A plaintiff’s verdict in a slip-and-fall case against the county school board was recently overturned by the Tennessee Court of Appeals in Traylor v. Shelby County Board of Education, No. W2013-00836-COA-R3-CV (Tenn. Ct. App. Feb. 27, 2014). Plaintiff was a sophomore at Bolton High School in Shelby County when he slipped on a patch of black ice on the school’s sidewalk and broke his ankle. The incident occurred on a Thursday morning while plaintiff was walking to his next class on a normal route that received heavy foot traffic. The school had been closed the previous Monday and Tuesday due to freezing temperatures and an inch and half of frozen precipitation. There were no reports of ice on the sidewalk and no incidents during the preceding Wednesday or on Thursday morning before plaintiff’s fall.
Plaintiff’s case was tried before a judge and not a jury, just like all cases against local governmental entities under Tennessee’s Governmental Tort Liability Act (“GTLA”). The trial judge ruled that the school did not fulfill its duty to maintain a safe premises after having constructive knowledge of the unsafe condition and therefore awarded the plaintiff and his father a total of $76,000 in compensatory damages.
There were three ways that the plaintiff could prove that the school had constructive knowledge of the dangerous condition that was the ice on the sidewalk leading to plaintiff’s fall. First, the plaintiff could have established that the school caused or created the condition. Second, the plaintiff could have proven that the condition existed for a sufficient amount of time that the school should have become aware of it (“the passage of time theory”). Third, and finally, the plaintiff could have shown that the ice was a common occurrence, recurring condition, or a generally continuing dangerous condition of which the school should have been aware (“common occurrence theory”).
On appeal, there was an issue concerning the differences between the trial court’s specific findings in its oral and written orders. Both parties’ appellate briefs assumed that the pivotal issue on appeal concerned the common occurrence theory (the third way of proving constructive notice). The trial court’s oral orders at the conclusion of trial referenced testimony about water regularly draining or flowing across the sidewalk in the area where the plaintiff fell. The oral order specifically included a finding that the school’s plant manager and principal knew that water typically drained across the sidewalk, which was sloped, and that on Thursday morning it was incumbent on the plant manager to look carefully, particularly in the area where they knew water had a history of flowing across the sidewalk, which turned out to be the specific area where plaintiff fell.
However, the appellatecourt found that the trial court’s written orders did not include a factual finding about water regularly draining or flowing across the sidewalk or that any school official had knowledge of such a fact. The written order basically stated that the plant manager had inspected the facility after a winter weather event, had two days to clear the situation, and did not. The court of appeals then ruled that its analysis should be focused on the trial court’s written orders rather than its oral rulings, and thus decided that it would not review evidence in the record to support a finding of constructive notice based on the common occurrence theory. Instead, the appellate court’s review was restricted to the passage of time theory based on its determination that the trial court’s written order appeared premised on a finding that the ice on the sidewalk had been there for at least two days and had not been cleared prior to plaintiff’s injury.
Upon reviewing the record for facts in support of the passage of time theory only, the appellate court ruled that there was insufficient evidence to support the trial court’s finding of constructive notice. Crucially, the evidence did not show that the ice that caused plaintiff’s fall had formed on the previous Monday or Tuesday and had remained until Thursday morning. The plaintiff was required but failed to demonstrate that he slipped on black ice that had been on the sidewalk for a sufficient amount of time that the school should have and could have seen it and cleared it before he slipped and fell on it. Consequently, the court of appeals reversed the trial court’s decision in plaintiff’s favor.
One question. If the temperatures never got above freezing, and there was no more precipitation, wasn’t the ice simply water thawed temporarily by the salt and refrozen?
Click on the link for more case law on the issue of proving constructive notice in Tennessee governmental tort liability cases.