Tony W. Carrick v. City of Shelbyville, Tennessee

08/05/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
June 10, 2021 Session

TONY W. CARRICK ET AL. v. CITY OF SHELBYVILLE, TENNESSEE

Appeal from the Circuit Court for Bedford County
No. 2018-CV-13396 M. Wyatt Burk, Judge
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No. M2020-01218-COA-R3-CV
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Following a single-vehicle accident on a road owned and controlled by the City of
Shelbyville (the “City”), Tony Carrick and his wife, Linda Carrick (together, “Plaintiffs”),
filed suit against the City alleging damages for personal injury, injury to property, and loss
of consortium. The City moved for summary judgment on the basis that it retained its
immunity under the Governmental Tort Liability Act (“GTLA”) because it had no actual
or constructive notice of a defective, unsafe, or dangerous condition on the road where the
accident occurred. The trial court agreed with the City and granted its motion for summary
judgment. Having reviewed the record, we conclude that genuine issues of material fact
exist regarding whether the City had actual or constructive notice of the condition at issue.
We reverse.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court for Bedford
County Reversed; Case Remanded

KRISTI M. DAVIS, J., delivered the opinion of the Court, in which KENNY W. ARMSTRONG
and ARNOLD B. GOLDIN, JJ., joined.

Jason L. Huskey, Manchester, Tennessee, for the appellants, Tony Wesley Carrick and
Linda Carrick.

William C. Mazzota, Brentwood, Tennessee, for the appellee, City of Shelbyville.

OPINION

I. BACKGROUND

This is a GTLA case arising from a motor vehicle accident that occurred on Harts
Chapel Road in Shelbyville, Tennessee. On the afternoon of August 30, 2017, Mr. Carrick
wrecked his vehicle when a culvert directly underneath the asphalt on Harts Chapel Road
gave way and the asphalt crumbled. According to Mr. Carrick, his vehicle became lodged
in the resultant hole.

Plaintiffs filed an action in the Circuit Court for Bedford County (the “trial court”)
on August 28, 2018, alleging that the City1 was responsible for Mr. Carrick’s bodily
injuries and property damage. Mrs. Carrick alleged loss of consortium. Plaintiffs averred
that the City’s governmental immunity was removed by virtue of Tennessee Code
Annotated section 29-20-203.2

The City responded by denying that its GTLA immunity was removed, stating that
it was not on notice of any alleged defective, unsafe, or dangerous conditions at the site of
the accident on Harts Chapel Road. Some discovery ensued, and it was revealed that on
the day before the accident, August 29, 2017, the culvert in question had been inspected by
Grady Frazier, the superintendent of street drainage for the City’s public works department.
It is undisputed that the City inspected the culvert due to a recent flooding incident. After
that inspection, Mr. Frazier submitted a work order for the culvert in question to be
replaced. This work order provided that work would begin on September 1, 2017, and that
the “dig area will be through the road as we will replace the culvert.”

The City filed a motion for summary judgment on April 27, 2020, arguing that it
retained its immunity pursuant to the GTLA because Plaintiffs could not prove the City
had actual or constructive notice of a defective, unsafe, or dangerous condition where the
accident occurred. The City argued that the hole was created by Mr. Carrick’s truck at the
time of the accident and that the City therefore could not have had prior notice of the hole.
The City further averred that “there is no fact in the record to support a claim that anyone
contacted the City about any issues pertaining to the [c]ulvert or the [r]oad where the [h]ole
formed before the accident. Neither the County’s then-Superintendent nor Deputy-
Superintendent recall informing the City of any issues pertaining to Mr. Carrick’s
allegations.” Additionally, the City urged that the inspection done by Mr. Frazier the day
before the accident was insufficient to create a question of fact regarding notice because
the inspection had to do with the culvert itself as opposed to the road constructed on top of
the culvert.

In support of its motion, the City submitted, inter alia, an affidavit by Mr. Frazier.
Mr. Frazier conceded that he inspected the culvert on August 29, 2017, and determined

1
Bedford County was originally named as a defendant but was later dismissed from the action by
agreement of the parties. Bedford County is not participating in the present appeal.
2
Plaintiffs’ complaint actually states that the City’s immunity is removed pursuant to T.C.A. § 29-
22-03; however, this appears to be a typo.

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that it needed replacing. Mr. Frazier maintained, however, that while the culvert needed
replacing, he did not conclude from his inspection that the culvert posed “any threat to the
stability or integrity of the [r]oad.” The City provided additional affidavits from several
employees maintaining that they received no previous complaints or reports regarding
damage to the relevant portion of Harts Chapel Road and that the hole created by Mr.
Carrick’s truck was the first indication of any damage.

Plaintiffs responded to the motion for summary judgment on June 17, 2020.
Plaintiffs averred that a genuine issue of material fact existed as to whether the City had
notice regarding the condition of the culvert, explaining that “[t]he City clearly received
some form of notice to check on the condition of the culvert prompting their inspection on
August 29, 2017 and discovering that the culvert was in need of repair.” Plaintiffs also
took issue with the City’s averment that it had no reports or complaints regarding the
portion of the road in question; Plaintiffs pointed to the August 29, 2017 work order, which
was contained in the record, and urged that “clearly there is some form of notice or
reporting that prompted the inspection.” Plaintiffs also disputed Mr. Frazier’s statement
that he did not believe, on August 29, 2017, that the integrity of the road was threatened
by the culvert, again pointing to the work order and noting that “[t]here was enough concern
from inspecting it that [the City] wrote a work order to replace the culvert dated that same
day.” Stated simply, Plaintiffs’ position at the summary judgment stage was that the
August 29, 2017 work order was sufficient, standing alone, to create a genuine issue of
material fact regarding whether the City had actual or constructive notice of a defective,
unsafe, or dangerous condition as to both the culvert and the road.

The trial court held a hearing on the City’s motion on June 25, 2020, and entered an
order granting the motion for summary judgment on August 5, 2020. The trial court found,
as pertinent:

2. Plaintiffs have not sufficiently disputed any of the City’s material
facts.

3. Specifically, it is undisputed that the City did not have actual or
constructive notice of the alleged dangerous, unsafe, or defective condition
that caused Mr. Carrick’s alleged accident and, thus, the Plaintiffs have failed
to create a genuine issue of this material fact.

4. Mr. Frazier’s testimony that the [c]ulvert did not pose a threat to
the stability or integrity of the [r]oad coupled with the work order attached
as Exhibit A to his declaration is insufficient to constitute actual or
constructive notice of a dangerous or defective condition along the [r]oad.

5. The fact that the City determined that the [c]ulvert needed to be

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 replaced does not warrant a conclusion that the City had notice that the
[c]ulvert was a dangerous, unsafe, or defective condition that caused Mr.
Carrick’s alleged accident. No such affidavit or proof otherwise has been
submitted by the Plaintiffs for the Court’s consideration.
Plaintiffs’ case was dismissed in its entirety, and they filed a timely appeal to this
Court.

II. ISSUES

Plaintiffs raise a single issue on appeal:

1. Whether the trial court erred in granting the City’s motion for summary
judgment.

The City raises one additional issue in its posture as appellee:

2. Whether this appeal is frivolous such that the City should be awarded its
attorney’s fees pursuant to Tennessee Code Annotated section 27-1-122.

III. STANDARD OF REVIEW

A trial court may grant summary judgment only if the “pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits . . . 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. The propriety of a trial court’s
summary judgment decision presents a question of law, which we review de novo with no
presumption of correctness. Kershaw v. Levy, 583 S.W.3d 544, 547 (Tenn. 2019).

“The moving party has the ultimate burden of persuading the court that there are no
genuine issues of material fact and that the moving party is entitled to judgment as a matter
of law.” Martin v. Norfolk S. Ry., 271 S.W.3d 76, 83 (Tenn. 2008). As our Supreme Court
has instructed,

when the moving party does not bear the burden of proof at trial, the moving
party may satisfy its burden of production either (1) by affirmatively negating
an essential element of the nonmoving party’s claim or (2) by demonstrating
that the nonmoving party’s evidence at the summary judgment stage is
insufficient to establish the nonmoving party’s claim or defense.

Rye v. Women’s Care Ctr. of Memphis, 477 S.W.3d 235, 264 (Tenn. 2015) (emphasis in
original). “[I]f the moving party bears the burden of proof on the challenged claim at trial,
that party must produce at the summary judgment stage evidence that, if uncontroverted at

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trial, would entitle it to a directed verdict.” TWB Architects, Inc. v. Braxton, LLC, 578
S.W.3d 879, 888 (Tenn. 2019) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 331, 106 S.
Ct. 2548, 91 L.Ed.2d 265 (1986)).

When a party files and properly supports a motion for summary judgment as
provided in Rule 56, “to survive summary judgment, the nonmoving party may not rest
upon the mere allegations or denials of its pleading, but must respond, and by affidavits or
one of the other means provided in Tennessee Rule 56, set forth specific facts . . . showing
that there is a genuine issue for trial.” Rye, 477 S.W.3d at 265 (internal quotation marks
and brackets in original omitted). “Whether the nonmoving party is a plaintiff or a
defendant—and whether or not the nonmoving party bears the burden of proof at trial on
the challenged claim or defense—at the summary judgment stage, ‘[t]he nonmoving party
must demonstrate the existence of specific facts in the record which could lead a rational
trier of fact to find in favor of the nonmoving party.’” TWB Architects, 578 S.W.3d at 889
(quoting Rye, 477 S.W.3d at 265).

In reviewing the trial court’s summary judgment decision, we accept the evidence
presented by the nonmoving party (in this case, Plaintiffs) as true; allow all reasonable
inferences in their favor; and “resolve any doubts about the existence of a genuine issue of
material fact in favor of” Plaintiffs, the party opposing summary judgment. Id. at 887.

IV. DISCUSSION

The question in this case is whether the City retains the immunity afforded it
pursuant to the GTLA. See Tenn. Code Ann. § 29-20-201 et seq.; see also Brown v.
Hamilton Cnty., 126 S.W.3d 43, 46 (Tenn. Ct. App. 2003) (“Local governmental entities
are immune from suit except when the General Assembly has, by statute, explicitly
permitted them to be sued.” (citing Fretwell v. Chaffin, 652 S.W.2d 755, 756 (Tenn.
1983))). The dispute here arises from section 29-20-203, which removes governmental
immunity “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.”
Tenn. Code Ann. § 29-20-203(a). Removal of immunity under this section does not apply,
however, unless “constructive and/or actual notice to the governmental entity of such
condition be alleged and proved[.]” Id. § 29-20-203(b). Regarding section 29-20-203 and
actual and constructive notice, we have previously explained:

“[T]he section of the GTLA which removes sovereign immunity
for injuries caused by dangerous or defective structures
essentially codifies [the] common-law” rule that:

To sustain a claim for premises liability, a plaintiff must prove (1)
that the dangerous or defective condition was caused or created by

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 the owner, operator, or his agent, or (2) that the condition was
created by a third party and the owner, operator, or agent had actual
or constructive notice of the condition before the accident.

Brown v. Chester Cnty. Sch. Dist., No. W2008-00035-COA-R3-CV, 2008
WL 5397532, at *2 (Tenn. Ct. App. Dec. 30, 2008) (citing Martin v.
Washmaster Auto Ctr., 946 S.W.2d 314, 318 (Tenn. Ct. App. 1996)).

* * *

The Tennessee Supreme Court has described actual notice as
“knowledge of facts and circumstances sufficiently pertinent in character to
enable reasonably cautious and prudent persons to investigate and ascertain
as to the ultimate facts.” Kirby [v. Macon Cnty., 892 S.W.2d 403, 409 (Tenn.
1994)], (quoting Texas Co. v. Aycock, 190 Tenn. 16, 227 S.W.2d 41, 46
(Tenn. 1950)). Constructive notice, in contrast, 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 v. City of Westmoreland, 960 S.W.2d 10, 15
(Tenn. 1997)). 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).

On appeal, Plaintiffs maintain that the August 29, 2017 work order creates a genuine
issue of material fact regarding actual or constructive notice, inasmuch as the work order
establishes that the culvert at issue was inspected one day prior to Mr. Carrick’s accident
and that the City determined it needed replacement. On the other hand, the City argues
that notwithstanding the work order, Plaintiffs can point to no facts in the record supporting
their contention that the City had notice of any defective, unsafe, or dangerous conditions
affecting the road itself as opposed to the culvert. The City avers that Plaintiffs offered no
affidavits or additional evidence of their own at the summary judgment stage to dispute
Mr. Frazier’s statement that he did not believe the integrity of the road was threatened by

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the culvert as of August 29, 2017, and that as such, this fact is undisputed. Plaintiffs
counter that taken together, the work order and the fact that the culvert and the road
collapsed on August 30, 2017, create a genuine issue of material fact as to actual and/or
constructive notice, and that Plaintiffs need not have provided anything further to survive
summary judgment.
We agree with Plaintiffs. Although the City correctly notes that Plaintiffs did not
file any opposing affidavits in response to the City’s motion for summary judgment, Rule
56 does not necessarily demand this. Rather, when responding to a motion for summary
judgment, “[t]he nonmoving party must demonstrate the existence of specific facts in the
record which could lead a rational trier of fact to find in favor of the nonmoving party.”
Bowers v. Estate of Mounger, 542 S.W.3d 470, 478 (Tenn. Ct. App. 2017) (quoting Rye,
477 S.W.3d at 265). In responding to the City’s motion, Plaintiffs cited to the work order,
which is contained in the record, to dispute the City’s contention that as of August 30,
2017, the City lacked actual or constructive notice of a threat to the structural integrity of
the road above the culvert. The work order provides that the culvert would be replaced on
September 1, 2017, and that the “dig area will be through the road as we will replace the
culvert.” Consequently, based on the work order itself, a reasonable trier of fact could
conclude that the City had actual or constructive notice3 that the culvert and/or the road
atop the culvert were unsafe, dangerous, or defective.

On appeal, the City relies heavily on the affidavit of Mr. Frazier, which provides
that despite entering the work order on August 29, 2017 for replacement of the culvert, he
did not believe at that time that the integrity of the road atop the culvert was threatened.
The City argues that because Plaintiffs did not provide their own additional evidence in
response to the affidavit, Mr. Frazier’s position is undisputed. As we have already
explained, however, Plaintiffs cited to the work order in the record to challenge Mr.
Frazier’s statement; additionally, Plaintiffs argue on appeal that while Mr. Frazier claims
to have believed the road was sound as of his inspection on August 29, 2017, the undisputed
fact that the road crumbled directly above the culvert the next day creates an issue as to
whether Mr. Frazier’s belief was unreasonable. Here, we find ourselves aligned with
Plaintiffs. See Fowler, 514 S.W.3d 738 (“[A]ctual notice [is] ‘knowledge of facts and

3
The City urges on appeal that Plaintiffs have waived any argument regarding constructive notice
by failing to appropriately raise it in the trial court. This argument is unsupported by the record. While we
agree that Plaintiffs have, to some extent, conflated the notions of actual and constructive notice, the issue
of constructive notice is not waived because it was inartfully raised. See First Cmty. Bank, N.A. v. First
Tennessee Bank, N.A., 489 S.W.3d 369, 401 (Tenn. 2015) (“[D]etermining whether parties have waived
their right to raise an issue on appeal should not exalt form over substance ... [a]ppellate courts must
carefully review the record to determine whether a party is actually raising an issue for the first time on
appeal.” (quoting Powell v. Cmty. Health Sys., 312 S.W.3d 496, 511 (Tenn. 2010))). Further, the doctrine
of waiver generally prevents parties from raising arguments to which their opponents have been unable to
respond. See Jackson v. Burrell, 602 S.W.3d 340, 345 (Tenn. 2020). Here, the City has had the opportunity
to address the issue of both actual and constructive notice at multiple points.

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circumstances sufficiently pertinent in character to enable reasonably cautious and prudent
persons to investigate and ascertain as to the ultimate facts.’” (quoting Kirby, 892 S.W.2d
at 409)); McMahan v. City of Cleveland, No. E2018-01719-COA-R3-CV, 2019 WL
5067193, at *3 (Tenn. Ct. App. Oct. 9, 2019) (“If the contention is one of actual notice, the
operative questions are what did the [c]ity know and when did the [c]ity know it. . . . If
the contention is one of constructive notice, the operative questions are what should the
[c]ity have known and when should the [c]ity have known it.”) (citations omitted); see also
TWB Architects, 578 S.W.3d at 892 (“[S]ummary judgment ‘is seldom appropriate in cases
wherein particular states of mind are decisive as elements of [a] claim or defense[.]’”
(quoting HCA, Inc. v. Am. Prot. Ins. Co., 174 S.W.3d 184, 193 (Tenn. Ct. App. 2005))).

In that vein, we are unpersuaded by the City’s averment that nothing in the record
connects the structural integrity of the culvert with that of the road; again, the work order
raises a question here, insofar as the contents of the order suggest that the “dig area” to
replace the culvert will have to go “through the road.” At the very least, this raises a
genuine issue of material fact as to whether the City, through Mr. Frazier, should have
known that the structural integrity of the culvert affected the safety of the road above it.

Finally, the City avers that this case is analogous to McMahan v. City of Cleveland,
2019 WL 5067193, a contention with which we disagree. In that case, the plaintiff tripped
on an uneven portion of sidewalk owned by the City of Cleveland. Id. at *1. She brought
suit against the city alleging, inter alia, that the city had actual or constructive notice of the
condition on the sidewalk and that the city’s immunity was removed by section 29-20-203.
Id. The case proceeded to a bench trial, and the trial court found that the plaintiff failed to
show the city had either actual or constructive notice of any defective, unsafe, or dangerous
condition. Id. at *2.

On appeal, the plaintiff first argued that “the City had notice because the roots of
the trees it planted along the sidewalks in the 1990s caused some of the sidewalks in the
downtown area to be raised or cracked and uneven.” Id. at *4. “Stated another way,
[p]laintiff assert[ed] that the act of planting the trees combined with the location of the
hazardous condition [was] enough to impute notice and remove immunity.” Id. We
rejected this argument, however, because “[p]laintiff produced no evidence that the raised
or cracked and uneven defect in the sidewalk where she tripped and fell was caused by the
growth of a tree root.” Id. The plaintiff further argued a common occurrence theory, urging
that “the City had constructive notice of the defect where she tripped and fell because the
defective condition occurs often enough throughout the City that the City was put on
constructive notice of its existence.” Id. at *5. Again, however, we noted that the plaintiff
introduced no evidence to support this theory. Id. Importantly, we explained that the
director of public works for Cleveland testified that “no one had identified or observed a
potential hazard in the sidewalk where [p]laintiff tripped and fell during any of the sweeps,
and there had been no complaints by anyone of any kind pertaining to the section of

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sidewalk where [p]laintiff tripped and fell.” The plaintiff did not rebut this testimony, and
we upheld the trial court’s decision in favor of the city. Id.

We do not find McMahan applicable under these circumstances. First, McMahan
does not deal with summary judgment as we do here; this is significant because at this stage
in the proceedings, we are simply ascertaining whether the case should be allowed to
proceed to trial based on what is contained in the record. Second, in McMahan, the City
of Cleveland put on proof that “no one had identified or observed a potential hazard” at the
site of the plaintiff’s fall, whereas here, it is undisputed that the City not only inspected the
site of Mr. Carrick’s accident but also determined that a prompt replacement of the culvert
was necessary. Accordingly, McMahan does not control here.

The evidence before us could cause a rational trier of fact to conclude that the City
had either actual or constructive notice of a defective, unsafe, or dangerous condition at the
site of Mr. Carrick’s accident. Inasmuch as we must allow all reasonable inferences and
resolve any doubts about the existence of a genuine issue of material fact in Plaintiffs’
favor, TWB Architects, 578 S.W.3d at 887 (quoting Rye, 477 S.W.3d at 265), we conclude
that genuine issues of material fact exist regarding whether the City had actual or
constructive notice of a defective, unsafe, or dangerous condition. We therefore reverse
the trial court’s decision granting the City summary judgment on all of Plaintiffs’ claims.
Because Plaintiffs have prevailed in this appeal, we decline to award the City
attorney’s fees pursuant to Tennessee Code Annotated section 27-1-122.

V. CONCLUSION

The judgment of the Circuit Court for Bedford County is hereby reversed, and the
case remanded for proceedings consistent with this opinion. Costs of this appeal are
assessed to the appellee, the City of Shelbyville, for which execution may issue if
necessary.
_________________________________
KRISTI M. DAVIS, JUDGE

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