Day on Torts

Plaintiff could not show constructive notice in GTLA premises liability case where she could not show how long dangerous condition had existed.

Where plaintiff tripped on an uneven sidewalk and brought a GTLA premises liability suit against defendant city, plaintiff could not show constructive notice because she could not show how long the condition had existed.

In Mitchell v. City of Franklin, Tennessee, No. M2021-00877-COA-R3-CV, 2022 WL 4841912 (Tenn. Ct. App. Oct. 4, 2022), plaintiff was leaving a church service and walking on sidewalks owned by defendant city when she tripped and fell. Plaintiff alleged that her fall was caused by an “abrupt change of elevation caused by a raised portion of the sidewalk.” Plaintiff filed a GTLA case against the city, and the trial court ultimately entered judgment in favor of the city, which was affirmed in part and reversed in part on appeal. Of note, the city remediated this sidewalk condition after plaintiff’s fall, and no measurement of the height variation was taken at any time prior to the remediation.

Two sections of the GTLA were potentially implicated in this action. Tenn. Code Ann. § 29-20-205 “removes immunity for injury caused by the negligence of a public officer or employee,” but the statute lists several exceptions, including that immunity is not removed for the performance or failure to perform a discretionary function (subsection (1)) or for the failure to make or negligent performance of an inspection (subsection (4)). The trial court granted summary judgment under this statute, finding that plaintiff could not prove liability due to these exceptions, and review of this issue was waived on appeal. The Court of Appeals pointed out, however, that “liability for injuries under section 29-20-203 caused by a defective, unsafe, or dangerous condition is not subject to the exceptions of section 29-20-205” and that “the City’s immunity may still be removed under section 29-20-203 even though it retained immunity under section 29-20-205.” (internal citation omitted).

The statute at the core of the appeal was Tenn. Code Ann. § 29-20-203, which “removes immunity for injury caused by government roadways and sidewalks under certain circumstances.” Immunity is only removed under this statute if the governmental entity had actual or constructive notice of the dangerous condition, and plaintiff was asserting constructive notice on appeal. Tenn. Code Ann. § 29-20-203(b). Plaintiff attempted to prove constructive notice through two theories. First, she asserted that the dangerous condition “had existed for such a sufficient length of time that constructive notice should be presumed” pursuant to the passage of time theory. “In order to prove constructive notice under the passage of time theory, [plaintiff] must generally present some proof of how long the dangerous condition existed prior to the accident in question.” (internal citation omitted).

At trial, there as conflicting testimony regarding whether a person from the church had reported the sidewalk issue in 2012. A witness for the city stated that no report was made, and the trial court found that witness more credible, a finding to which the Court of Appeals deferred. Plaintiff also presented five photographs from Google Street View, but on most of the photos it was impossible to tell whether the height variation existed. Plaintiff presented testimony from an expert in the field of human factors engineering who stated that a photo from June 2016 showed elevation of one of the concrete slabs. He testified that he used a method to measure the probable height deviation based on the grinding and removal done by the city to remediate the issue, and that the height deviation was more than a quarter inch but not more than one inch. The trial court “ultimately found that the measurement performed by the human factors engineer and his opinions based on that measurement were unreliable,” but city employees also stated that the height deviation of the sidewalk was between a quarter inch and an inch when plaintiff fell. Nonetheless, the Court noted that “it was unclear from the evidence how long [the height deviation] had existed prior to [plaintiff’s] fall.”

Plaintiff also asserted that the height deviation was caused by tree roots near the sidewalk. A photo from October 2011 showed a tree near the sidewalk, and that tree was removed sometime after June 2016 but before plaintiff’s fall. Plaintiff and four other witnesses at trial believed the tree roots caused the height deviation, and based on the photos, “if the tree’s roots were the cause of the condition of the sidewalk, the condition would have existed at least somewhere between seven months and two years.” The Court pointed out, however, that even considering this evidence, “it was still unclear at what point in time the change in elevation became unsafe,” and that it was thus unclear how long the condition existed. Due to this lack of evidence, and because “there was evidence in the record that the condition of the sidewalk might not have been caused by the adjacent tree’s roots,” plaintiff could not show constructive notice. Because plaintiff “failed to show how long the condition had existed,” she failed to prove constructive notice under the passage of time theory.

Plaintiff next asserted that the condition being caused by the tree roots showed constructive notice under the common occurrence theory. “[T]o find constructive notice under the common occurrence theory, the plaintiff must show that the dangerous condition occurred in the same approximate location and in such a frequent manner, that the happening of the condition was foreseeable by the defendants.” (internal citation omitted). The trial court found that this theory “had no support in the record,” as plaintiff was the first person to trip in this area and no one was aware of any prior issues. Plaintiff could accordingly not show constructive notice of the sidewalk condition that caused her to fall.

The Court next addressed a few evidentiary issues, primarily defendant’s assertion that plaintiff made an untimely offer of proof that should not have been considered. Plaintiff sought to have her expert testify regarding the city’s maintenance and inspection policies and procedures, and when the trial court refused to allow the testimony because it was not relevant, plaintiff’s counsel suggested making an offer of proof via affidavit and the trial court agreed. Plaintiff did not file this affidavit offer of proof until after trial and after filing her notice of appeal. While the Court of Appeals noted that this was not customary and “caution[ed] against this practice in the future,” it found that the affidavit could be considered in this case. Further, based on the offer of proof, it ruled that “the testimony of the human factors engineer regarding the maintenance and inspection of the City’s sidewalks was relevant to whether the City had constructive notice pursuant to section 29-20-203.” The Court explained:

As previously noted, proof of the City’s failure to inspect is relevant to the question of whether the City had constructive notice. Despite the City’s immunity under the failure to inspect exception of section 29-20-205(4), 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 unsafe or defective condition resulting in injury. Since [plaintiff] is seeking recovery from the City which owns and controls the sidewalk in question pursuant to section 29-20-203, section 29-20-205(4) does not provide immunity from suit arising from any injury caused by a defective, unsafe, or dangerous condition of that sidewalk if either actual or constructive notice is alleged and proved. The city’s immunity may still be removed under section 29-20-203 even though it retained immunity under section 29-20-205, and removal of the city’s immunity may be achieved by proving constructive notice with proof of the city’s failure to inspect its sidewalks.

(internal citations and quotations omitted). The Court of Appeals therefore vacated the ruling that the expert could not testify on this issue, and it remanded the case to the trial court “to consider the testimony of the human factors engineer concerning the maintenance and inspection of the City’s sidewalks.” Accordingly, the trial court’s ruling was affirmed in part and reversed in part.

This case is yet another example of how difficult it can be to prove constructive notice of a dangerous condition when plaintiff cannot show what caused the condition or exactly how long the condition existed before the injury. It also provides an interesting analysis of how the different sections of the GTLA may work in unison.

This opinion was released 4.5 months after oral arguments in this case.

Note: Chapter 41, Sections 4 and 7 of Day on Torts: Leading Cases in Tennessee Tort Law has been updated to include this decision.

Day on Torts: Leading Cases in Tennessee Tort Law contains summaries of leading cases on over 500 topics and citations to more than 1500 additional cases. The 500,000+ word book (and two others, Tennessee Law of Civil Trial and Compendium of Tennessee Tort Reform Cases) is available by subscription at www.birddoglaw.com and is continually updated as new decisions and statutes impact Tennessee law. Click on the link to see the book’s Table of Contents.

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