmental entity; therefore, this case is
governed by the premises liability principles enumerated in the GTLA. Pursuant to the
GTLA, “all governmental entities shall be immune from suit for any injury which may
result from the activities of such governmental entities wherein such governmental
entities are engaged in the exercise and discharge of any of their functions, governmental
or proprietary.” Tenn. Code Ann. § 29-20-201. However, the statute specifies certain
circumstances in which governmental immunity is removed. Davis v. City of Cleveland,
709 S.W.2d 613, 615 (Tenn. Ct. App. 1986). Specifically, at issue in this case, Tennessee
Code Annotated Section 29-20-204 provides that:

(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 in addition to the procedural
notice required by § 29-20-302 [repealed].

To address whether the trial court erred by granting summary judgment in favor of
Appellee, pursuant to the above statute, this Court must consider these two issues: (1)
whether the alleged defect in the automatic door was latent; and (2) whether the Appellee
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had actual or constructive notice of the alleged defect.

The trial court found that even if the condition was “dangerous or defective,” the
condition was latent, and, therefore, governmental immunity was not removed pursuant
to Tennessee Code Annotated Section 29-20-204(b). The Tennessee Supreme Court has
defined a “latent defect,” as used in the GTLA, as a “hidden or concealed defect…. which
could not be discovered by reasonable and customary inspection.” Hawks v. City of
Westmoreland, 860 S.W.2d 10, 17 (Tenn. 1997).

In reaching its decision on the motion for summary judgment, the trial court cited
the following deposition testimony: (1) several individuals, including Mark Jones, the
Hospital’s Director of Plant Operations; Earl Bowman, the Hospital’s maintenance
mechanic; Tony Warren, a security guard; and Don Thompson, an automatic door
technician, testified that no other Hospital patron reported any similar incidents with the
door; (2) Mr. Warren also testified that security personnel monitored the door at all times
but never observed a problem with the door; and (3) Messrs. Bowman and Jones
inspected the door after Ms. Templeton’s injury, and they observed no problems with the
door. Nonetheless, Appellant contends that Appellee failed to properly inspect the
automatic door. Specifically, Appellant cites the deposition testimony of her expert
witness, Warren Davis, who holds a Ph.D. in Physics. Dr. Davis opined that: (1) Ms.
Templeton’s fall was caused by motion and/or presence detection sensors that may have
been “mal-aimed” or may have had a design defect; (2) the Hospital failed to properly
test the automatic door at issue to ensure that it was safe; and (3) proper testing would
have prevented Appellant’s accident. Dr. Davis’ report stated that, had Appellee
performed the safety inspections recommended by Dr. Davis “each and every day, then
more likely than not problems with the sensors would have been discovered and
corrected prior to Ms. Templeton’s injury.” Dr. Davis further opined that the safety test
used by the Hospital maintenance employees was a simple “walk through test,” where the
employees simply walked through the doors and observed the doors opening and closing.
Dr. Davis testified that the owner’s manual for the automatic door provided instructions
for conducting a daily “parallel walk test.” Conducting such a “parallel walk test,” Dr.
Davis opined, would have revealed the defect in the “motion and/or presence detection
sensors.” Dr. Davis also stated that the safety decal, which is affixed to the automatic
door, provides instructions for a proper daily safety check.4

4
The decal instructs that a daily safety check should proceed as follows:
1. Walk toward the door at a normal pace. The door should open when you are about 4
feet from the door.
2. Stand motionless on the threshold for at least 10 seconds. The door should not close.
3. Move clear of the area. The door should remain open for at least 1.5 seconds and
should close slowly and smoothly.
4. Repeat steps 1 through 3 from the other direction if the door is used for two way
traffic.
5. Inspect the floor area. It should be clean with no loose parts that might cause user to
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 The complete depositions of the Hospital maintenance employees are not included
in the record, but portions of the depositions are included in Appellee’s motion for
summary judgment. Earl Bowman, a maintenance mechanic, testified that he inspected
the door after Ms. Templeton’s accident. His inspection consisted of: (1) walking
through the door; (2) watching the doors open and close; (3) observing the Hospital
patrons walk through the door; (4) listening for noises from the door; and (5) inspecting
the track of the door. He stated that his inspection revealed that “the door was
functioning fine.” Mr. Thompson, who is an American Association of Automatic Door
Manufacturers (“AAADM”) certified automatic door technician, serviced the doors on
January 14, 2013, which was approximately eight months before Ms. Templeton’s
accident.5 Mr. Thompson stated that a proper inspection consisted of the process outlined
on the door safety decal, and the doors passed this inspection without any problems. On
September 26, 2014, Mr. Thompson conducted additional work on the doors and replaced
the door sensors; from the record, it is unclear if he also inspected the doors at this time.
Mr. Thompson testified, in relevant part, as follows:

Q. Is it your experience if a sensor or a door is malfunctioning and striking
people, not picking up, that it would continually do it versus just do it once
and never do it again?

A. Yes, it would continually do it.

Q. So it’s not something that’s gonna happen once and then never do it
again for a year later?

A. I wouldn’t think so.

From the evidence, it appears that the Hospital conducted a “reasonable inspection” of
the automatic door at issue. Hawks v. City of Westmoreland, 860 S.W.2d 10, 17 (Tenn.
1997). However, this conclusion does not end our analysis. Our caselaw instructs that
the issue of constructive notice is intertwined with the question of whether a condition is
latent. McCormick v. Warren Cnty. Bd. of Educ., No. M2011-02261-COA-R3-CV,
2013 WL 167764, at *7 (Tenn. Ct. App. Jan. 15, 2013) (“[T]he question of constructive
notice of a defective or dangerous condition is related to the question of whether the

trip or fall. Keep traffic path clear.
6. Inspect door’s overall condition. The appropriate signage should be present.
7. Have the door inspected by an [American Association of Automatic Door
Manufacturers] certified inspector at least annually.
5
As stated by the door decal, quoted supra, the automatic doors should be inspected by a door
technician at least once per year. Dr. Davis testified that, at its last service date, Tri-State failed to affix
an additional inspection decal on the door. Without the inspection decal, Dr. Davis stated he was “very
suspect of how [Mr. Thompson] would have done [the inspection]…. [t]here was no claim, no evidence
that a proper AAADM certified annual compliance inspection was ever done on this door.”
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condition constitutes a latent defective condition; the two are essentially flip sides of the
same coin.”); see also Hawks, 960 S.W.2d at 16 (“Proof that a governmental entity failed
to adequately inspect property or improvements which it owned and controlled is directly
relevant to the question of whether it had constructive notice of the dangerous or
defective condition resulting in injury.”).

Appellant argues that the trial court erred by finding that Appellee was immune
from suit pursuant to the GTLA because Appellee had no constructive notice of the
alleged dangerous or defective condition.6 Tenn. Code Ann. § 29-20-204(b). This Court
has defined “constructive notice” as follows:

Constructive notice… is defined as “information or knowledge of a fact
imputed by law to a person (although he may not actually have it) because
he could have discovered the fact by proper diligence, and his situation was
such as to cast upon him the duty of inquiring into it.” Parker v. Holiday
Hosp. Franchising, Inc., 446 S.W.3d 341, 351-52 (Tenn. 2014) (quoting
Hawks[], 960 S.W.2d [at] 15[]). Constructive notice may be established by
showing that a dangerous or defective condition existed for such a length of
time that a property owner, in the exercise of reasonable care, should have
become aware of it. Parker, 446 S.W.3d at 352 (citing Simmons v. Sears,
Roebuck & Co., 713 S.W.2d 640, 641 (Tenn. 1986)). Constructive notice
may also be established by showing that the dangerous condition resulted
from “‘a pattern of conduct, a recurring incident, or a general or continuing
condition.’” Parker, 446 S.W.3d at 352 (quoting Blair v. West Town Mall,
130 S.W.3d 761, 765 (Tenn. 2004)).

Fowler v. City of Memphis, 514 S.W.3d 732, 737-38 (Tenn. Ct. App. 2016).
Additionally, “the Tort Liability Act requires notice of the actual defective or dangerous
condition alleged to have caused the loss.” Champlin v. Metro. Gov’t of Nashville, No.
M2007-02158-COA-R3-CV, 2009 WL 1065937, at *5 (Tenn. Ct. App. Apr. 20, 2009))
(emphasis added). Accordingly, Appellant must show that the Hospital had notice of the
particular dangerous condition at issue, i.e., the automatic door’s failure to open when
Ms. Templeton approached the door from a parallel trajectory. See Helton v. Knox
Cnty., 922 S.W.2d 877, 882 (Tenn. 1996) (considering whether “a particular site” on a
highway bridge was defective or dangerous); Ogilvie v. Metro. Gov’t of Nashville, No.
01-A-01-9709-CV-00466, 1998 WL 272793, at *2 (Tenn. Ct. App. May 29, 1998)
(finding that a particular location on a sidewalk was not defective or dangerous); Kelley
v. City of Rockwood, 934 S.W.2d 58, 64 (Tenn. Ct. App. 1996) (listing the factors in

6
Although the GTLA removes immunity for a governmental entity’s actual or constructive
notice, Appellant stated in her response to Appellee’s motion for summary judgment that she was
proceeding on a theory of constructive notice only. Therefore, our analysis only considers the issue of
constructive notice.
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determining whether a specific intersection was defective or dangerous).

Regarding the alleged dangerous or defective condition, Dr. Davis testified, in
pertinent part, as follows:

A. It’s not visible. It’s not easily seen. And it also requires a special
circumstance, in this case, a trajectory that’s more or less parallel to the
face of the door in order to expose the problem.

***

Q. This is not something like a spill on the floor or something that you can
see with your own eyes; is that what you’re saying?

A. That’s correct. The example I gave, suppose the presence sensor isn’t
working or a hold-open beam isn’t working. You can’t see that immediately
and it’s entirely possible to use the door many, many times in such a way
that you’ll never see the door behave in any way that gives you a clue that
that presence sensor or whatever it is is [sic] not working.

Again, the record is devoid of evidence of recurring incidents with this automatic door or
any of the Hospital’s automatic doors. Nonetheless, Dr. Davis stated that “the door…
could be—have occasionally struck people, but… [they] never reported it. So we don’t
know for sure that the door never behaved improperly.” This bare assertion, without
corroboration, does not create a material dispute of fact as to any previous incidents with
the door. Additionally, Dr. Davis stated that he was not able to ascertain the duration of
the defect or the cause of the alleged problem with the automatic door. He testified:

Q. … You don’t know when that failure of the presence and motion
detection zone first started; is that correct?

A. That’s correct.

Q. And you also don’t know what caused the potential causes?

A. Correct.

The only allegation in the record to support a conclusion that the Hospital had
constructive notice of a defective or dangerous condition, i.e., that Appellee failed to
exercise reasonable care to discover the dangerous or defective condition, Blair, 130
S.W.3d at 764, is Dr. Davis’ criticism of the Hospital’s inspections of the door by its
maintenance employees. As Dr. Davis opined:

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 Q. You testified in the past that daily safety checks even if done properly
would not identify some problems with doors; is that fair to say?

A. Yes. There are circumstances in which it would not identify a problem,
yes.

Q. You think this case is different?

A. Well, if it’s a proper daily safety check and it includes that walk parallel
to the face of the door which is in a proper daily safety check and in the
daily safety check in the [automatic door] owner’s manual, it definitely
would have exposed the problem.

***

Q. Should the door have worked when a pedestrian approaches that door
from a parallel position?

A. Yes. That’s quite evident from the standard itself.

Turning to the standard that Dr. Davis cites above, the safety check outlined in the
owner’s manual instructs to “[w]alk parallel to the door face to check that the detection
pattern is at least as wide as the door opening. This test should be performed about 2 ½
feet from the door face.” (emphasis added). The AAADM’s daily safety check instructs
to “observe the traffic coming to the door… from straight on and not from an angle.”
(emphasis added). The standard relied on by Dr. Davis does not recommend testing to
determine that the door detects motion immediately parallel and next to the door.
Instead, the owner’s manual recommends testing the motion-sensing capability parallel to
the door at a distance of at least two and one-half feet from the door face and not at an
angle immediately parallel to the door. In his expert report, Dr. Davis described Ms.
Templeton’s path to the door as follows: “Ms. Templeton approached the subject door at
a steep angle from the left interior side. That is, Ms. Templeton approached along a
trajectory close to and nearly parallel to the interior face of the door.” (emphasis added;
footnotes omitted). The surveillance video included in the record supports this
description. From the video, Appellant approached directly beside the face of the door
then stepped at an approximately ninety-degree angle into the automatic sliding door.
Viewing Ms. Templeton’s path against the type of “parallel walk” testing proposed by
Dr. Davis (and recommended by the AAADM), even if Appellee had conducted the
recommended testing, there is no evidence in the record to indicate that Appellee would
have discovered the alleged dangerous or defective condition that allegedly caused
Appellant’s injury.

In another case where a governmental entity had no notice of any prior accidents
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or complaints of an alleged defect, a cyclist brought a GTLA negligence claim against the
City of Nashville when she was injured due to a defect in a section of the sidewalk that
allegedly caused her bicycle to crash. Champlin, 2009 WL 1065937, at *3-4. The
cyclist proffered expert depositions and a report detailing the sidewalk’s noncompliance
with federal standards, but because the city had no prior accidents or complaints at the
location of the fall, this Court declined to reverse the trial court’s grant of summary
judgment in favor of the City of Nashville. Id. Likewise, in Kirby v. Macon County, 892
S.W.2d 403 (Tenn. 1994), the Tennessee Supreme Court held that the governmental
entity had no constructive notice of a dangerous condition. In Kirby, icy weather caused
the plaintiff’s car to slide off a county bridge that did not have wooden wheelguards in
place. Id. at 404. To demonstrate that the county had notice of the dangerous condition,
the plaintiff introduced several annual reports from the Tennessee Department of
Transportation, wherein it had determined that the bridge was in “poor” or “critical”
condition. The Department’s report also noted that the bridge’s wheelguards were
decaying or damaged. Id. at 405. However, county officials replaced the wheelguards
three weeks before the accident and, since the repairs, the county had received no notice
of any problems on the bridge or, particularly, with the wheelguards. Based on this
evidence, the Court held that the county did not have constructive notice of the condition
and, therefore, was immune to suit. Id. at 409.

In the case at bar, in the absence of facts showing that Appellee could have
discovered, by a reasonable inspection, the alleged dangerous or defective condition that
caused Appellant’s injuries, there is no material evidence from which the trier of fact
could conclude that the Hospital’s immunity should be removed. Accordingly, we affirm
the trial court’s order granting summary judgment in favor of Appellee.

V. Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed. The case is
remanded for such further proceedings as may be necessary and are consistent with this
opinion. Costs of the appeal are taxed to the Appellant, Sue Ann Templeton and her
surety, for all of which execution may issue if necessary.

_________________________________
KENNY ARMSTRONG, JUDGE

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