IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
May 29, 1998
DONNA S. OGILVIE )
) Cecil W. Crowson
Plaintiff/Appellant, ) Appellate Court Clerk
) Appeal No.
) 01-A-01-9709-CV-00466
VS. )
) Davidson Circuit
) No. 95C-1673
METROPOLITAN GOVERNMENT OF )
NASHVILLE AND DAVIDSON )
COUNTY, TENNESSEE, )
)
Defendant/Appellee. )
APPEALED FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE THOMAS W. BROTHERS, JUDGE
JOEL H. MOSELEY
MOSELEY & MOSELEY
Suite 300, One Church Street
101 Church Street
Nashville, Tennessee 37201-1609
Attorney for Plaintiff/Appellant
JAMES L. MURPHY
Director of Law
Department of Law of the Metropolitan
Government of Nashville and Davidson County
PHILIP D. BALTZ
Metropolitan Attorney
222 Third Avenue North, Suite 501
Nashville, Tennessee 37201
Attorney for Defendant/Appellee
AFFIRMED AND REMANDED
BEN H. CANTRELL, JUDGE
CONCUR:
TODD, P.J., M.S.
BUSSART, W., S.J.
OPINION
The plaintiff sued the Metropolitan Government of Nashville and
Davidson County, alleging that the dangerous and unsafe condition of a city sidewalk
caused her to fall and sustain personal injuries. After a bench trial, the Circuit Court
of Davidson County found that the sidewalk was not defective, unsafe, or dangerous
and that the plaintiff was more than fifty percent at fault. We affirm.
I.
On June 26, 1994, the plaintiff, in the company of her husband and son,
walked along the sidewalk on the south side of Union Street in Nashville. At some
point between Fifth and Sixth Avenues, she stumbled over a “lip” a little over one inch
high in the sidewalk. The lip resulted from the failure to build or maintain the sidewalk
flush with the top of a concrete underground chamber, the surface of which formed
part of the sidewalk. Ms. Ogilvie fell and sustained painful personal injuries.
II.
Because this is an action against the local government, the Tennessee
Governmental Tort Liability Act applies to the claim. After providing (or reiterating) a
general rule of immunity, Tenn. Code Ann. § 29-20-201(a), the Act removes the
immunity of a local government for injuries “caused by a defective, unsafe, or
dangerous condition of any street, alley, sidewalk or highway, owned or controlled by
such governmental entity. Tenn. Code Ann. § 29-20-203(a).1 Subsection (b) requires
as a precondition to liability that the governmental entity have notice, actual or
constructive, of the dangerous condition. The City does not deny that it had notice of
the condition or that the sidewalk was under its ownership and control.
1
Governmental immunity is removed for certain other torts by other sections of the Act. See
Tenn. Code Ann. § 29-20-202, 204, and 205.
-2-
The real question, then, is whether the sidewalk was defective, unsafe,
or dangerous. The trial judge held that it was neither, and relying in part on that
conclusion, he dismissed the claim. The question of what condition of a sidewalk will
make it defective, dangerous, or unsafe has troubled the courts for many years. Our
books contain numerous cases dealing with sidewalk irregularities from great to small.
In City of Memphis v. McCrady, 124 S.W.2d 248 (Tenn. 1938) the court held that a
two and one-half inch “lip” at an expansion joint in the sidewalk, over which the plaintiff
tripped in broad daylight, would not subject the city to liability. In Batts v. City of
Nashville, 123 S.W.2d 1099 (Tenn. App. 1939) the court surveyed a number of cases
that dealt with defects of various sizes and shapes in sidewalks or streets. The
defects ranged from a two and three-eighths inch difference between sections of a
sidewalk, McCormick v. City of Racine, 277 N.W. 646 (1938), to a three inch deep
hole in a sidewalk, Getzoff v. City of New York, 64 N.Y.S. 636 (1900), and in each
case the court held as a matter of law that the condition did not render the area
defective or dangerous.
In fairness, we should point out that the Tennessee cases all say that
liability does not depend on how high the irregularity is. No bright line can be drawn
on the size and depth of holes in the sidewalk beyond which the city would be liable.
The court in Batts summed up the rule in this way:
It would be impossible to derive a rule from the
numerous cases by which to fix the line of demarcation
between actionable size and depth of holes in streets and
sidewalks and nonactionable size and depth. The cases
all come back to the question of whether or not it could be
reasonably anticipated, by a reasonably prudent person,
that a traveler on the sidewalk or highway unexpectedly
encountering the obstruction or hole, would suffer injury,
or as some of the cases express it, would probably suffer
injury.
123 S.W.2d at 1104.
In City of Memphis v. McCrady, 124 S.W.2d 248, 249 (Tenn. 1938) the
court put it this way:
-3-
The municipality cannot be held as an insurer, nor can it
be charged with the duty to correct slight defects in
sidewalks resulting from inequality in the expansion joints,
produced by natural causes, where the inequality or
unevenness does not make a dangerous obstruction
calculated to produce injury to persons exercising
reasonable care. And so, where the evidence is
conflicting or the facts such as to authorize different
inferences as to whether the defect is a dangerous
obstruction calculated to cause injury, the case must be
submitted to the jury, but, where the defect or obstruction
is such that reasonable men would not differ in the
conclusion that the obstruction or defect was not
dangerous to travel in the ordinary modes by persons
exercising due care, a verdict should be directed.
The courts have consistently held that whether a particular site is
defective, unsafe, or dangerous, thereby removing governmental immunity, is a
question of fact. Coln v. City of Savannah, ____ S.W. ____ (Tenn. 1998); Helton v.
Knox County, 922 S.W.2d 877 (Tenn. 1996). And the factual determination involves
the analysis specified in Batts above.
The trial judge found that the sidewalk where the plaintiff fell was not
defective, unsafe, or dangerous. That finding comes to this court with a presumption
of correctness. Rule 13(d), Tenn. R. Civ. Proc. We cannot find that the evidence
preponderates against it.
III.
In what may or may not be a trend, the more recent cases have
assumed that more minor deviations in the surface of the sidewalk are dangerous and
have focused on how comparative fault principles affect the duties of the respective
-4-
parties. See Coln v. City of Savannah, ____ S.W. ____ (Tenn. 1998);2 Broyles v. City
of Knoxville, No. 03A01-9505-CV-00166 (filed at Knoxville, Aug. 30, 1995). So, an
argument could be made that the older cases we have cited have been nullified by the
adoption of comparative fault. The Supreme Court decision in Coln v. City of
Savannah based its decision entirely on an analysis of the city’s duty (to do
something) to protect pedestrians who might encounter a deviation of several inches
in the sidewalk. One could assume that the courts should go through the duty
analysis in each case, and if a duty is found, the premises are automatically
dangerous for the purpose of removing the city’s immunity.
Even if we did that analysis in this case, however, the plaintiff would still
have to overcome the trial court’s additional finding that the plaintiff’s own negligence
was more than fifty percent of the cause of her injuries. See McIntyre v. Balentine,
833 S.W.2d 52 (Tenn. 1992). That finding is also presumed to be correct under Rule
13(d), Tenn. R. Civ. Proc.
The factors to be considered in assessing the fault of each party are set
out in Eaton v. McLain, 891 S.W.2d 587 (Tenn. 1994). They include but are not
limited to
(1) the relative closeness of the causal relationship
between the conduct of the defendant and the injury to
the plaintiff;
(2) the reasonableness of the party’s conduct in
confronting a risk, such as whether the party knew of the
risk, or would have known of it;
(3) the extent to which the defendant failed to
reasonably utilize an existing opportunity to avoid the
injury to the plaintiff;
(4) the existence of a sudden emergency requiring a
hasty decision;
2
The deviation in elevation from the brick pave rs to th e side walk in Coln v. City of Savannah was
three-eighths of an inch when the brick pavers w ere installed. By the time of the acciden t, however, the
deviation was several inches greater.
-5-
(5) the significance of what the party was attempting
to accomplish by the conduct, such as to save another’s
life; and
(6) the party’s particular capacities, such as age,
maturity, training, education, and so forth.
891 S.W.2d at 592.
When we consider these factors in light of the conditions under which
the plaintiff fell -- in broad daylight (although overcast), a Sunday afternoon when the
sidewalk was not crowded and the plaintiff’s attention was not distracted, the fact that
the defect was open and obvious -- we cannot find that the evidence preponderates
against the trial judge’s finding. We arrive at this conclusion despite the proof that the
hazard could have been easily remedied.
The judgment of the court below is affirmed and the cause is remanded
to the Circuit Court of Davidson County for any further proceedings that might become
necessary. Tax the costs on appeal to the appellant.
____________________________
BEN H. CANTRELL, JUDGE
CONCUR:
__________________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
__________________________________
WALTER W. BUSSART, SPECIAL JUDGE