Day on Torts
Where plaintiff was injured when he was standing on the water meter box in his yard and the concrete cover unexpectedly moved, and the governmental water authority had noted that the box needed to be replaced four months before the incident, the Court of Appeals affirmed a finding that the water authority was 100% at fault for plaintiff’s injuries.
In Cox v. Water and Wastewater Treatment Authority of Wilson County, Tennessee, No. M2018-00433-COA-R3-CV (Tenn. Ct. App. Jan. 31, 2020), plaintiff was scraping ice off his truck and had to stand on the concrete cover on the water meter in his yard. While he was standing on it, the “concrete cover fell into the box beneath it,” causing plaintiff to break a bone in his foot.
Plaintiff filed this GTLA suit alleging that defendant water authority “had actual and/or constructive notice that the water meter box was in an unreasonably dangerous, defective and unsafe condition and that the company failed to alleviate or warn of the danger.” Defendant denied having notice and raised the affirmative defense of comparative fault.
At trial, the evidence showed that plaintiff’s meter box was made of heavy plastic, and while defendant testified that these boxes were “safe and durable,” during the last ten years defendant had switched over to using concrete boxes. However, defendant “replaced existing plastic meter boxes only if a leak was discovered or the box was otherwise damaged.” Defendant admitted at trial that plastic boxes “were routinely damaged by lawn mowers, tractors and other equipment,” and that it “replaced hundreds of boxes each year.”
Plaintiff’s particular box had received a replacement cover two times, with the second replacement being a concrete cover on the plastic box. Using a concrete cover on a plastic box was “not uncommon.” Plaintiff brought his plastic box to court, and it was clear that a “large part of the lip or ridge that held the cover in place was damaged.” Plaintiff alleged that an employee of defendant told him the box should have been replaced sooner, but the employee denied making that statement. Defendant asserted that it had no notice that plaintiff’s box was in a dangerous condition before the accident, but four months prior to plaintiff falling, a field supervisor had submitted a work order for plaintiff’s box to be replaced. The field supervisor stated that the replacement order was because a piece was missing from a corner causing a gap that could cause freezing and not because of safety concerns, but he conceded that he knew the box was damaged.
The trial court found that defendant had actual notice that the box was damaged and was 100% at fault for plaintiff’s injuries, awarding plaintiff almost $55,000 in economic damages and $62,500 in noneconomic damages. The Court of Appeals affirmed this ruling.
On appeal, defendant first argued that the trial court should have waived a local rule requiring motions for summary judgment to be heard at least 60 days before trial and set a hearing for defendant’s motion. The Court quickly rejected this argument, finding no abuse of discretion by the trial court.
Defendant next argued that plaintiff’s physician expert was not qualified to testify that the medical bills from other providers were reasonable and necessary, and the Court also quickly rejected this argument. The Court noted that the physician treated plaintiff and was familiar with his condition, and that the physician also “expressed familiarity with the treatment [plaintiff] received from other medical professionals and the customary charges for those services.” (internal citation omitted).
Defendant also challenged the trial court’s adoption of findings of fact and conclusions of law submitted by plaintiff’s counsel, but the Court found that “the written order accurately reflect[ed] the court’s bench ruling.”
Next, defendant challenged the finding of liability. Here, the Court pointed out that the evidence showed that the field supervisor knew the box was damaged and “acknowledged that a meter box without a structurally sound inner lip was dangerous.” The Court noted that a work order was submitted four months before the incident and that “a damage report to a governmental entity is generally sufficient to provide actual notice of a dangerous or defective condition.” (internal citation omitted). Although the supervisor said his replacement order was not based on a safety concern, the trial court “did not credit [his] testimony on this point,” and the Court of Appeals stated that it would not “second guess the court’s credibility determination.”
In addition, defendant argued that the trial court should have found plaintiff at least partially at fault. At trial, defendant argued that plaintiff damaged the box by driving over it, but plaintiff testified that he did not drive over it. The trial court found plaintiff to be a “very credible witness,” and the Court of Appeals noted that it gave “great deference to the trial court’s credibility determinations.”
Finally, defendant challenged the amount of damages awarded to plaintiff. Noting that noneconomic damages are “highly subjective,” the Court stated that it affords the “trier of fact broad latitude,” and it pointed to plaintiff’s permanent limp and inability to enjoy former activities in affirming the award.
Having rejected all of defendant’s arguments, the trial court’s finding of 100% liability on defendant was affirmed.
The plaintiff in this case had strong evidence to work with, presented the evidence well, and apparently was a credible witness in court. The Court of Appeals was right to affirm liability on the water authority where it had ample notice that the meter box needed to be replaced.
NOTE: to aid lawyers in giving clients guidance about how long it takes to receive an opinion after oral argument in the appellate courts, we are going to start sharing that information with readers. Please understand that the length of time that elapses between oral argument and the date the opinion is released is dependent on a multitude of factors, not the least of which is the complexity of the issues presented. In this case, the opinion was released almost fourteen months after oral argument.