Day on Torts
Where a defense verdict in a GTLA bench trial was based largely on credibility, the verdict was affirmed on appeal.
In Ware v. Metro Water Services, a Division/Agency of Metropolitan Government of Nashville, Davidson County, Tennessee, No. M2022-01114-COA-R3-CV (Tenn. Ct. App. May 30, 2023), plaintiff filed a GTLA case after she fell “due to an unsecure water meter valve cover” in her sister’s yard. During a bench trial, the evidence focused largely on the practice and habit of Metro employees in closing a water meter valve cover when they finished working on it. The evidence showed that the water meter plaintiff fell into had been serviced in July before plaintiff’s fall in September, and plaintiff asserted that said employee had been negligent by not properly recovering the meter.
The employee who performed that work in July testified that he had worked for Metro for over 19 years and typically worked on about 4,000 work orders per year. He testified that he always secured the cover before leaving a job, and that he always put his foot on the lid, stomped on it, and walked away by stepping on it. He testified that there was no doubt in his mind that he had secured the cover in question.
Another employee who went to inspect the water meter one month after plaintiff’s fall testified about the policy of securing and stepping on covers. He also testified that in October when he saw the water meter, the cover could not have been secured due to grass and soil buildup. He agreed, however, that he had no knowledge of the condition of the area in the prior July. Additional testimony showed that covers could be damaged or pushed ajar by passing cars, lawnmowers, or unauthorized people.
Based on the evidence presented, the trial court ruled that plaintiff had “not sufficiently proven her case,” noting that it found the employee who worked on the meter in July to be credible. On appeal, that ruling was affirmed.
The Court of Appeals began by noting that plaintiff “did not have to eliminate all possible causes or inferences other than Metro’s negligence, but she must show that the evidence for her case makes Metro’s alleged or inferred negligence more probable than any other cause.” (internal citation omitted). While plaintiff argued on appeal that the trial court should not have relied on evidence of habit, the Court of Appeals noted that such evidence was admissible under Tennessee Rule of Evidence 406 and that plaintiff had failed to object to such evidence at trial. The Court further noted that plaintiff relied heavily on the testimony that the cover could not have been closed due to the grass and soil conditions in October, but it stated that “there [was] a missing link in the picture that [plaintiff] attempt[ed] to paint.” While one employee did testify that the cover could not have been closed due to grass and soil in October, that same witness “expressly agreed that he did not have any knowledge of the conditions that [the employee who worked in July] would have encountered.”
Based on the evidence and the trial court’s finding that the employee who performed the July work was credible, the Court of Appeals affirmed the verdict for defendant.
This case is a reminder of the importance of considering the timeliness of your evidence in a negligence case. Here, plaintiff sought to rely on testimony regarding the condition of the water meter approximately three months after she asserted that negligence took place, and that time lapse combined with the trial court’s credibility findings was fatal to plaintiff’s case.
This opinion was released two weeks after oral arguments in this case.