Odom v. City of Chattanooga ( 1998 )

IN THE COURT OF APPEALS
AT KNOXVILLE FILED
August 17, 1998
JAMES ODOM, SR., ) C/A NO. 03A01-9710-CV-00480
) Cecil Crowson, Jr.
Plaintiff-Appellant, ) Appellate C ourt Clerk
)
)
v. ) APPEAL AS OF RIGHT FROM THE
) HAMILTON COUNTY CIRCUIT COURT
)
)
)
CITY OF CHATTANOOGA, TENNESSEE, )
) HONORABLE L. MARIE WILLIAMS,
Defendant-Appellee. ) JUDGE
For Appellant For Appellee
ROBERT D. BRADSHAW LAWRENCE W. KELLY
Jenkins & Bradshaw, P.C. PHILLIP A. NOBLETT
Chattanooga, Tennessee Chattanooga, Tennessee
O P I N IO N
AFFIRMED AND REMANDED Susano, J.
1
The plaintiff, James Odom, Sr. (“Odom”), sued the City
of Chattanooga (“the City”) under the Tennessee Governmental Tort
Liability Act (“GTLA”),1 seeking damages for injuries suffered in
the course of his employment with the City’s Department of Public
Works. Odom alleges that he suffered a back and wrist injury as
a result of his extended use of a jackhammer and the performance
of other strenuous labor without the aid of proper equipment.
Following a bench trial, the trial court found in favor of the
City and dismissed the case. Odom appealed, raising issues that
present the following questions for our review:
1. Does the evidence preponderate against
the trial court’s finding that the plaintiff
failed to prove that the City violated
various training provisions and the general
duty clause of the Tennessee Occupational
Safety and Health Act of 1972?
2. Does the evidence preponderate against
the trial court’s finding that the plaintiff
failed to prove that the City violated its
Personnel Ordinances?
3. Was the City’s decision to place its
limited number of backhoes on certain
projects to the exclusion of others a
discretionary function so as to preserve the
City’s immunity from suit based on the
plaintiff’s claim that he was injured because
he was doing work that should have been
performed by a backhoe?
I. Standard of Review
Our review of this non-jury case is de novo upon the
record of the proceedings below; however, that record comes to us
with a presumption that the trial court’s factual findings are
1
T.C.A. § 29-20-101, et seq.
2
correct. Rule 13(d), T.R.A.P. We must honor this presumption
unless we find that the evidence preponderates against those
findings. Id.; Union Carbide Corp. v. Huddleston, 854 S.W.2d 87,
91 (Tenn. 1993); Old Farm Bakery, Inc. v. Maxwell Assoc., 872
S.W.2d 682, 684 (Tenn.App. 1993). The trial court’s conclusions
of law, however, are not accorded the same deference. Campbell
v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Presley
v. Bennett, 860 S.W.2d 857, 859 (Tenn. 1993).
Our de novo review is tempered by the well-established
principle that the trial court is in the best position to assess
the credibility of the witnesses; accordingly, such
determinations are entitled to great weight on appeal.
Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn.App. 1995);
Bowman v. Bowman, 836 S.W.2d 563, 566 (Tenn.App. 1991).
II. Facts
At the time of the events in question -- March 11
through 24, 1994 -- Odom was employed by the City as a “Laborer
III” on a street maintenance crew. Among other things, Odom’s
crew was assigned to clean up behind a milling machine, which was
used to cut up old asphalt in areas designated for repaving. In
addition to broken pieces of pavement, the milling machine
generally would leave a small margin of asphalt next to the
concrete curbs at the edge of the street. The record indicates
that a backhoe with a front-end loader (“backhoe”) was usually,
but not always, available to assist in scraping up the asphalt
left behind by the milling machine. The crew would then use a
3
jackhammer to loosen any remaining pieces of asphalt that had not
been scraped up by the backhoe and to remove the margin of
asphalt along the curb. Finally, a worker would shovel the
asphalt into the backhoe, which would then be used to load the
debris onto a truck.
From March 14 through March 24, 1994, Odom’s crew did
not have the use of a backhoe. Thus, Odom and his co-workers
were forced to use jackhammers to loosen most of the asphalt, and
shovels to load the broken asphalt into the truck. It was and is
Odom’s contention that his crew was deprived of a backhoe as
punishment for their slow work on the preceding Friday, March 11.
Odom contends that George Maffett, a general foreman in the
City’s street maintenance department, had decided that the men
were engaged in a “work slowdown” on that date. Odom testified
that his direct supervisor, Gerald Johnson, informed the crew
that they were being punished because of their slow work.
Johnson testified that Maffett had stated on March 11 that the
crew was not working fast enough. In addition, Johnson testified
that Maffett told him that a backhoe was not available for Odom’s
crew. Maffett also supposedly told Johnson that the crew did not
need a backhoe. Johnson also testified that Maffett may have
made a statement to the effect that if the men could not work
without a backhoe, “that they just won’t have one at all.”
Maffett, meanwhile, denied that he had punished the
crew by depriving it of a backhoe. Maffett testified that such
equipment was not always available for each job, and that
decisions regarding the allocation of equipment, although
4
sometimes left to him, were generally made by his own supervisor,
Paul Nation. Nation, the assistant superintendent in charge of
street maintenance for the City, testified that Odom’s crew had
not been provided a backhoe either because none were available,
or because no one was available to operate it. He testified that
the City owned three backhoes; there is evidence in the record
indicating that on most if not all of the dates in question, one
of the backhoes was in the shop, and the other two were being
used by other crews.2
Odom initially testified that he had been required to
use a jackhammer for approximately eight hours a day on March 14,
15, 16, 17, 18, 21, 22, 23, and 24. On cross examination,
however, he admitted that he had not worked on March 18, and that
his work on March 14 and 15 had not required the use of a
jackhammer. He also stated that he had only worked about an hour
and a half on March 24 before reporting the injury to his back.
During treatment for his back injury, Odom was also
diagnosed with carpal tunnel syndrome. These conditions
necessitated extensive treatment, including an operation and
physical therapy. According to Odom, he continues to have
extensive limitations on the use of his hand and back, and is
unable to perform his normal job duties. Odom filed this action
for damages against the City, alleging that the City’s negligence
in failing to provide him a safe place to work and the proper
equipment to carry out his duties had proximately caused his
2
Nation’s testimony indicates that the only date within the relevant
time frame on which the backhoes were not being used by other crews was March
18, 1994. Odom testified, however, that he did not work on that date.
5
injuries. The case proceeded to trial without a jury. Following
the close of all the proof, the trial court found, in pertinent
part, as follows:
Numerous repaving jobs and street repair
operations were being performed by the City
of Chattanooga in various locations in March
of 1994.
The personnel on each job do not necessarily
have a backhoe/front-end loader available to
them for use on each job.
Decisions concerning what equipment will be
used by what crew were made by Gerald
Johnson, George Maffet or Paul Nation, all of
whom were in the supervisory chain above Mr.
Odom.
At the time complained of, the machinery Mr.
Odom contends should have been available for
the crew he worked on was being used on other
jobs or in maintenance and was not available
to the crew on which Mr. Odom was working.
The plaintiff has not carried the burden of
proof that any absence of availability of
equipment to his crew was because of
punishment for a work slow-down.
The plaintiff has not carried the burden of
proof to show the jack hammer use by Mr. Odom
was in violation of OSHA or TOSHA.
The plaintiff has not proved fault on the
part of the defendant.
* * *
The Court finds the allocation of the
equipment for use by crews at various spots
in Chattanooga for the repaving or repair of
roads was a discretionary function and,
accordingly, the defendant is immune from
suit.
The plaintiff has not proven there is any
basis for removal of immunity in this
case....
6
The trial court thus dismissed the case, and Odom appealed. Odom
summarizes his argument on appeal as follows:
Because the City of Chattanooga violated its
own City Code in not training it safety
officers and employees in OSHA/TOSHA
requirements and the risks associated with
jackhammer use, in not taking measures to
abate the risk of serious personal injury
associated with Mr. Odom’s jackhammer use as
an employee of the City of Chattanooga, and
in disciplining the crew on which Mr. Odom
was working through subjecting them to
abusive working conditions, rather than
following the City Code’s provisions for
discipline, the City of Chattanooga must be
found to have committed three omissions/acts
that constitute fault for which there is no
immunity under the Governmental Tort
Liability Act....
III. Analysis
We first turn to Odom’s dual contentions that the City
was negligent in failing to properly train its supervisors and
laborers, and in failing to abate a known hazard, i.e., the risk
of injury from the use of a jackhammer. In this context, Odom
relies upon various provisions of Tennessee’s Occupational Safety
and Health Act of 1972 (“TOSHA”)3 regarding safety training that
have been incorporated into the City’s Code.4 He also cites
TOSHA’s “general duty clause” -- codified at T.C.A. § 50-3-
105(1)5 -- which has also been incorporated into the Code. In
3
See T.C.A. § 50-3-101, et seq.
4
See C HATTANOOGA , T ENN ., C ODE § 2-271, et seq.
5
T.C.A. § 50-3-105(1) provides that “[e]ach employer shall furnish to
each of their employees conditions of employment and a place of employment
free from recognized hazards that are causing or are likely to cause death or
serious injury or harm to their employees.” The City’s Code contains a
similar provision regarding “known or recognized hazards” but allows the
employer “a reasonable period of time to correct any such hazards” once it
becomes aware of them. See C HATTANOOGA , T ENN ., C ODE § 2-274.
7
support of his position, Odom introduced, among other things, the
testimony of Dr. Tyler Kress, who opined that the City had not
complied with OSHA’s6 training requirements with regard to the
safe operation of jackhammers and the recognition of carpal
tunnel syndrome. Dr. Kress also testified that Odom’s work
pattern was in violation of the general duty clause.
We note that it was apparently Dr. Kress’ understanding
that Odom had essentially operated a jackhammer continuously for
seven work days -- an assumption that is in conflict with Odom’s
own testimony, as pointed out above. Dr. Kress also admitted
that OSHA had yet to promulgate any regulations or guidelines
regarding repetitive-motion injuries or the relationship between
the use of vibrating tools and carpal tunnel syndrome.
Furthermore, Tracy Clark, an employee of the City responsible for
OSHA/TOSHA compliance, testified that as of March of 1994, no
OHSA/TOSHA standards regarding jackhammer use had been put into
effect. Clark’s testimony was reinforced by that of James
Alsobrook, who works for the Tennessee Department of Labor in the
area of TOSHA compliance. Alsobrook also testified that he had
never applied the general duty clause to the use of a jackhammer.
With regard to Odom’s arguments concerning the City’s
alleged violations of various training provisions and the general
duty clause, it is clear that the trial court found that Odom had
failed to prove essential elements of his claim, i.e., that the
jackhammer had in fact been used improperly and/or that improper
use was the cause of Odom’s injuries. In so finding, the trial
6
Occupational Safety and Health Act of 1970, 29 U.S.C. § 651, et seq.
8
court accredited testimony elicited by the City to the effect
that no applicable standards or regulations existed, and that the
City thus had not failed to comply with OSHA/TOSHA or its own
Code. With deference to the trial court’s credibility
determinations, Massengale, 915 S.W.2d at 819, we cannot say that
the evidence preponderates against its finding that Odom failed
to prove its cause of action predicated on the training
provisions and the general duty clause.
We reach a similar conclusion regarding Odom’s
contention that the trial court erred in failing to find
negligence in the City’s alleged violation of various “Personnel
Ordinances” contained within its Code. In this connection, Odom
argues that the City ignored applicable disciplinary procedures
and instead subjected Odom’s crew to abusive working conditions
as a form of punishment. However, the trial court specifically
found that Odom had “not carried the burden of proof that any
absence of availability of equipment to his crew was because of
punishment for a work slowdown.” In so holding, the trial court
obviously accredited the testimony of Maffett and Nation, who
maintained that the unavailability of the equipment was not
intended as punishment, but was simply because the equipment had
been assigned to other, higher-priority jobs or was undergoing
maintenance at the time. We again note that the trial court was
in the best position to make such credibility determinations,
Massengale, 915 S.W.2d at 819; in light of this consideration,
and the substantial evidence in the record which supports the
trial court’s findings, we cannot say that the evidence
preponderates otherwise.
9
Since the trial court found no negligence with respect
to the City’s duties under TOSHA, OSHA, or its Personnel
Ordinances, it did not address whether such negligence, if
proven, would result in a removal of immunity under the GTLA; nor
do we.
With respect to Odom’s third issue, the trial court
concluded that “the allocation of the equipment for use by crews
at various spots in Chattanooga for the repaving or repair of
roads was a discretionary function and, accordingly, the
defendant is immune from suit.” T.C.A. § 29-20-205, found within
the GTLA, provides, in pertinent part, as follows:
Immunity from suit of all governmental
entities is removed for injury proximately
caused by a negligent act or omission of any
employee within the scope of his employment
except if the injury:
(1) Arises out of the exercise or performance
or the failure to exercise or perform a
discretionary function, whether or not the
discretion is abused....
As stated by the Supreme Court,
...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.
* * *
A consideration of the decision-making
process, as well as the factors influencing a
particular decision, will often reveal
whether that decision is to be viewed as
planning or operational.... [Planning, i.e.,
10
discretionary] decisions often result from
assessing priorities; allocating resources;
developing policies; or establishing plans,
specifications, or schedules.
Bowers by Bowers v. City of Chattanooga, 826 S.W.2d 427, 430-31
(Tenn. 1992). (Emphasis Added). By the same token, the Supreme
Court recently noted in another opinion that “[d]ecisions that
include the allocation of limited resources among competing needs
do not need interference from the courts, absent clear guidance
from the legislature to the contrary.” Helton v. Knox County,
Tennessee, 922 S.W.2d 877, 887 (Tenn. 1996).
Upon review of the evidence in this case, we are of the
opinion that the decision regarding whether a backhoe would be
provided to Odom’s crew was a discretionary one. It necessarily
involved “the allocation of resources” among competing jobs of
various priorities. See Helton, 922 S.W.2d at 887, and Bowers,
826 S.W.2d at 431. Thus, the City did not lose its immunity for
injuries suffered by Odom as a result of the fact that his crew
did not have a backhoe to perform their assigned tasks.
IV. Conclusion
In summary, we hold that the evidence does not
preponderate against the trial court’s findings regarding the
plaintiff’s failure to carry his burden of proof. We also hold
that the trial court correctly determined that the City is immune
from liability arising out of its discretionary decisions
regarding the allocation of the equipment in question.
11
Accordingly, the decision of the trial court is affirmed. Costs
on appeal are taxed to the appellant. This case is remanded to
the trial court for the collection of costs assessed there,
pursuant to applicable law.
__________________________
Charles D. Susano, Jr., J.
CONCUR:
_________________________
Herschel P. Franks, J.
_________________________
William H. Inman, Sr.J.
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