IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
(HEARD AT COLUMBIA)
TRACY HAWKS and DALE HAWKS, ) FOR PUBLICATION
) Filed: December 31, 1997
Plaintiffs-Appellees, )
) SUMNER CIRCUIT
v. )
) Hon. Thomas Goodall,
CITY OF WESTMORELAND, ) Judge
)
Defendant-Appellant. ) Appeal No.
) 01S01-9704-CV-00083
FILED
December 31, 1997
Cecil W. Crowson
Appellate Court Clerk
For Plaintiffs-Appellees: For Defendant-Appellant:
Bruce N. Oldham J. Russell Farrar
Oldham & Dunning, LLC Deborah R. Sowell
Gallatin, Tennessee Farrar & Bates
Nashville, Tennessee
OPINION
COURT OF APPEALS AFFIRMED. DROWOTA, J.
The primary issue in this appeal is whether the City of Westmoreland had
“constructive notice“ of the dangerous and defective condition of the fire hydrants
which resulted in the total fire loss of the home of the plaintiffs, Tracey and Dale
Hawks. Finding that the inoperable fire hydrants would have been discovered had
the City performed an adequate inspection, the lower courts charged the City with
constructive notice of the dangerous and defective condition and held it liable to the
plaintiffs for the damages that could have been avoided had the fire hydrants been
operable. After carefully considering the record, as well as the briefs and argument
of counsel, we agree that the City should be charged with constructive notice and,
therefore, affirm the judgment of the Court of Appeals upholding the trial court’s
judgment in favor of the plaintiffs. 1
BACKGROUND
On October 23, 1993, at approximately 3:45 a.m., the Westmoreland
Volunteer Fire Department was dispatched to extinguish a fire of unknown origin at
the home of the plaintiffs, Tracey and Dale Hawks, located at 1135 Rainbow Circle
in the City of Westmoreland. The plaintiffs were out of town when the fire occurred.
Though a portion of the roof was ablaze when the firefighters arrived, the fire
primarily was confined to the middle of the house. Utilizing the water from the tanks
on the fire trucks, the fire was brought under control within fifteen to thirty minutes of
the firefighters’ arrival. When the water supply in the tanks was exhausted, the
firefighters attempted to obtain water from the two fire hydrants nearest the burning
1
Oral argu me nts w ere h eard in this case on October 8, 1997 in Colum bia, Maury
Coun ty,Tenne ssee, a s part of th is Court’s S.C.A.L .E.S. (Supreme Court Advancing Lega l Education
for Students ) project.
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home. However, the hydrants yielded no water because an underground valve in the
feeder pipe for each was closed. Although the firefighters had with them tools to
open the valve in the hydrants, they did not have with them the six foot wrench which
was required to open the underground valves. When it was not being used by
maintenance employees of the City water system, that tool was kept at the public
works building.
When the firefighters realized that the hydrants were inoperable, they sent
tankers to the civil defense building to obtain more water, called a neighboring fire
department for backup assistance, and dispatched a city employee to retrieve the
special wrench to open the underground valves. While the firefighters waited for
additional water, the fire gained momentum. The home was almost totally destroyed
by fire before either additional water or the special wrench to open the valves arrived
at the scene.
Thereafter, the plaintiffs brought this lawsuit against the City of Westmoreland
pursuant to the Tennessee Governmental Tort Liability Act, specifically Tenn. Code
Ann. § 29-20-204 (1980 Repl.), which provides as follows:
(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.
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The plaintiffs sought damages from the City for the total fire loss of their home
which they alleged resulted from the dangerous or defective condition of the fire
hydrants. While the parties agreed that the City had no actual knowledge that the fire
hydrants were inoperable, the plaintiffs alleged that the City was not immune from
suit because it had constructive notice of the dangerous or defective condition. The
City denied that it had constructive notice and also claimed that the closed valves and
inoperative hydrants were latent defective conditions for which it retained immunity
from suit under the statute.
The proof at trial established that the valves which were closed are located in
an underground chamber approximately twelve to eighteen inches from the fire
hydrants, between the main waterline and the hydrants. The chamber is covered by
a small cap about the size of a coffee can. To close the valve, it is necessary to pry
off the cap, insert the special wrench, and turn the valve clockwise. The valves can
not be closed by natural causes, and the special wrench, which is not an item widely
available to the public, must be used to effect the closure. The underground valves
are only closed by City employees if the adjacent hydrants are leaking and in need
of repair. Otherwise, the underground valves should be open. It was undisputed that
the valves should have been open on October 23, 1993, when the plaintiffs’ home
was completely destroyed by fire.
The parties stipulated that the hydrants and water line at issue in this appeal
were installed as part of a water system improvement project which was completed
in May of 1991 and which was constructed, pursuant to a contract, for the City by
Eatherly Construction Company. John Coleman Hayes, P.C., (“Hayes”) was
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employed as the inspector for the improvement project, and Danny Hawker, an
employee of Hayes, performed the inspection. Although Hawker testified by
deposition that all the valves near the hydrants were in the open position when he
completed the inspection of the project, he admitted that he did not test each
individual hydrant. In addition, Hawker’s log book reflected that a leak was detected
at Rainbow Circle on February 29, 1991. On March 1, the log book reflected that
three leaks had been found at that location. Additionally, the log book reflected that
only one of the leaks had been repaired. Hawker testified that the other two leaks
were eventually repaired even though the log book contained no notation. Hawker
admitted, however, that if the fire hydrants themselves were leaking, he would have
closed the underground valves to conduct the inspection and test of the system.
The plaintiffs also presented proof to show that the City of Westmoreland was
required by State law2 to establish and maintain an adequate flushing program. The
purpose of the flushing program is to insure that the chlorine level in the water supply
system is sufficient to kill bacteria and provide fresh water. The flushing program is
not designed or intended to test and insure that fire hydrants are functioning properly.
Under the state law, each municipality has the discretion of choosing the method and
frequency of flushing. The method and frequency used for flushing the water system
in Westmoreland varied.
The plaintiffs offered testimony to indicate that the flushing program utilized
by the City was inadequate because the chlorine level in the water was not tested at
2
See,Chapter 1200 -5-1 , Reg ulatio ns fo r Pub lic W ater S ystem s and Drink ing W ater Q uality,
Division of Water Supply, Tennessee Department of Environment and Conservation.
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each individual hydrant on a regular basis. Other testimony indicated that because
the hydrants were on an open line, measuring the chlorine residual levels at the end
of the line was sufficient. However, two city employees testified that, had the flushing
program been conducted correctly, the City would have discovered the closed
underground valves and the inoperable hydrants.
In addition, Larry Akins, who is state certified in water distribution and who
currently maintains the flushing program for the City of Westmoreland testified that
he measures the chlorine residual level at each of the sixty fire hydrants in the City
once every three months. In response to questions from the trial court, Akins opined
that the chlorine residual level in the water should be measured at each individual fire
hydrant at least once per year. Akins stated that under no circumstances would he
forego testing the chlorine level at each hydrant for two years. In light of the fact that
the two hydrants at issue in this case had been in existence for approximately two
and one-half years when this fire occurred, Akins testified that the City should have
known that the underground valves next to the hydrants were closed.
Based upon the proof summarized above, the trial court found that the two fire
hydrants nearest the plaintiffs home were in a dangerous and defective condition at
the time of the fire on October 23, 1993, and, as a result, the plaintiffs had sustained
additional damage to their home which otherwise could have been avoided. The trial
court concluded that the City had constructive notice of the condition of the fire
hydrants, and found the other defenses raised by the City inapplicable. As a result,
the trial court found the City liable and awarded a judgment to the plaintiffs in the
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amount of $50,000.3 The Court of Appeals affirmed the trial court’s judgment.
Thereafter, we granted the City permission to appeal and, for the reasons that follow,
now affirm.
GOVERNMENTAL TORT LIABILITY ACT
The doctrine of sovereign immunity derives from “feudal notions of the divine
right of kings. In feudal England the King was at the very pinnacle of the power
structure and was answerable to no court since ‘the King can do no wrong.’” Cooper
v. Rutherford County, 531 S.W.2d 783, 786 (Tenn. 1975) (Henry, J., dissenting). The
doctrine has been a part of the common law of Tennessee for more than a century4
and provides that suit may not be brought against a governmental entity unless that
governmental entity has consented to be sued. Lucius v. City of Memphis, 925
S.W.2d 522, 525 (Tenn. 1996). Indeed, this longstanding rule of sovereign immunity
is recognized by the Tennessee Constitution which provides, “[s]uits may be brought
against the State in such manner and in such courts as the Legislature may by law
direct.” Art. I, § 17, Tenn. Const.
In 1973, the General Assembly enacted the Tennessee Governmental Tort
Liability Act (“the GTLA”), which governs claims against counties, municipalities, and
other local governmental agencies, but does not apply to state government. Lucius,
3
The trial court found the plaintiffs had sustained real and personal property damage in the
amount of $58,500 but awarded a judgment for $50,000, the statutory maximum. Tenn. Code Ann. §
29-20-403 (1997 Su pp.).
4
See Cru se v. C ity of C olum bia, 922 S.W .2d 492, 495 (Tenn. 1996 ) (citing cases).
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925 S.W.2d at 525. The Act initially reaffirms the general common law rule of
governmental immunity, stating, in pertinent part, as follows:
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 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(a) (1980 Repl. & Supp. 1997). The Act then removes
governmental immunity in limited and enumerated instances for certain injuries. Ezell
v. Cockrell, 902 S.W.2d 394, 399 (Tenn. 1995); See e.g. Tenn. Code Ann. § 29-20-
202(a) (1980 Repl. & Supp. 1997) through Tenn. Code Ann. § 29-20-205 (1980 &
Supp. 1997); see also Lucius, 925 S.W.2d at 525. The GTLA, therefore, is a
comprehensive scheme which generally governs tort actions against governmental
entities. Cruse, 922 S.W.2d at 496.
As previously stated, the courts below found the City of Westmoreland
amenable to suit in this case pursuant to Tenn. Code Ann. § 29-20-204 (1980 Repl.),
which provides as follows:
(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.
In this Court, the City argues that because it had neither actual nor
constructive notice of the dangerous or defective condition of the fire hydrants, it is
not liable to the plaintiffs. The City argues that the lower courts erred in basing their
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finding of constructive notice upon the City’s failure to inspect the hydrants since
governmental immunity under the GTLA specifically is not waived for injuries arising
“out of a failure to make an inspection, or by reason of making an inadequate or
negligent inspection of any property.” Tenn. Code Ann. § 29-20-205(4) (1980 Repl.
& Supp. 1997). The City also argues that it is not liable to the plaintiffs because the
closed valves and inoperable fire hydrants were “latent defective conditions” for
which it retains immunity from suit under the GTLA.
The plaintiffs respond that the City should be charged with constructive notice
since the closed valves and inoperable hydrants would have been discovered had the
City discharged its duty to inspect the hydrants following their installation and over the
course of the ensuing two and one-half years. While agreeing that the City may not
be held liable for injuries resulting from a failure to inspect, the plaintiffs nevertheless
argue that the City’s failure to inspect can and should be considered in determining
whether the City had constructive notice of the dangerous or defective condition
which resulted in the loss of their home. The plaintiffs also argue that this case does
not involve “latent defective conditions” for which the City retains immunity because
the closed valves and inoperable fire hydrants could have been discovered by a
reasonably careful inspection.
In resolving these issues, we review the trial court’s findings of fact de novo
upon the record, accompanied by a presumption of the correctness of the findings
unless the evidence preponderates against the findings. We review questions of law
de novo with no presumption of correctness. Tenn. R. App. P. 13(d); Lucius, 925
S.W.2d at 524.
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A. Constructive Notice
Under Tenn. Code Ann. § 29-20-204, the Legislature specifically made the
removal of governmental immunity conditional upon a plaintiff’s allegation and proof
that the governmental entity knew or should have known of the dangerous or
defective condition which caused the plaintiff’s injury. Smith v. City of Covington,
734 S.W.2d 327, 329 (Tenn. App. 1985). In other words, a plaintiff must allege and
prove that the governmental entity had either actual or constructive notice of the
dangerous or defective condition. Since the parties in this case have agreed that the
City did not have actual notice, we must determine whether the lower courts erred in
concluding that the City had constructive notice of the closed valves and inoperable
fire hydrants.
“Constructive notice” has been defined by this Court 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.’” Kirby v. Macon County,
892 S.W.2d 403, 409 (Tenn. 1994), quoting Black’s Law Dictionary, 1062 (6th ed.
1990). Applying that definition, a governmental entity will be charged with
constructive notice of a fact or information, if the fact or information could have been
discovered by reasonable diligence and the governmental entity had a duty to
exercise reasonable diligence to inquire into the matter. Applying that rule to the
circumstances of this case, it is clear that the lower courts correctly charged the City
of Westmoreland with constructive notice of the closed valves and inoperable fire
hydrants.
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Although the closed valves were not visible without removing the cover from
the underground chambers in which they were located, the City would have
discovered the valves were closed if it had fulfilled its duty to exercise reasonable
diligence. The fire hydrants were installed by direction of and contract with the City
as part of a water system improvement project. Once the project was completed, the
City engaged another company to test and inspect the project. The inspector
admitted, however, that each individual hydrant was not tested. Moreover, during the
inspection, three leaks were detected in the Rainbow Circle area of the City. The
inspector admitted that he would have closed the underground valves if, during the
test of the system, the fire hydrants were leaking. Though the inspector testified that
all of the leaks eventually were repaired, the log book reflects that only one of the
three leaks were repaired, leaving two leaks unrepaired and, potentially, two
underground valves closed. According to the trial evidence, the fire hydrants at issue
in this appeal were the only two inoperable fire hydrants in the Rainbow Circle area
and indeed, in the whole City of Westmoreland. This proof clearly supports the lower
courts’ finding that the City should have discovered the closed valves and inoperable
fire hydrants as a result of the initial inspection of the water system improvement
project and therefore should be charged with constructive notice of the dangerous or
defective condition. There is also proof in the record that the City would have
discovered the closed valves if it had followed proper flushing procedures as required
by state law. In sum, the proof fully supports and does not preponderate against the
lower courts’ finding that the City had constructive notice of the dangerous or
defective condition of the hydrants.
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The City contends that basing the finding of constructive notice upon its failure
to inspect the hydrants is error because governmental immunity is not waived for
injuries arising “out of a failure to make an inspection, or by reason of making an
inadequate or negligent inspection of any property.” Tenn. Code Ann. § 29-20-205(4)
(1980 Repl. & Supp. 1997). We disagree. Section 205(4) provides immunity from suit
when a governmental entity negligently fails to discharge an existing duty to inspect
property not owned by the City, and thereafter, injuries arise from dangerous or
defective conditions on such property which would have been discovered had the
governmental entity conducted an adequate inspection. In evaluating whether a
plaintiff may establish constructive notice under Section 204 by proof that a
governmental entity failed to adequately discharge its duty to inspect, we are not
bound by Section 205(4) which provides immunity from suit for injuries resulting from
“a failure to make an inspection, or by reason of making an inadequate inspection.”
Any authority to the contrary is hereby overruled.5
Section 204, upon which the plaintiffs in this case rely, clearly provides that a
governmental entity is subject to suit for injuries that result from a dangerous or
defective condition existing on publicly owned and controlled property or
improvements if the governmental entity has actual or constructive notice of the
condition. 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. To hold as the City suggests, and preclude the plaintiffs from establishing
constructive notice under Section 204(b) by proof that the dangerous or defective
5
Jones v. City of Johns on City, 917 S.W .2d 687 ( Tenn . App. 199 5); Mow dy v. Ke lly, 667
S.W .2d 489 (Tenn. App. 198 3).
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condition would have been discovered had the governmental entity discharged its
duty to inspect the premises under its control, would have the effect of requiring proof
of actual notice in every case. Such an interpretation is contrary to the plain
language of Section 204 which allows a recovery upon a showing of either actual or
constructive notice. Therefore, basing the finding of constructive notice in this case
upon the plaintiffs’ proof that the City failed to inspect the fire hydrants is not error.
B. Latent Defective Conditions
The City also argues that it is immune from suit because the plaintiffs did not
prove that the closed valves and inoperable fire hydrants were patently defective
conditions rather than latent defective conditions. We disagree.
The most basic principle of statutory construction is to ascertain and give
effect to legislative intent. Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995).
Legislative intent is to be ascertained whenever possible from the natural and
ordinary meaning of the language used, without forced or subtle construction that
would limit or extend the meaning of the language. Carson Creek Vacation Resorts,
Inc. v. State, Dept. of Revenue, 865 S.W.2d 1, 2 (Tenn. 1993) (emphasis added).
If the legislative intent is expressed in a manner devoid of contradiction and
ambiguity, there is no room for interpretation or constructions, and courts are not at
liberty to depart from the words of the statute. Id. Where the language contained
within the four corners of a statute is plain, clear, and unambiguous, the duty of the
courts is simple and obvious, “to say sic lex scripta, and obey it.” Id., quoting Miller
v. Childress, 21 Tenn. (2 Hum.) 319, 321-22 (1841).
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The GTLA provides that “[i]mmunity is not removed for latent defective
conditions,” Tenn. Code Ann. § 29-20-204(b) (1980 Repl.), the Act does not
condition the removal of immunity upon proof that injury resulted from a patently
dangerous or defective condition. The City’s argument that immunity is removed only
if a plaintiff proves that the injuries resulted from a patently defective condition is
contrary to the plain language of the statute and is without merit.
Moreover, “latent defect” has been defined as “[a] hidden or concealed defect.
One which could not be discovered by reasonable and customary inspection.”
Black’s Law Dictionary, 794 (5th ed. 1979). The Utah Supreme Court, in construing
a statute which, like our own, provided that governmental “[i]mmunity is not waived
for latent defective conditions,” also held that a latent defect is “[a] defect which
reasonably careful inspection will not reveal.” Vincent v. Salt Lake County, 583 P.2d
105, 107 (Utah 1978). The closed valves and inoperable fire hydrants in this case
could have been discovered by reasonable and customary inspection. Accordingly,
as a matter of law, they were not latent defective conditions for which the City
retained immunity.
CONCLUSION
The evidence in this record supports the lower courts’ finding that the City had
constructive notice of the closed valves and inoperable fire hydrants which resulted
in the total fire loss of the plaintiffs’ home. Accordingly, the judgment of the Court of
Appeals upholding the trial court’s judgment in favor of the plaintiffs is hereby
affirmed.
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_______________________________________
FRANK F. DROWOTA III
JUSTICE
Concur:
Anderson, C. J.
Reid, Birch, Holder, JJ.
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