No Notice of Dangerous Condition Bars Fall-Down Case

Where plaintiff sued an adjacent landowner for visible water that allegedly made him fall at a storage facility, the Court of Appeals affirmed the holding that the defendant was not liable for the accident.

In Morgan v. Memphis Light Gas & Water, No. W2016-01249-COA-R3-CV (Tenn. Ct. App. Feb. 6, 2018), plaintiff was looking at a storage unit at Cook Sales’ property in April 2013 when he slipped and fell in a puddle of water. The area where plaintiff fell was visibly wet. Adjacent to the property where the storage facility was located, defendant owned a water tower. Plaintiff brought suit against defendant, a governmental entity, alleging that “the water tank located on [defendant’s] property leaked, causing water to intrude onto Cook Sales’ property and saturate the ground where he fell.”

After a bench trial, the trial court found for defendant, holding that plaintiff failed to show that the “water tower caused or created a dangerous or defective condition;” that plaintiff had failed to show that defendant had notice of any allegedly dangerous condition; and that under the doctrine of comparative fault, plaintiff was “at least 50% at fault and Cook Sales was at least 50% at fault[.]” The Court of Appeals affirmed all of these findings.

Because defendant was a governmental entity, the GTLA applied to this case, which provides immunity to defendants unless certain statutory conditions are met. Here, plaintiff was proceeding under the premises liability section of the GTLA, which states that immunity is removed “for any injury caused by the dangerous or defective condition of any public building, structure…owned and controlled by such governmental entity.” Tenn. Code Ann. § 29-20-204. This statute further provides that immunity is not removed “unless constructive and/or actual notice to the governmental entity of such condition be alleged and proved[.]”

Plaintiff argued that an employee of Cook Sales made “monthly calls” to defendant “to complain of water coming from under the tower,” and that defendant’s “records show a recurring problem of water draining from [defendant’s] property down onto Cook Sales’ property in May and December 2012 and January 2013.” According to plaintiff, these incidents should have qualified as notice of the alleged problem.

Testimony from defendant’s employees, though, showed that the tank was inspected monthly, and that this particular tank had not had a problem in all of 2012 through March 2013. The first indication of any leak was discovered two days after plaintiff’s fall, and this leak was described as being very small, similar to a running house faucet. Further, the employee of Cook Sales who plaintiff said had called with complaints “was unable to provide any dates or times for these complaints.” Defendant’s records showed that the only calls received from Cook Sales regarding problems were in January 2012 and January 2013, and both calls were looked into with no leak being found.

Based on this review of the evidence, the Court of Appeals affirmed the trial court’s finding that plaintiff had not proven actual or constructive notice of any dangerous condition on Cook Sales’ property. Without proof of notice, immunity was not removed under the GTLA, which was dispositive of the case.

In addition to affirming the notice issue, the Court also affirmed the finding that both plaintiff and Cook Sales would be 50% at fault in this case. In support of this holding, the Court cited certain facts found by the trial court, including that the Cook Sales employee “knew or should have known that the ground…was in a wet and unsafe condition,” and that he “knew or should have known that taking a customer to see a shed through the wet, moist area posed a substantial and foreseeable risk that a customer could slip and fall[.]” The Court also cited the trial court’s finding that plaintiff “should have appreciated the risk of falling, and should not have taken the risk of walking through the mud.” Based on these facts, the Court noted that Cook Sales “had a duty to use ordinary care to keep its premises safe, and [plaintiff], …had a duty to use reasonable care for his own safety,” and it affirmed the holding that plaintiff would have been barred from recovery based on comparative fault.

In addition to the premises liability issues, plaintiff raised an evidentiary issue on appeal, arguing that the two employees of defendant who served as witnesses “should not have been allowed because [they] did not have personal knowledge of the matters about which they testified…and they were not designated as experts.” The Court rejected this argument, finding that the fact that the witnesses based much of their testimony on a review of defendant’s documents was “not a basis to exclude or limit it.” The witnesses did not express an expert opinion on the ultimate issues, and the Court ruled that allowing their testimony was not error, but was instead helpful to the trier of fact.


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