Day on Torts
In Fowler v. City of Memphis, No. W2015-01637-COA-R3-CV (Tenn. Ct. App. Aug. 11, 2016), the Court of Appeals analyzed a case falling under the GTLA, ultimately holding that while plaintiff appeared to be making a premises liability claim, the case actually fell under a different provision of the Act.
Plaintiff was injured when he fell into an uncovered water meter in a sidewalk near his home. Plaintiff filed suit against various entities, but the one at issue on this appeal was Memphis Light, Gas, and Water. “According to the complaint the uncovered water meter was a dangerous condition of which [defendant] had actual and constructive knowledge.”
Defendant filed a motion for summary judgment, arguing that it “had no notice that the water meter box cover had been tampered with or that a dangerous condition existed at the location of [plaintiff’s] fall.” Defendant asserted that the water meter at issue had been taken out of service in 2007, and a cover had been put over it.
In response to the motion for summary judgment, plaintiff submitted a statement of facts, which included that defendant was “aware that the locking mechanism on its water meter covers may be unlocked by using only a finger;” that individuals could override the locking mechanisms on the water meters; and that defendant knew that “theft of water meter covers [was] becoming more common.”
The trial court granted summary judgment to defendant, finding that defendant did not create the dangerous condition and did not have actual or constructive notice of the dangerous condition at issue. The Court of Appeals affirmed in part and vacated in part, remanding the case to the trial court.
First, the Court affirmed summary judgment on any claims arising under Tenn. Code Ann. § 29-20-203 and -204, the portion of the GTLA that addresses liability for “dangerous or defective condition[s].” The Court noted that the GTLA “essentially codifies the common-law” premises liability rule that, in order to hold the governmental entity liable, plaintiff must show that defendant either created the condition or had actual or constructive knowledge of it. In order for immunity to be removed under a premises liability theory, the GTLA “requires notice of the actual defective or dangerous condition alleged to have caused the loss,” so here, the Court would “consider only the notice given to [defendant] regarding the dangerous condition of the particular water meter at issue.”
The Court first analyzed the issue of whether defendant had created the dangerous condition at issue, finding that it had not. The Court noted that there was no evidence, and no allegation, that defendant actually removed the cover. Instead, plaintiff asserted that defendant created the condition by putting on a cover that was easily removable. The Court rejected that claim, however, comparing this case to a guardrail case wherein it was held that the city’s decision to install guardrails that could be easily removed did not mean the city had created the allegedly dangerous condition. The Court held that “[t]he fact that [defendant] installed water meter covers that proved to be easily-tampered-with by third parties…is simply not sufficient to remove immunity under Tennessee Code Annotated Sections 29-20-203 and -204.”
Next, the Court looked at actual and constructive notice. The Court found that there was no evidence that defendant had actual notice and that there was no evidence regarding how long the cover had been missing from which the Court could find that defendant reasonably should have known. “A lack of evidence on this issue is often fatal to a claim of constructive notice.” (internal citation omitted). The Court also found that plaintiff could not prove constructive notice through a common occurrence. Even though some other covers had been stolen, the Court stated that “plaintiff must show that the dangerous condition occurred in the same approximate location and in such a frequent manner, that the happening of the condition was foreseeable by the defendants.” (internal citation omitted). Here, plaintiff walked by the area daily and had never noticed the cover missing, and there was no evidence regarding missing covers nearby. Accordingly, the Court determined that plaintiff had not proven actual or constructive notice and affirmed summary judgment on the premises liability claims.
This, however, did not end the Court’s analysis. Looking to the substance of plaintiffs’ claims, the Court explained that plaintiff was arguing that defendant
essentially created the dangerous situation at issue through a series of faulty decisions: (1) the decision to install the water meter hole in the middle of a sidewalk, despite an ordinance that requires water meters be placed in grassy areas where available; (2) the decision to use a water meter cover that can easily be tampered with, despite an ordinance that requires holes in sidewalks be securely covered; and (3) the decision not to regularly inspect the water meters, despite knowledge that the covers are easily removed and in fact, have been removed in many instances throughout the City.
Looking at the complaint and plaintiff’s arguments and briefs as a whole, the Court concluded that this claim fell more properly under Tenn. Code Ann. § 29-20-205. This section of the GTLA deals with “removal of immunity for injury caused by the negligent act or omission of governmental employees.” (internal citation omitted). According to the Court in this case, “Tennessee courts have previously characterized claims involving decisions or designs that allegedly resulted in dangerous conditions as falling within the ambit of …Section 29-20-205.” (internal citations omitted). Previous claims that have been found to fall under § 29-20-205 include claims of negligence based on installing a traffic light with too short of a yellow light interval; deciding not to install a guardrail; deciding not to close a road; and installing a defective storm drain system that did not meet city standards.
Pursuant to § 29-20-205, “governmental entities are not immune from suit for injury caused by the negligence of their employees, except where the action of the employee involved the exercise of a ‘discretionary function’ or the failure to make an inspection.” Here, plaintiff had already agreed that any failure to inspect claim would fail, so the Court found that the remaining issue, which would be determinative of whether plaintiff’s claims could go forward, was whether the actions alleged here were discretionary functions performed by defendant. “Decisions that rise to the level of planning or policy-making are considered discretionary acts which do not give rise to tort liability, while decisions that are merely operational are not considered discretionary acts and, therefore, do not give rise to immunity.” (internal citation omitted). Because the inquiry into whether an action is a discretionary function is “fact-intensive…for which findings of fact are necessary,” the Court remanded the case for further review by the trial court.
The Court of Appeals did a good job here of looking past the form of the record and looking to the true substance of plaintiff’s claims. The Court could have just affirmed summary judgment due to the notice issue, but instead it spent the time to correctly characterized plaintiff’s allegations as falling under a difference section of the GTLA.