Marleta Costner v. Maryville-Alcoa-Blount County Parks & Recreation Commission ( 2022 )

08/03/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
January 19, 2022 Session
MARLETA COSTNER ET AL. v. MARYVILLE-ALCOA-BLOUNT
COUNTY PARKS & RECREATION COMMISSION ET AL.
Appeal from the Circuit Court for Blount County
No. L-19719 David R. Duggan, Judge
___________________________________
No. E2021-00189-COA-R3-CV
___________________________________
In this premises liability action, the plaintiffs sued three local governments and a parks and
recreation commission, jointly created by the local governments, to recover for injuries
suffered by one of the plaintiffs when she stepped into a hole while attending a concert at
a park maintained by the commission. The trial court dismissed the action as to the three
local governments, concluding that they were immune under the state’s Governmental Tort
Liability Act (“GTLA”). Later, the trial court granted the commission’s motion for
summary judgment, ruling that the commission enjoyed immunity under both the GTLA
and the state statutes known as the Recreational Use Statutes. We dismiss the appeal as to
the three local governments, concluding we lack subject matter jurisdiction because
plaintiffs failed to timely initiate an appeal against them. We affirm the trial court’s holding
that the commission retained immunity under both the GTLA and the Recreational Use
Statutes.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
KRISTI M. DAVIS, J., delivered the opinion of the Court, in which ANDY D. BENNETT and
JOHN W. MCCLARTY, JJ., joined.
Clifford E. Wilson, Madisonville, Tennessee, for the appellants, Marleta Costner and
Robert Costner.
Craig L. Garrett, Maryville, Tennessee, for appellee Blount County, Tennessee; Benjamin
K. Lauderback, Knoxville, Tennessee, for appellees City of Maryville and Maryville-
Alcoa-Blount County Parks and Recreation Commission; and Shelly L. Wilson and Sarah
D. Jarrard, Knoxville, Tennessee, for the appellee City of Alcoa.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
The material facts in this case are not in dispute. In September 2016, Marleta
Costner and her husband, Robert Costner, attended a concert at Springbrook Park (“the
Park”), which is located within and owned by the City of Alcoa, Tennessee (“Alcoa”).
While at the Park, Mrs. Costner stepped into a hole covered by grass clippings and broke
a bone in her right ankle. Her injury required medical treatment, which interfered with her
regular household duties, her job as a special education teacher, and her marital relations.
In September 2017, the Costners sued Alcoa in the Blount County Circuit Court
(“the trial court”), averring that Alcoa had a duty to keep the Park safe for concert attendees
by either filling any existing holes or marking them so as to prevent potential injury. Their
complaint also included a claim for loss of consortium on behalf of Mr. Costner. In its
Answer, Alcoa admitted that it owned the Park but denied that it controlled it. Alcoa
asserted multiple affirmative defenses, including immunity under the GTLA, comparative
fault of the Costners, and third party and/or comparative fault of the Maryville-Alcoa-
Blount County Parks and Recreation Commission (“the Commission”). Thereafter, Alcoa
moved for summary judgment, arguing that it was not liable for Mrs. Costner’s injuries
under the GTLA, specifically Tennessee Code Annotated section 29-20-204(a), because
the statute requires both ownership and control of the location where the injury occurred
for immunity to be removed. Although it owned the Park, Alcoa submitted that there was
no dispute that the Park was controlled by the Commission. In February 2018, the Costners
filed an Amended Complaint to (1) include Blount County (“the County”), the City of
Maryville (“Maryville”), and the Commission as defendants in the action, and (2) allege
that all four defendants are “jointly and severally liable” because the Commission is “a
joint venture established and controlled” by Alcoa, Maryville, and the County.
On October 16, 2018, the trial court entered an order granting Alcoa’s motion for
summary judgment, finding that Alcoa was immune from suit under the GTLA because it
was undisputed that it does not control the Park. In the same order, the trial court dismissed
the Costners’ claims against Maryville and the County, finding (1) that under the GTLA,
neither entity owned or controlled the area where Mrs. Costner was injured and (2) that the
complaint against them had been filed outside the GTLA’s twelve-month statute of
limitations and that Tennessee Code Annotated section 20-1-119 did not extend the time
period for such filing, given that Alcoa named neither Maryville nor the County as a
comparative fault defendant in its answer to the complaint. In addition, the trial court
granted the Commission’s motion for a more definite statement and ordered the Costners
to amend their Amended Complaint to state more specifically their claims and allegations
against the Commission.1 In November 2018, the Costners filed a Second Amended
1
The record before us does not include the motions to dismiss respectively filed by Maryville and
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Complaint naming the Commission as the only defendant. Discovery followed.
In August 2020, the Commission moved for summary judgment, arguing that it was
immune from suit under both the GTLA and the Recreational Use Statutes. As to the
former, the Commission asserted that the Costners could not prove that it both owned and
controlled the Park, as required under the GTLA, or that it had actual or constructive notice
of any hole in the Park prior to or at the time of the concert. With respect to the latter, the
Commission contended that Mrs. Costner’s attendance to the concert was a recreational
activity subject to the Recreational Use Statutes and, furthermore, that the Costners could
not prove the gross negligence, willful, or wanton conduct necessary to remove the
immunity provided by these Statutes. In their response to the Commission’s motion, the
Costners argued that “attending a concert at a park” is not a recreational activity under the
Recreational Use Statutes and that the Commission’s reading of the GTLA would result
“in the inability of any injured party from successfully suing for injuries sustained in any
of the parks no matter how egregious the circumstances of the case might be.” The
Commission later supplemented the motion to add undisputed material facts. The Costners
responded by asserting that the Commission is a “joint venture” as defined in Tennessee
Code Annotated section 12-9-101 et seq., the Interlocal Cooperation Act, and that,
therefore, it could not be relieved of “any obligation or responsibility imposed upon it by
law.” See Tenn. Code Ann. § 19-9-104(e)(1). The trial court heard the motion in mid-
December 2020.
On January 25, 2021, the trial court filed an order granting the Commission’s motion
for summary judgment on two independent grounds. First, the trial court ruled that the
Commission was immune from suit under the GTLA because the Commission did not own
the Park and did not have actual or constructive notice of the hole that caused Mrs.
Costner’s injuries. Second, the trial court determined that the Commission was immune
from suit under the Recreational Use Statutes, finding as a matter of law that attendance at
a concert at a park “is a cultural activity and a recreational activity.” Further, it found that
the Costners did not set forth any facts that could support a finding of gross negligence on
the part of the Commission that would operate to remove immunity under the Statutes.
The Costners timely appealed. Their notice of appeal listed only the trial court’s
January 25, 2021 order as the judgment being appealed. Similarly, the notice listed the
Commission as the only appellee and was served only upon the Commission. Plaintiffs’
opening brief, however, was served upon counsel for Alcoa, Maryville, Blount County,
and the Commission, designating the Commission as “appellee” and the three local
governments as “former Defendant[s]” in the brief’s certificate of service. Maryville
moved this Court to dismiss the appeal after receiving a copy of the Costners’ opening
brief, arguing that Maryville was not a proper party to the appeal because it had not been
the County or the motion for a more definite statement filed by the Commission. However, no party has
objected to the characterization of these motions as presented in the trial court order adjudicating them.
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served with a timely notice of appeal. By order dated August 10, 2021, this Court deferred
resolution of the issue of whether Alcoa, Maryville, and the County are proper parties to
the appeal to this panel, ordered the parties to fully brief the issue, and allowed the Costners
additional time to submit an amended brief to address this question.
ISSUES PRESENTED
As we perceive it, the parties raise the following issues for our review:
1. Whether Alcoa, Maryville, and the County are proper parties to this appeal.
2. Whether the trial court erred in dismissing the Costners’ claims against Alcoa,
Maryville, and the County where these local governments are partners in a joint
venture.
3. Whether the trial court erred in applying the GTLA to grant the motions for
summary judgment submitted, respectively, by Alcoa and the Commission.
4. Whether the trial court erred in its application of the Recreational Use Statutes to
grant the motions for summary judgment submitted, respectively, by Alcoa and the
Commission.
STANDARD OF REVIEW
The grant or denial of a motion for summary judgment is a matter of law; therefore,
our standard of review is de novo with no presumption of correctness. See Rye v. Women’s
Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015). This Court must
“make a fresh determination of whether the requirements of Rule 56 of the Tennessee Rules
of Civil Procedure have been satisfied.” Id. A trial court may grant summary judgment
only if the “pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits . . . show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” Tenn. R. Civ. P.
56.04. To prevail on a motion for summary judgment, the movant must either (1)
affirmatively negate an essential element of the nonmoving party’s claim or (2)
demonstrate that the nonmoving party’s evidence at the summary judgment stage is
insufficient to establish the nonmoving party’s claim or defense. Rye, 477 S.W.3d at 264.
To survive a properly supported motion for summary judgment, the nonmoving party “by
affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that
there is a genuine issue for trial.” Tenn. R. Civ. P. 56.06. “[T]he evidence must be viewed
in a light most favorable to the claims of the nonmoving party, with all reasonable
inferences drawn in favor of those claims.” Rye, 477 S.W.3d at 286.
This appeal also involves issues of statutory interpretation concerning the GTLA
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and the Recreational Use Statutes. The polestar of statutory interpretation is the intent and
purpose of the legislature in enacting the statute. Nationwide Mut. Fire Ins. Co. v. Memphis
Light, Gas & Water, 578 S.W.3d 26, 30 (Tenn. Ct. App. 2018); see also Griffin v. Campbell
Clinic, P.A., 439 S.W.3d 899, 903 (Tenn. 2014) (noting that the court’s goal in statutory
construction is to “ascertain and give effect to the legislature’s intent” (citing Eastman
Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004))). We begin by “reading the
words of the statutes using their plain and ordinary meaning in the context in which the
words appear.” Nationwide, 578 S.W.3d at 30. If the language is clear and unambiguous,
we look no further than the language of the statute itself to determine its meaning. Id. We
are compelled to apply the statute’s “‘plain meaning in its normal and accepted use.’”
Griffin, 439 S.W.3d at 903 (quoting Eastman, 151 S.W.3d at 507). We do not read sections
of a statute “in isolation,” however. Id. (citing Kradel v. Piper Indus., Inc., 60 S.W.3d 744,
750 (Tenn. 2001)). Rather, we read a statute “as a whole . . . in conjunction with [its]
surrounding parts, and view [it] consistently with the legislative purpose.” Id.ANALYSIS
Before addressing the substantive issues raised by the parties, we must first
determine whether Alcoa, Maryville, and Blount County are proper parties to this appeal.
As stated above, the Costners neither listed these governmental entities as appellees in its
notice of appeal nor served them with the notice.
Proper Parties to this Appeal
The Costners assert that Maryville is a proper party to this appeal. Although the
notice of appeal was not served on Maryville, they argue that service on the attorney that
represents both Maryville and the Commission should be sufficient notice to Maryville.
As to Alcoa and Blount County, the Costners submit that Alcoa, Maryville, and Blount
County are all “partners” in a “joint venture” and, therefore, notice to one partner serves as
notice to all partners under Tennessee Code Annotated section 61-1-102(f). Last, they note
that their opening brief was served on all defendants below. For their part, the two cities
and the county respond that none of them was served with the notice of appeal or even
listed as appellees in the notice, in contravention of the Tennessee Rules of Appellate
Procedure. Moreover, they point out, the only judgment for appeal listed in the notice is
the trial court’s January 25, 2021 order, which does not apply to any of them. They further
argue that the Costners’ reliance on section 61-1-102(f) is misplaced because the
Commission is not a business for profit subject to the Tennessee Revised Uniform
Partnership Act; instead, they submit, the Commission was formed under the Tennessee
Interlocal Cooperation Act, Tennessee Code Annotated section 12-9-101 et seq. In
addition, Alcoa, Maryville, and Blount County contend that the Costners waived the issue
of “joint venture” because it was not raised before the trial court in response to their
respective motions to dismiss and for summary judgment.
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An appeal as of right to this Court is initiated by “by timely filing a notice of appeal
with the clerk of the appellate court as provided in Rule 4 and by service of the notice of
appeal as provided in Rule 5.” Tenn. R. App. P. 3(e) (emphasis added). The notice of
appeal “shall designate the judgment from which relief is sought.” Tenn. R. App. P. 3(f).
It “shall be filed with the clerk of the appellate court within 30 days after the date of entry
of the judgment appealed from.” Tenn. R. App. P. 4(a). ‘“In civil cases, the failure to
timely file a notice of appeal deprives the appellate court of jurisdiction to hear the
appeal.”’ Briley v. Chapman, 182 S.W.3d 884, 889 (Tenn. Ct. App. 2005) (quoting Arfken
& Assocs. v. Simpson Bridge Co., 85 S.W.3d 789, 791 (Tenn. Ct. App. 2002)). This Court
is without authority to suspend the requirements of Rule 4 to extend the time for filing a
notice of appeal. Tenn. R. App. P. 2. Consequently, “[i]f the notice of appeal is not timely
filed, the appellate court is required to dismiss the appeal.” Arfken, 85 S.W.3d at 791.
As to service, “[n]ot later than 7 days after filing the notice of appeal, the appellant
in a civil action shall serve a copy of the notice of appeal on counsel of record for each
party or, if a party is not represented by counsel, on the party.” Tenn. R. App. P. 5(a)
(emphasis added). Our Supreme Court has explained that “[s]ervice on opposing counsel
meets the need of procedural fairness by informing adversary counsel that an appeal is
intended.” Cobb v. Beier, 944 S.W.2d 343, 345 (Tenn. 1997). Accordingly, this Court has
held that an appellant’s failure to comply with Rule 5(a) may deprive this Court of subject
matter jurisdiction. Hicks v. Seitz, No. E2014-02225-COA-R3-CV, 2015 WL 5602285, at
*8 (Tenn. Ct. App. Sept. 23, 2015) (“Because Mr. Seitz failed to comply with the service
requirement of Rule 5(a) as to Ms. Seitz, we conclude that this Court lacks subject matter
jurisdiction over the controversy involving Ms. Seitz’s dismissal from this action.”).
However, the operation of Rule 5(a) may be suspended for good cause. Id. (citing Tenn.
R. App. P. 2; G.F. Plunk Constr. Co., Inc. v. Barrett Props., Inc., 640 S.W.2d 215, 217
(Tenn. 1982); Keith v. Regal Real Estate Co., No. E2011-00337-COA-R3-CV, 2011 WL
6009625, at *2 (Tenn. Ct. App. Dec. 2, 2011)).
Here, the notice of appeal filed by the Costners listed only the Commission as
appellee; it made no reference to Alcoa, Maryville, or Blount County. Also, the notice of
appeal (1) designated only the trial court’s January 25, 2021 order as the final judgment
being appealed as the Commission was the only defendant subject to that order; and (2)
listed the Commission on the certificate of service as the only named appellee. From the
notice of appeal’s internal consistency, we find it evident that the Costners intended to
initiate this appeal only as to the Commission and as to the trial court’s order dismissing it
from the lawsuit. Moreover, it is undisputed that the Costners did not actually serve Alcoa
or Blount County or their respective counsel with a copy of the notice of appeal. Given
that the notice does not mention Maryville or list a final judgment to which Maryville is
subject, we reject the Costners’ theory that serving the notice of appeal on the attorney for
the Commission constitutes service on Maryville simply because both entities shared the
same attorney before the trial court. Furthermore, we perceive no good cause to suspend
the service requirements of Rule 5(a) given that Alcoa, Maryville, and Blount County were
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not served with a document in this appeal—the Costners’ original opening brief—until July
2021, which was more than five months after the filing of the trial court’s order being
appealed. Even then, the certificate of service on the brief specifically designated each of
the three governmental entities as a “(former Defendant),” in contrast with the
Commission’s designation as “(Appellee).”
Considering these facts in light of the authorities cited above, we conclude that the
Costners failed to initiate an appeal as to Alcoa, Maryville, or Blount County in accordance
with the Tennessee Rules of Appellate Procedure. This Court has stated that “in order for
an appellant to satisfy the requirements of Rule 3(e) and take an appeal as of right before
this Court, the appellant must satisfy the requirements of both (1) filing a timely notice of
appeal pursuant to Rule 4 and (2) serving each party or counsel for each party with a copy
of the notice of appeal pursuant to Rule 5.” Hicks, 2015 WL 5602285, at *8. The notice
of appeal did not name any of these three governmental entities as appellees and did not
list a final order to which any of them is subject. The Costners did not serve a copy of the
notice on any of them. To exercise jurisdiction over parties unnamed in and unserved with
the notice of appeal would amount to an impermissible extension of the time for filing a
notice of appeal. We are therefore deprived of jurisdiction and are required to dismiss the
appeal as to Alcoa, Maryville, and Blount County.
The Costners attempt to excuse their failure to include or serve Alcoa, Maryville,
and Blount County with their notice of appeal by contending that these entities are
“partners” in a “joint venture,” namely the Commission, and that, therefore, the notice of
appeal served on the Commission operates as notice to all these partners. For the reasons
that follow, the Costners’ reliance on Tennessee Code Annotated section 61-1-102(f) is
misplaced.
Effective January 1, 2002, Tennessee repealed its Uniform Partnership Act of 2014
and enacted the Revised Uniform Partnership Act (“RUPA”), codified at Tennessee Code
Annotated section 61-1-101 et seq. See 2001 Tenn. Pub. Act. ch. 353. Under RUPA,
“Partnership” is defined as “an association of two (2) or more persons to carry on as co-
owners of a business or other undertaking for profit formed under § 61-1-202, predecessor
law, or comparable law of another jurisdiction.” Tenn. Code Ann. § 61-1-101(7). As our
Supreme Court has explained, “the existence of a partnership may be implied from the
circumstances where it appears that the individuals involved have entered into a business
relationship for profit, combining their property, labor, skill, experience, or money.” Bass
v. Bass, 814 S.W.2d 38, 41 (Tenn. 1991) (footnote omitted). Without offering any
argument, the Costners conclusorily propose that the Commission is a partnership bound
by RUPA and point to section 61-1-102(f), which states:
A partner’s knowledge, notice, or receipt of a notification of a fact relating
to the partnership is effective immediately as knowledge by, notice to, or
receipt of a notification by the partnership, but is not effective as such if the
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partner committed or consented to a fraud on the partnership.
Tenn. Code Ann. § 61-1-102(f). This argument lacks merit for multiple reasons. First, a
partnership, as defined and governed by RUPA, encompasses “an association of two (2) or
more persons to carry on as co-owners of a business or other undertaking for profit.” Id. §
61-1-101(7) (emphasis added). There is no evidence in the record before us showing that
the Commission was formed to carry on business or other undertaking for profit.2 Second,
RUPA applies to partnerships created “under § 61-1-202, predecessor law, or comparable
law of another jurisdiction.” Id. § 61-1-101(7). Here, as the Costners concede, the
Commission was created pursuant to Tennessee Code Annotated section 12-9-101 et seq.,
the Tennessee Interlocal Cooperation Act, not section 61-1-202 or a predecessor thereof.
Last, by operation of section 61-1-102(f), a partnership is imputed with “[a] partner’s
knowledge, notice, or receipt of a notification of a fact relating to the partnership.” Even
assuming arguendo that Alcoa, Maryville, and Blount County formed the Commission as
partners, the Costners served their notice of appeal on the Commission alone; that is, on
the alleged partnership itself, not one of its partners. They ask us to imply the reverse of
what the statute provides. Section 61-1-102(f) is simply inapplicable here.3
Having found that Alcoa, Maryville, and Blount County are not proper parties to
this appeal, we pretermit the issues raised by the Costners as to those entities. We turn
now to examine whether the trial court correctly granted summary judgment to the
Commission—the only proper party to this appeal—based on the immunity from suit
provided under these statutes.
Parks & Recreation Commission
Immunity under the GTLA
In Tennessee, except as provided under the GTLA, “all governmental entities shall
be immune from suit for any injury which may result from the activities of such
governmental entities wherein such governmental entities are engaged in the exercise and
2
Although RUPA does not define the term “for profit,” in context, we see no reason to deviate
from the commonly accepted meaning of the term: “The excess of revenues over expenditures in a business
transaction.” Profit, Black’s Law Dictionary (11th ed. 2019). In any case, the Costners presented no
argument to the contrary.
3
The Costners also contend on appeal that Alcoa, Maryville, and Blount County should not have
been dismissed from the suit because the Commission is a joint venture they created pursuant to section 12-
9-103 of the Tennessee Interlocal Cooperation Act. This issue, however, is waived because the Costners
did not raise it in response to Alcoa’s motion for summary judgment or to Maryville and Blount County’s
respective motions to dismiss. In re M.L.P., 281 S.W.3d 387, 394 (Tenn. 2009) (holding that parties that
fail to properly raise an issue in the trial court waive their right to argue this issue for the first time on
appeal). Unsurprisingly, then, the trial court did not address the issue in its October 2018 Order dismissing
Alcoa, Maryville, and Blount County from the action. Even if that order was properly before this Court,
which it is not, we would have no trial court ruling on the issue to review.
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discharge of any of their functions, governmental or proprietary.” Tenn. Code Ann. § 29-
20-201(a). In defining a governmental entity, the GTLA includes
a nonprofit public benefit corporation or charitable entity, including any
entity with tax exempt status under the Internal Revenue Code § 501(c)(3)
(26 U.S.C. § 501(c)(3)), that is appointed by statute, ordinance, resolution,
contract, or other governmental directive to develop, maintain, manage, and
provide services and activities at government owned property that is a public
park, including facilities located on park property.
Id. § 29-20-102(3)(A). “When immunity is removed by [the GTLA] any claim for damages
must be brought in strict compliance with the terms of this chapter.” Id. § 29-20-201(c).
Pertinent to the instant case, section 29-20-204 provides:
(a) Immunity from suit of a governmental entity is removed for any injury
caused by the dangerous or defective condition of any public building,
structure, dam, reservoir or other public improvement owned and controlled
by such governmental entity.
(b) Immunity is not removed for latent defective conditions, nor shall this
section apply unless constructive and/or actual notice to the governmental
entity of such condition be alleged and proved in addition to the procedural
notice required by § 29-20-302.
Id. § 29-20-204. “This section codifies the common law duty of care of owners and
occupiers of property.” Benn v. Pub. Bldg. Auth. of Knox Cnty., No. E2009-01083-COA-
R3-CV, 2010 WL 2593932, at *2 (Tenn. Ct. App. June 28, 2010) (citing Lindgren v. City
of Johnson City, 88 S.W.3d 581, 584 (Tenn. Ct. App. 2002)). As this Court has noted:
In premises liability cases against a governmental entity, a plaintiff must
prove: (1) the governmental entity owns and controls the location or
instrumentality alleged to have caused the injury; (2) a dangerous, defective,
or, in the case of sidewalks, unsafe condition caused the injury; (3) the
governmental entity had actual or constructive notice of the dangerous
condition; and (4) the governmental entity breached its duty to eliminate the
condition or its duty to warn of the condition.
Benn, 2010 WL 2593932, at *2 (citations omitted). This Court has repeatedly affirmed
that immunity is removed under this section only if the governmental entity being sued
both owned and controlled the location or improvement alleged to have caused injury to
the plaintiff. See, e.g., Turner v. City of Bean Station, No. E2013-02630-COA-R9-CV,
2014 WL 7414324, at *4 (Tenn. Ct. App. Dec. 30, 2014) (holding that immunity was not
removed where the city neither owned nor controlled a softball field where plaintiff was
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injured); Watts v. Morris, No. W2008-00896-COA-R3-CV, 2009 WL 1228273 at *5
(Tenn. Ct. App. May 6, 2009) (“For immunity to be removed pursuant to the GTLA, the
location that allegedly caused the accident must be owned and controlled by the
governmental entity being sued.”); Burgess v. Harley, 934 S.W.2d 58, 63 (Tenn. Ct. App.
1996) (stating that the governmental entity “must own and control the location or
instrumentality alleged to have caused the injury”). Indeed, unless a plaintiff can establish
this essential element—that the governmental entity owned and controlled the subject
location or instrumentality, the existence of a dangerous or defective condition “need not
be addressed.” Harris v. Williamson Cnty., 835 S.W.2d 588, 590 (Tenn. Ct. App. 1992).
The trial court found that the Commission is a governmental entity, and the Costners
have not challenged that finding either below or before this Court. The GTLA thus applies.
There is no dispute—as the Costners admitted in their response to the Commission’s
motion for summary judgment—that Alcoa, not the Commission, owns the Park where
Mrs. Costner was injured. This material fact, as the trial court stated, “reveals the Plaintiffs
can neither prove their case as a matter of law nor remove immunity from the Defendant.”
We see no reason to belabor the point and discuss the remaining elements of premises
liability when one element cannot be established. The trial court’s grant of summary
judgment to the Commission on the basis of immunity under the GTLA is affirmed.4
Immunity under the Recreational Use Statutes
The trial court also granted summary judgment to the Commission on the basis of
immunity under the Recreational Use Statutes, finding that the Commission is “a qualifying
entity under those statutes,” that attendance at a free concert at a park open for all citizens
“is a cultural activity and a recreational activity” as a matter of law, and that the Costners
“failed to set forth any facts at this stage to support a finding of gross negligence” against
the Commission. Our Supreme Court has explained the relevant inquiry as follows:
The recreational use defense requires a two-pronged analysis to determine
whether the State is entitled to immunity. The inquiries are as follows: (1)
whether the activity alleged is a recreational activity as defined by the statute;
and if so, (2) whether any of the statutory exceptions or limitations to the
immunity defense are applicable. If Tenn. Code Ann. § 70-7-102 is
4
While we are sympathetic to the Costners’ argument that the requirements of section 29-20-204
may result “in the inability of any injured party from successfully suing for injuries sustained in any of the
parks no matter how egregious the circumstances of the case might be,” this Court is not at liberty to ignore
the import of the clear and unambiguous words of the statute. See Auto Credit of Nashville v. Wimmer, 231
S.W.3d 896, 900 (Tenn. 2007) (citing Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004);
Freeman v. Marco Transp. Co., 27 S.W.3d 909, 911 (Tenn. 2000)). Our task here is “to effectuate the
intent of the General Assembly even when the result may appear unfair.” Bush v. State, 428 S.W.3d 1, 21
(Tenn. 2014) (citing Pickard v. Tenn. Water Quality Control Bd., 424 S.W.3d 511, 524 (Tenn. 2013)).
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applicable and no exceptions apply, the State is immune. If Tenn. Code Ann.
§ 70-7-102 is applicable but an exception is also applicable, the State may be
subject to liability.
Parent v. State, 991 S.W.2d 240, 243 (Tenn. 1999). Section 70-7-102 provides, in relevant
part:
The landowner, lessee, occupant, or any person in control of land or premises
owes no duty of care to keep such land or premises safe for entry or use by
others for such recreational activities as hunting, fishing, trapping, camping,
water sports, white water rafting, canoeing, hiking, sightseeing, animal
riding, bird watching, dog training, boating, caving, fruit and vegetable
picking for the participant’s own use, nature and historical studies and
research, rock climbing, skeet and trap shooting, sporting clays, shooting
sports, and target shooting, including archery and shooting range activities,
skiing, off-road vehicle riding, and cutting or removing wood for the
participant’s own use, nor shall such landowner be required to give any
warning of hazardous conditions, uses of, structures, or activities on such
land or premises to any person entering on such land or premises for such
purposes, except as provided in § 70-7-104.
Tenn. Code Ann. § 70-7-102(a). The list of recreational activities included in this section
is “neither exclusive nor exhaustive,” and “activities similar to those explicitly enumerated
in § 102 may also fall within the purview of the recreational use statute.” Parent, 991
S.W.2d at 243. Further, this Court has held that the statute’s use of the term “for entry”
indicates that the statute applies “the moment a visitor enters the property for a recreational
purpose, even if the visitor has not yet begun the recreational activity.” Mathews v. State,
No. W2005-01042-COA-R3-CV, 2005 WL 3479318, at *4 (Tenn. Ct. App. Dec. 19, 2005).
Our first task then is to determine whether Mrs. Costner’s attendance to a concert at
the Park is a recreational activity as contemplated under the statute. Attending a concert is
not a recreational activity enumerated in section 70-7-102, but our inquiry does not end
there. We must ascertain whether so doing is an activity comparable to those explicitly
included in the statute. See Parent, 991 S.W.2d at 243 (“Bicycling is by its very nature a
recreational activity and is comparable to the activities enumerated in § 102.”). Although
the Costners concede in their brief that attending a concert is a recreational activity, they
contend it is not a recreational activity similar to those enumerated in the statute. The
Commission responds that the Costners admitted in their deposition testimony that they
were at the Park for “recreational purposes” and that the specific activity in which Mrs.
Costner was engaged at the time of her injury was “walking,” a recreational activity similar
to hiking, which is listed in the statute.
Our Supreme Court’s had provided guidance on what activities are considered
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“recreational” under the statute. In Parent v. State, a minor was injured while riding a
bicycle at a state park. Parent, 991 S.W.2d at 241. The pivotal issue resembled the one
before us, “whether bicycling is a recreational activity as contemplated by the recreational
use statute.” Id. at 243. The Court first determined that “activities similar to those
explicitly enumerated in § 102 may also fall within the purview of the recreational use
statute” because the statute uses “the phrase ‘such recreational activities as’ in a manner
that implies that the list is neither exclusive nor exhaustive.” Id. It then held that the State
could assert immunity under the statute, given that “[b]icycling is by its very nature a
recreational activity and is comparable to the activities enumerated in § 102.” Id. Like
bicycling, it is plain to us that attending a concert at a park, or elsewhere, is by its very
nature a recreational activity.5 The more challenging question is whether it is an activity
comparable to those in the statute. In this regard, several courts in this jurisdiction have
been presented with situations where the injured party simultaneously engaged or intended
to engage in activities enumerated in the statute as well as in activities not listed. See, e.g.,
Mathews v. State, No. W2005-01042-COA-R3-CV, 2005 WL 3479318, at *4 (Tenn. Ct.
App. Dec. 19, 2005) (holding that section 102 barred recovery where plaintiff’s purpose in
entering the Park was to attend Archeofest, hike, and take a hayride); Cagle v. United
States, 937 F.2d 1073, 1076 (6th Cir. 1991) (holding that plaintiff, who was injured while
playing on a battlefield cannon at national military park, could not recover because he was
involved in “sightseeing”); Waterhouse v. Tenn. Valley Auth., 475 F. Supp. 3d 817, 824-
25 (E.D. Tenn. 2020), aff’d, No. 20-5978, 2021 WL 1230371 (6th Cir. Mar. 17, 2021)
(holding that the statute barred recovery by a plaintiff who entered a picnic area “with the
intention of picnicking, boating, and fishing” and was injured when she stepped into a hole;
and that plaintiff “cannot realistically argue that picnicking—an activity that she actually
did engage in—is not an ‘activit[y] similar to those explicitly enumerated in [the statute]’”);
Solomon v. United States, No. 3:12-CV-433-TAV-HBG, 2013 WL 6668737, at *3 (E.D.
Tenn. Dec. 18, 2013) (applying the statute where plaintiff stepped into a hole and was
injured while touring and hiking to historic sites within a national park).
Considering the foregoing, we have no difficulty holding that attending a concert is
both a recreational activity “by its very nature” and one that is comparable to the activities
expressly enumerated in section 70-7-102. Parent, 991 S.W.2d at 243. Specifically, we
find that attending a concert at a park is similar to sightseeing, bird watching, and nature
and historical studies and research. See Tenn. Code Ann. § 70-7-102(a). The primary
purpose and common thread in all these activities is that they are leisure activities. One
“cannot realistically argue” that attending a concert at a park, just like picnicking, is not
similar to recreational activities enumerated in the statute. Waterhouse, 475 F. Supp. 3d at
825. Other jurisdictions have reached similar conclusions. See Mayor v. Harris, 809
5
The Merriam-Webster online dictionary defines “recreation” as “refreshment of strength and
spirits after work” or as “a means of refreshment or diversion.” Recreation, Merriam-Webster Online
Dictionary, https://www.merriamwebster.com/dictionary/recreation (last visited July 29, 2022). We have
little doubt that going to a park to listen to music is a means of refreshment or diversion, and the Costners
themselves admitted in their respective depositions that they attended the concert for recreational purposes.
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S.E.2d 806, 807–08 (Ga. 2018) (attending a youth football game is a recreational activity
for purposes of recreational use statute); Carlson v. Town of S. Kingstown, 111 A.3d 819,
824 (R.I. 2015) (attending a little league baseball game is a recreational activity under
applicable statue).6
The Costners did not designate as an issue or argue in their brief that any of the
statutory exceptions to the shield against liability conferred by this part, listed under section
70-7-104, are applicable in this case. We, therefore, may deem this issue waived. See
Hodge v. Craig, 382 S.W.3d 325, 335 (Tenn. 2012). However, we elect to address the
issue because the Costners alluded to it in their response to the Commission’s motion for
summary judgment, and the trial court ruled on it in its January 25, 2021 Order.
Specifically, the Costners asserted that the Commission’s “failure to address this hole [that
Mrs. Costner stepped into] for a year is a clear indication that the program to fill holes in
the park is a major failure and constitutes gross negligence toward attendees at a concert.”
The trial court found “no evidence of any element of gross negligence on the part of the
[Commission], nor was there any willful or wanton conduct on behalf of the
[Commission].” See Tenn. Code Ann. § 70-7-104(a)(1) (providing that liability is not
limited under the statute for “[g]ross negligence, willful or wanton conduct that results in
a failure to guard or warn against a dangerous condition, use, structure or activity”).
We agree with the trial court. Our Supreme Court has defined gross negligence as
“a conscious neglect of duty or a callous indifference to the consequences.” Cook By &
Through Uithoven v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn. 1994)
(quotation omitted). Gross negligence is generally a question of fact, but it “may be
decided as a matter of law when the material facts are not in dispute” and “would permit a
reasonable person to reach only one conclusion.” Morgan v. State, No. M2002-02496-
COA-R3-CV, 2004 WL 170352, at *5 (Tenn. Ct. App. Jan. 27, 2004). The trial court found
that the Park was mowed at least once per week during the relevant timeframe; that the
Commission checks for holes prior to each concert; and that the Commission’s employees
fill holes when they become aware of them. These findings were undisputed. In addition,
there is no evidence in the record that the Commission was aware of the existence of any
holes in the Park on the date of the concert, let alone in the area of the Park where the
concert was held. To the contrary, as the trial court found, it is undisputed that the Costners
offered no proof concerning how long the hole at issue existed before Mrs. Costner stepped
into it, what or who caused the hole to exist, or that anyone reported to the Commission
the existence of holes in the area where Mrs. Costner was injured. The Commission could
not warn Mrs. Costner about a condition of which it did not have actual or constructive
notice. In other words, the Costners did not raise material issues of fact suggesting that the
6
The Commission also argues that walking is a recreational activity and that the statute applies
because Mrs. Costner was walking at the Park during the concert. Because we hold that attending a concert
at the Park is a recreational activity comparable to those enumerated in the statute, we need not address
whether the act of walking is covered by the statute.
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Commission engaged in grossly negligent, willful, or wanton conduct that resulted in a
failure to warn Mrs. Costner of the presence of holes in the area of the Park where she was
injured. Consequently, we conclude that as a matter of law, the Costners could not establish
gross negligence to negate the immunity provided to the Commission under the
Recreational Use Statutes.
CONCLUSION
This appeal is dismissed as to Blount County, the City of Alcoa, and the City of
Maryville. We affirm the judgment of the trial court as to the Maryville-Alcoa-Blount
County Parks & Recreation Commission. Costs on appeal are assessed to the appellants,
Marleta Costner and Robert Costner, for which execution may issue if necessary.
_________________________________
KRISTI M. DAVIS, JUDGE
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