Day on Torts
Where a premises liability plaintiff did not provide sufficient proof that a sewer cleanout cap in a sidewalk was a dangerous or defective condition, summary judgment for defendants was affirmed.
In Garamella v. City of Lebanon, No. M2021-00262-COA-R3-CV, 2022 WL 202641 (Tenn. Ct. App. Jan. 24, 2022), plaintiff was walking on a sidewalk in a residential neighborhood when she tripped and fell over a sewer cleanout cap that protruded from the middle of the sidewalk. Plaintiff was walking her dog at the time and admitted in discovery that she was distracted by her dog and “probably would have seen the cleanout cap had she been looking forward as she walked.”
The sidewalk was located in a neighborhood constructed by defendant Goodall Homes. Goodall had contracted with a construction company to build the sidewalk, which was substantially completed in September 2006. The City of Lebanon, who was also named as a defendant, completed a final surface inspection of the area in November 2009 and thereafter “assumed responsibility for the maintenance of the sidewalk.” The evidence in this case showed that an unnamed homeowner had also potentially tripped over the cap at some point in the past, but that the cap placement was “compliant with the applicable code” and that if such a previous trip had occurred, it was not reported to the City. Defendants Goodall and the City both filed motions for summary judgment, which the trial court granted, and the Court of Appeals affirmed.
Looking first to the claim against the City, plaintiff argued that the City was not immune from suit under the GTLA and that “there was sufficient evidence in the record to establish that the cleanout cap presented a dangerous condition,” but the Court of Appeals disagreed. The Court noted that plaintiff’s only evidence that the cap was dangerous was the evidence of her own fall and the fall of the alleged other unnamed homeowner, and that “[n]egligence cannot be presumed by the mere happening of an injury or accident.” (internal citation omitted). In addition, plaintiff had admitted that she would have seen and avoided the cap if she had been looking forward while walking. The Court ruled that “the facts presented fail[ed] to establish that a dangerous or defective condition existed on the sidewalk and that Plaintiff failed to establish the City’s duty of care under the circumstances presented.” (internal citation omitted).
Regarding the claims against Goodall, the trial court had found in part that the claim was barred by the applicable statute of repose found in Tenn. Code Ann. § 28-3-202, which bars claims for deficient construction brought more than four years after substantial completion of the construction. The Court of Appeals noted that plaintiff made “a thinly supported argument to establish that the statute of repose does not bar a suit for negligent construction when the area in question was dedicated to the City within the statute of repose,” but the Court stated that the statute of repose “does not support such an argument.” Accordingly, Goodall could only be liable if it “undertook a duty to maintain or warn about a dangerous condition on the sidewalk beyond the four-year statute of repose.” Plaintiff attempted to use evidence of “Goodall’s discussions concerning the cap” to invoke this exception, but the Court found that such evidence was inadmissible under Tennessee Rule of Civil Procedure 407, and that plaintiff thus failed to present sufficient evidence that such a duty was undertaken by Goodall.
Due to the ruling that “Defendants affirmatively negated an essential element of Plaintiff’s claim,” the Court stated that analyzing the apportionment of fault to plaintiff was unnecessary. Summary judgment for defendants was affirmed.
It is important to remember in premises liability cases that evidence of a fall alone is often not enough to show that a dangerous condition existed. Further, when trying to bring premises liability claims based on the construction of an allegedly dangerous condition, a plaintiff must be aware of the potential impact of the statute of repose for improvements to real property.
This opinion was released 1.5 months after the case was assigned on briefs.
Note: Chapter 41, Section 7 and Chapter 89, Sections 1 and 6 of Day on Torts: Leading Cases in Tennessee Tort Law has been updated to include this decision.
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