Day on Torts
Where plaintiff was injured in a car accident when a culvert underneath the road collapsed, and an inspector for defendant city had inspected the culvert the day before the accident and recommended construction begin just three days later to replace the culvert, summary judgment for defendant was reversed. In Carrick v. City of Shelbyville, Tennessee, No. M2020-01218-COA-R3-CV (Tenn. Ct. App. Aug. 5, 2021), plaintiff was driving down a road owned and controlled by defendant city when a culvert under the road “gave way and the asphalt crumbled,” and plaintiff’s “vehicle became lodged in the resultant hole.” Plaintiff brought this suit under the GTLA, asserting that the city’s immunity was removed pursuant to Tenn. Code Ann. § 29-20-203. The city filed a motion for summary judgment, arguing that plaintiff could not show that it had actual or constructive notice of the dangerous condition, and the trial court agreed, granting summary judgment. On appeal, that ruling was reversed.
It was undisputed that the city had the culvert inspected by Mr. Frazier on August 29, 2017, one day before the accident, and that as a result of that inspection, Mr. Frazier created a work order stating that work to replace the culvert would begin on September 1, 2017. The work order further provided that “the dig area will be through the road as we will replace the culvert.” In addition to the work order, the city submitted Mr. Frazier’s affidavit in support of summary judgment, in which he stated that “while the culvert needed replacing, he did not conclude from his inspection that the culvert posed ‘any threat to the stability or integrity of the road.’” The city also submitted affidavits stating that there had been “no previous complaints or reports regarding damage to the relevant portion” of the road.
While Tenn. Code Ann. § 29-20-203 removes governmental immunity “for any injury caused by a defective, unsafe, or dangerous condition on any street, alley, sidewalk or highway, owned and controlled by such governmental entity,” immunity is not removed unless plaintiff can show “constructive and/or actual notice to the governmental entity of such condition[.]” The issue here was whether plaintiff had shown that there was a genuine issue of material fact regarding whether the city had notice in this case. Plaintiff argued that “the August 29, 2017 work order create[d] a genuine issue of material fact regarding actual or constructive notice, inasmuch as the work order establish[ed] that the culvert at issue was inspected one day prior to [plaintiff’s] accident and that the City determined it needed replacement.” Plaintiff asserted that the “work order and the fact that the culvert and the road collapsed [the next day] create a genuine issue of material fact as to actual and/or constructive notice, and that Plaintiffs need not have provided anything further to survive summary judgment.” The City argued, on the other hand, that plaintiff “offered no affidavits or additional evidence of their own at the summary judgment stage to dispute Mr. Frazier’s statement that he did not believe the integrity of the road was threatened by the culvert…and that as such, this fact is undisputed.” The Court of Appeals agreed with plaintiff.
The Court reasoned:
Plaintiffs did not file any opposing affidavits in response to the City’s motion for summary judgment, [but] Rule 56 does not necessarily demand this. …In responding to the City’s motion, Plaintiffs cited to the work order… The work order provides that the culvert would be replaced on September 1, 2017, and that the ‘dig area will be through the road as we will replace the culvert.’ Consequently, based on the work order itself, a reasonable trier of fact could conclude that the City had actual or constructive notice that the culvert and/or the road atop the culvert were unsafe, dangerous, or defective.
The Court further agreed with plaintiff that although Mr. Frazier stated in his affidavit that he was not concerned with the condition of the road, “the undisputed fact that the road crumbled directly above the culvert the next day creates an issue as to whether Mr. Frazier’s belief was unreasonable.”
The Court of Appeals held that based on the evidence, “a rational trier of fact [could] conclude that the City had either actual or constructive notice of a defective, unsafe, or dangerous condition at the site of [plaintiff’s] accident.” Summary judgment was therefore reversed.
The Court of Appeals was correct in reversing summary judgment here. As the Court noted, there was a genuine issue of material fact regarding whether the city had notice of the dangerous condition, and plaintiff was not required by Rule 56 to submit his own additional evidence to oppose summary judgment when he could establish an issue of fact through the evidence submitted by defendant.
NOTE: This opinion was released two months after oral arguments in this case.