dissenting.
I respectfully dissent.
I agree that under § 29-20-205 the county is still immune from suit for the failure of an employee to make an inspection. However, under § 29-20-203 or § 29-20-204 the county may be liable if the county had “constructive and/or actual notice” of the dangerous, unsafe, or defective condition (I assume that under § 29-20-204, a dangerous or defective condition is no longer “latent” if the county has constructive or actual notice of it).
The fact that under § 29-20-205(4) immunity is not removed for the failure to make an inspection does not defeat the removal of immunity under the two preceding sections, nor does it defeat the imposition of constructive notice on the county when, as in this case, the county had the duty to inspect.
T.C.A. § 29-20-203 provides:
(a) Immunity from suit of a governmental entity is removed for any injury caused by a defective, unsafe, or dangerous condition of any street, alley, sidewalk or highway, owned and controlled by such governmental entity. The terms “street” and “highway” shall include traffic control devices thereon.
(b) This section shall not 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.
The trial judge found that the bridge was in a defective, unsafe, and dangerous condition at the time of the accident; that the defendants had adequate time and opportunity to discover the dangerous condition; and that the defendants had constructive notice of the dangerous condition. If we sustain those findings, which we must unless the evidence preponderates against them, Rule 13(d) Tennessee Rules of Appellate Procedure, then the plaintiffs have proved a claim that comes under § 29-20-203.
In my opinion the evidence does not preponderate against any of the quoted findings of the trial judge. The only testimony on the subject of the condition of the bridge shows that the bridge was defective. The plaintiff testified that “one of the seals (sic) or beams holding it ... had rotted,” and there is no evidence to dispute that testimony. Since wooden beams do not rot overnight, I think the evidence does not preponderate against the trial judge’s finding that the county had adequate time and opportunity to discover the dangerous condition.
That presents us squarely with the question of notice, “constructive and/or actual.” There is no proof that the defendants had actual notice of the condition of the bridge. So the critical question is whether they had constructive notice. I would hold that they did.
*494My conclusion that the county had constructive notice of the dangerous condition of the bridge is not based on the fact that the county had a crew in the area shortly before the date of the accident or that the defect was obvious. There is simply not enough proof in the record to show that the county got notice through these channels. Rather my conclusion is based on the fact that the county had a duty to inspect the bridge and is charged with notice of what the inspection would reveal. In Black’s Law Dictionary Third Edition at page 1258, the various types of notice are discussed:
Notice is actual or constructive. Actual notice has been defined as notice expressly and actually given, and brought home to the party directly ... The term “actual notice,” however, is generally given a wider meaning as embracing two classes, express and implied; the former includes all knowledge of a degree above that which depends upon collateral inference, or which imposes upon the party the further duty of inquiry; the latter imputes knowledge to the party because he is shown to be conscious of having the means of knowledge. In this sense actual notice is such notice as is positively proved to have been given to a party directly and personally because the evidence within knowledge was sufficient to put him upon inquiry ... Constructive notice is 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 ...
Notice is also further classified as express or implied. Express notice embraces not only knowledge, but also that which is communicated by direct information, either written or oral, from those who are cognizant of the fact communicated ... Implied notice is one of the varieties of actual notice (not constructive) and is distinguished from “express” actual notice. It is notice inferred or imputed to a party by reason of his knowledge of facts or circumstances collateral to the main fact, of such a character as to put him upon inquiry, and which, if the inquiry were followed up with due diligence, would lead him definitely to the knowledge of the main fact
“Constructive notice” is a presumption of law, making it impossible for one to deny the matter concerning which notice is given, while “implied notice” is a presumption of fact, relating to what one can learn by reasonable inquiry, and arises from actual notice of circumstances and not from constructive notice ... Or as otherwise defined, implied notice may be said to exist where the fact in question lies open to the knowledge of the party, so that the exercise of reasonable observation and watchfulness would not fail to apprise him of it, although no one has told him of it in so many words
The Tennessee cases, sometimes confuse constructive notice with implied notice. However, in Levins v. W.O. Peeples Grocery Company, 38 S.W. 733 (Tenn.Chan.App.1896), the court said:
While it is true that whatever puts a party on inquiry amounts to notice, provided knowledge of the relevant facts would be obtained by the exercise of ordinary diligence ... nevertheless the party will not be charged with constructive notice unless the circumstances are such that the court can say that it was his duty to acquire the knowledge in question, and that his failure to acquire it was the result of culpable negligence.
In 58 Am.Jur.2d Notice § 6, constructive notice is defined as:
Constructive notice is the law’s substitute for actual notice, intended to protect innocent persons who are about to engage in lawful transactions. It is a legal inference from established facts and, like other legal presumptions, does not admit of dispute. It is in its nature no more than evidence of notice, the presumption of which is so violent that the court will not even allow of its being controverted. Constructive notice has sometimes been *495defined by statute as notice imputed to a person not having actual notice, and it has been said that an essential part of the presumption is that the person sought to be charged is in fact ignorant of the facts. Constructive notice is a mere fiction, treated as actual notice and knowledge for certain purposes, but is not, in point of literal fact, either notice or knowledge.
The superintendent of the Wayne County Road System testified that it was the duty of his department to inspect the county roads and bridges. Since the county had a duty to inspect the bridge and the opportunity to discover its defective condition, I would hold that the county had constructive notice of any defect which an inspection would reveal. Therefore, the county would be liable under T.C.A. § 29-20-203.
As I see it, this is quite another thing from the liability of the county for the failure of an employee to make an inspection, for which under T.C.A. § 29-20-205(4) the county is still immune. Here we would impose liability not for the failure to make an inspection; instead the liability is for the dangerous condition of the streets and highways, notice of which the law imposes on the county arising from the duty to inspect.
Our act is almost identical to the Utah Governmental Tort Liability Act. In Sanford v. University of Utah, 26 Utah 2d 285, 488 P.2d 741 (1971), the Utah Court interpreted their act in a case where the defendants insisted that the retention of immunity for an action based on the failure of an employee to inspect modified the previous two sections and retained immunity if any of the acts complained of involved an inspection. The Utah Court resolved that question adversely to the government. I think that is the correct decision and would so hold in the present case.
For these reasons I would affirm the award of judgment by the trial court.
Therefore, I respectfully dissent.