Ruth Mitchell v. City of Franklin, Tennessee ( 2022 )

10/04/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
May 17, 2022 Session
RUTH MITCHELL v. CITY OF FRANKLIN, TENNESSEE
Appeal from the Circuit Court for Williamson County
No. 2019-152 Joseph A. Woodruff, Judge
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No. M2021-00877-COA-R3-CV
___________________________________
This appeal is an action subject to the Tennessee Governmental Tort Liability Act, in which
a pedestrian suffered injuries after she tripped and fell on a sidewalk in Franklin,
Tennessee. The pedestrian filed a complaint claiming that the city was negligent. After a
bench trial, the trial court entered judgment in favor of the city and dismissed the case. The
pedestrian appeals. We affirm in part, vacate in part, and remand for further proceedings
consistent with this opinion.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in
Part, Vacated in Part, and Remanded
CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.
James Bryan Moseley, Murfreesboro, Tennessee, for the appellant, Ruth Mitchell.
B. Duane Willis, Jr., Nashville, Tennessee, for the appellee, City of Franklin, Tennessee.
OPINION
I. FACTS & PROCEDURAL HISTORY
On June 3, 2018, Ruth Mitchell attended a church service at Franklin First United
Methodist Church’s (“the Church”) historic sanctuary in the City of Franklin (“the City”).
After the service, Ms. Mitchell was walking to her vehicle when she tripped and fell on a
concrete sidewalk. She allegedly “encountered an abrupt change of elevation caused by a
raised portion of the sidewalk which caught the toe of her shoe causing her to fall.” She
later described this particular change in elevation as a “cuff” in the sidewalk that “kept
[her] from moving forward.” She was attended to by several individuals after the fall and
then transported by ambulance to the hospital. As a result of the fall, she “shattered” her
left elbow and sustained abrasions on her hands and knees.
After Ms. Mitchell’s fall, Ms. Margaret Martin, the alderman for the fourth ward of
the City, contacted the City’s human resources department to report the incident for
insurance purposes.1 According to Ms. Martin, it was at this time when she first learned
of the City’s complaint-driven policy regarding sidewalks. She explained in her testimony
that she had been unaware that the City had a policy where citizens would have to complain
and notify the City about the conditions of the sidewalks in order for them to be repaired.
The City’s risk management department then filed a claim report with its insurance
company concerning Ms. Mitchell’s fall, in which it stated, “Woman was attending church
. . . , coming down the stairs and turned right, [and] tripped on the sidewalk where it has
buckled.” The sidewalk was then inspected by City employees and was remediated by
grinding down the change in elevation. The change in elevation was not measured at any
time prior to Ms. Mitchell’s fall or prior to the remediation of the sidewalk by the City.
Despite this remediation, the City had no written record, documentation, incident report,
log, or work order related to the sidewalk other than the claim report filed with its insurance
company.
In March 2019, Ms. Mitchell filed a complaint claiming negligence against the City.
She claimed that the City owed her the following duties: a duty to maintain its property in
a safe condition; a duty to inspect its property to discover unsafe conditions; a duty to take
corrective measures to remove or repair unsafe conditions which could be remedied; and a
duty to warn of conditions which could not, as a practical matter, be removed or repaired.
She claimed that the City breached those duties and that the damages and injuries she
suffered were actually and proximately caused by the City’s breach. Additionally, she
claimed that her injuries were caused by a dangerous and/or defective condition of the
sidewalk owned and controlled by the City, and therefore the City’s governmental
immunity was removed under the Tennessee Governmental Tort Liability Act (“GTLA”)
pursuant to Tennessee Code Annotated sections 29-20-203, 29-20-204, and 29-20-205.
The City filed its answer to the complaint in May 2019. The City asserted several
affirmative defenses, including that it was entitled to the defenses available under the
GTLA.
Ms. Mitchell employed Mr. David Johnson, who would later testify as her expert
witness in the field of human factors engineering, to perform an inspection of the sidewalk
in question, and he issued his report on the matter in July 2020.2 Despite the remediation
1
Ms. Mitchell’s daughter, Kristie Lee Jones, also called the City’s risk management department to
report the condition of the sidewalk.
2
Mr. David Johnson was an industrial engineer with a specialization in human factors engineering.
He explained that the field of human factors engineering was designed to maximize safety, health, comfort,
and efficiency using knowledge of human limitations, capabilities, expectations, dimensions, physiology,
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of the sidewalk that had occurred, he attempted to measure the area of sidewalk that had
been ground down and obtain an estimate of the change in elevation that had allegedly
caused Ms. Mitchell’s fall. He used a four-foot measuring stick to determine how much
material had been removed. He later explained that he examined the discoloration in the
sidewalk where the area that had been ground down was lighter-colored concrete compared
to the darker concrete that had not been disturbed. He applied pressure on the straight edge
at this point to the area that had not been disturbed, and he was able to obtain an estimated
change in elevation using this method. He stated that this method—extending a planar
surface to determine an estimated change in elevation—was just basic geometry. However,
it was a method he and other engineers used in order to obtain such an estimate. He stated
that his measurement revealed that the change in elevation was approximately an inch or
slightly over. According to his testimony, however, the change in elevation was greater
than a quarter-inch but not greater than an inch, just based on the method of remediation
performed by the City.
The City filed a motion for summary judgment in November 2020. In its
memorandum of law supporting the motion, the City contended that Ms. Mitchell could
not prove the existence of a duty and that it was entitled to immunity under the GTLA,
specifically Tennessee Code Annotated sections 29-20-203 and 29-20-205. Ms. Mitchell
filed a motion for partial summary judgment contending that immunity was removed under
the GTLA and that the City was liable for the harm caused to her. Both parties then filed
responses and replies to the respective motions. In February 2021, the trial court entered
an order granting in part and denying in part the City’s motion for summary judgment and
denying Ms. Mitchell’s motion for partial summary judgment. The court began by
addressing the City’s motion for summary judgment. First, the court found that the City
did not meet its initial burden of demonstrating that it was entitled to summary judgment
on the question of whether there was a duty. At the time, the court could not find that Ms.
Mitchell could not prove the existence of any duty owed to her by the City. Rather, the
court found that Ms. Mitchell should be required to prove the existence of a duty at trial by
a preponderance of the evidence. Therefore, the court denied the City’s motion for
summary judgment with respect to the existence of a duty. Second, the court found that
genuine disputes remained concerning actual and constructive notice. Therefore, the court
denied the City’s motion for summary judgment with respect to the applicability of section
29-20-203. Third, the court found that the City satisfied its burden of demonstrating that
it was entitled to judgment as a matter of law regarding the applicability of section 29-20-
205(1) and (4), i.e., the discretionary function and failure to inspect exceptions. The court
stated that Ms. Mitchell did not come forward with any material facts demonstrating the
existence of a genuine dispute remaining on these issues. Therefore, the court granted the
movement, and psychology. Particularly, he had experience involving forensic work pertaining to
sidewalks and other types of walkways and had investigated the causes of pedestrian falls. Hereinafter, we
refer to Mr. David Johnson as the “human factors engineer” because there was another witness with the
same surname.
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City’s motion for summary judgment with respect to the applicability of section 29-20-
205(1) and (4), finding that Ms. Mitchell could not proceed on a theory of removal of
immunity under section 29-20-205 due to the discretionary function and failure to inspect
exceptions. The court then addressed Ms. Mitchell’s motion for partial summary judgment
and reiterated its findings regarding sections 29-20-203 and 29-20-205. The court found
that she failed to demonstrate that she was entitled to summary judgment on the
applicability of sections 29-20-203 or 29-20-205. Therefore, the court denied her motion
for partial summary judgment with respect to the issue of liability. In sum, the court held
that section 29-20-205(1) and (4) applied to preserve the City’s immunity, but the City’s
immunity could still be removed under section 29-20-203.
In May 2021, the City filed a motion in limine to exclude the testimony of the human
factors engineer. Ms. Mitchell filed a response in opposition to the motion. The trial court
entered an order denying in part and granting in part the City’s motion. The court found
that an exemplar photograph depicting an allegedly similarly elevated sidewalk, the
testimony of the human factors engineer based upon that photograph, and the opinion
testimony of the human factors engineer regarding the City’s sidewalk maintenance
standards should be excluded from trial. Specifically, the court found that the testimony
of the human factors engineer was “not relevant” because “the exceptions to removal of
[the City’s] governmental immunity in negligence actions codified at Tenn. Code Ann. §
29-20-205(1) and (4) apply to preserve [the City’s] immunity[.]” However, the court found
that the remaining testimony of the human factors engineer should not be excluded from
trial, subject to its ruling on any additional evidentiary objections made during the course
of the trial. The court then held trial in June 2021. There were 13 witnesses that testified
over the course of the two-day trial.
According to testimony of the human factors engineer, a quarter-inch threshold was
significant because it was the point at which a sidewalk’s change in elevation would be
considered a “trip hazard.” He testified that if the change in elevation exceeds a quarter-
inch, it is considered a trip hazard and also exceeds the minimum foot clearance during a
stride. He based his opinion not only upon national safety standards, but also upon the
accessibility code adopted by the City.3 Therefore, he testified that the change in elevation
became “dangerous” at this point. He concluded that the sidewalk in question was “unsafe
and unreasonably dangerous” because “[t]here was an abrupt vertical change in elevation
3
In his report, the human factors engineer referenced the following: (1) the City’s “Transportation
& Street Technical Standards, 2017 Edition”; (2) the “Tennessee Department of Transportation (TDOT)
Roadway Design Guidelines Section 9-Multimodal Design Chapter 3 TDOT Accessibility Guidelines”; (3)
the “International Code Council (ICC)/ANSI A117.1-2017-American National Standard Accessible and
Usable Buildings and Facilities standard”; and (4) the “American Standards for Testing and Materials
(ASTM) F 1637-2013 Standard Practice for Safe Walking Surfaces.” He testified that the City has adopted
the ANSI A117.1 standard. This standard allows a vertical change in elevation up to a quarter-inch to
remain untreated. If the change in elevation is between a quarter-inch and a half-inch, it must be beveled.
If the change in elevation is greater than a half-inch, it must be transitioned by means of a ramp.
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. . . that did not conform to national consensus safety standards for sidewalks and also did
not comply with accessibility code, nor property maintenance code.” Mr. Doug Pratt, the
City’s road inspector, agreed that if the change in elevation was above a quarter-inch, it
would be a potential trip hazard.
In July 2021, the trial court entered an order for judgment in favor of the City and
dismissed Ms. Mitchell’s claims. The court found that Ms. Mitchell failed to carry her
burden of proof to show by a preponderance of the evidence that the City had either actual
or constructive notice of the defect in the sidewalk where she was injured. Therefore, the
court held that the City’s immunity was not removed by the GTLA and that the City was
entitled to judgment in its favor. Additionally, the court held that the issue of comparative
fault was pretermitted based on its determination that the City was immune from liability.
Thereafter, Ms. Mitchell timely filed her appeal.
After the filing of her notice of appeal, Ms. Mitchell filed a notice of filing the
affidavit of the human factors engineer as an offer of proof. The affidavit detailed the
offered proof of the human factors engineer concerning the City’s maintenance and
inspection policies and procedures of its sidewalks. The City filed a motion to quash the
notice of filing. It argued that the affidavit was not proffered at trial, was new evidence,
and must be excluded. In the alternative, it argued that certain paragraphs of the affidavit
should be excluded as a matter of law, and the affidavit should be redacted accordingly.
Ms. Mitchell then filed a response in opposition to the motion. She argued that at trial she
attempted to make an offer of proof pursuant to Tennessee Rule of Evidence 103, the court
indicated that an offer of proof could be made but it would be done outside the trial judge’s
presence. Counsel for Ms. Mitchell had suggested making the offer of proof via affidavit.
At that time, the court agreed that this would be acceptable and indicated that the City could
present whatever its cross-examination would be. The court stated that the offer of proof
would be designated as Appellate Exhibit B: “It is my practice to identify matters that are
part of the record, such as offers of proof and whatnot, by that designation; otherwise, they
don’t get included in the record on appeal.” However, no such affidavit was filed during
the remainder of the trial dates, after the trial concluded, or by the time the final order was
entered three weeks later. Still, the court ultimately entered an order denying the motion
to quash. The court stated that the proof was not before the court prior to its decision and
was an issue being raised solely on appeal. The notice of filing and the affidavit were
included in the record as a “late filed” Appellate Exhibit B.
II. ISSUES PRESENTED
Ms. Mitchell presents the following issues for review on appeal, which we have
slightly restated:
1. Whether the evidence preponderates against the trial court’s finding that the City
had no constructive notice of the unsafe condition of the sidewalk;
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A. Whether the trial court erred in concluding that there was no support in the record
for a finding that the vertical offset of the sidewalk had existed for such a
sufficient length of time that constructive notice should be presumed;
B. Whether the trial court erred in finding that there was no evidence that an
adjacent tree’s roots caused the uplifting of the sidewalk; and
2. Whether the trial court erred in excluding evidence;
A. Whether the trial court erred in excluding the testimony of the human factors
engineer regarding maintenance and inspection of the City’s sidewalks;
B. Whether the trial court erred in excluding an exemplar photograph which
depicted the same condition located in another section of the same sidewalk to
demonstrate what the condition looked like before it was removed by the City;
3. Whether the trial court erred in finding that the human factors engineer was
“Defendant’s” expert witness who expressed an opinion that the condition of the
sidewalk was a “patently obvious dangerous trip hazard.”
The City presents the following issues for review on appeal, which we have slightly
restated:
1. Whether the trial court’s grant of partial summary judgment is pretermitted by not
being raised by Ms. Mitchell;
2. Whether the evidence confirms the trial court’s conclusion that the City did not have
constructive notice of the condition of the sidewalk in question; and
3. Whether the totality of the evidence confirms the trial court’s dismissal with
prejudice.
For the following reasons, we affirm in part, vacate in part, and remand for further
proceedings consistent with this opinion.
III. STANDARD OF REVIEW
This matter was decided by the trial court without a jury. Therefore, the trial court’s
findings of fact are reviewed de novo upon the record, accompanied by a presumption of
correctness unless the preponderance of evidence is otherwise. Tenn. R. App. P. 13(d).
“For the evidence to preponderate against a trial court’s findings of fact, it must support
another finding of fact with greater convincing effect.” Traylor ex rel. Traylor v. Shelby
Cnty. Bd. of Educ., No. W2013-00836-COA-R3-CV, 2014 WL 7921131, at *7 (Tenn. Ct.
App. Feb. 27, 2014) (citing Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn.
Ct. App. 2000); Realty Shop, Inc. v. RR Westminster Holding, Inc., 7 S.W.3d 581, 596
(Tenn. Ct. App. 1999)). “A trial court’s conclusions of law are reviewed de novo, with no
presumption of correctness.” Id. (citing Nashville Ford Tractor, Inc. v. Great Am. Ins. Co.,
194 S.W.3d 415, 425 (Tenn. Ct. App. 2005)).
IV. DISCUSSION
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As in most negligence actions against a government entity, the discussion must start
with the GTLA. See Tenn. Code Ann. § 29-20-201, et seq. Pursuant to the GTLA,
“[g]overnmental entities are immune from suit, except when immunity has been removed
by statute.” McMahan v. City of Cleveland, No. E2018-01719-COA-R3-CV, 2019 WL
5067193, at *3 (Tenn. Ct. App. Oct. 9, 2019); see Tenn. Code Ann. § 29-20-201.
Therefore, “[b]efore proceeding in an action against a governmental entity, the threshold
issue of waiver of governmental immunity must be addressed.” Id. (quoting Brown v.
Hamilton Cnty., 126 S.W.3d 43, 46 (Tenn. Ct. App. 2003)). There are two specific statutes,
Tennessee Code Annotated sections 29-20-203 and 29-20-205, which are pertinent to this
case and provide for removal of immunity.4
A. Section 29-20-205
We first address section 29-20-205, which removes immunity for injury caused by
the negligence of a public officer or employee. See Tenn. Code Ann. § 29-20-205. A
governmental entity remains immune from suit, however, if one of the enumerated
exceptions in the statute apply. See id.; Giggers v. Memphis Housing Auth., 363 S.W.3d
500, 507 (Tenn. 2012) (explaining that if the injury results from a discretionary act of the
governmental entity, regardless of whether that discretion was abused, a governmental
entity remains immune under section 29-20-205(1)); see also Limbaugh v. Coffee Med.
Ctr., 59 S.W.3d 73, 84-85 (Tenn. 2001). The statute provides in part:
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 arises out of:
(1) The exercise or performance or the failure to exercise or perform a
discretionary function, whether or not the discretion is abused; [or]
...
(4) A failure to make an inspection, or by reason of making an inadequate or
negligent inspection of any property[.]
Tenn. Code Ann. § 29-20-205(1) and (4). In this case, the trial court granted the City’s
motion for summary judgment with respect to the applicability of section 29-20-205(1) and
(4), finding that Ms. Mitchell could not proceed on a theory of removal of immunity under
4
In addition to section 29-20-203, Ms. Mitchell also claimed that the City’s immunity was removed
pursuant to section 29-20-204. However, the trial court found that section 29-20-203 was controlling in
this case. On appeal, Ms. Mitchell notes in her appellate brief that section 29-20-204 pertains to buildings
and structures as opposed to streets and sidewalks. She does not make the argument that section 29-20-203
is not controlling in this case.
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section 29-20-205 due to those exceptions.
At oral argument, counsel for Ms. Mitchell conceded that the issue of removal of
immunity under section 29-20-205 was not raised on appeal. As such, we conclude that
any issue of removal of immunity pursuant to section 29-20-205 is waived. We note,
however, that “[t]he issue of immunity under each exception [of the GTLA] is a separate
matter entirely.” Zamek v. O’Donnell, No. W2006-00522-COA-R3-CV, 2007 WL 98481,
at *3 (Tenn. Ct. App. Jan. 16, 2007) (citing Helton v. Knox Cnty., 922 S.W.2d 877, 882
(Tenn. 1996)). “The application of one of the immunity exceptions does not necessarily
preclude the application of another.” Id. (citing Kirby v. Macon Cnty., 892 S.W.2d 403,
406 (Tenn. 1994)). Liability for injuries under section 29-20-203 caused by a defective,
unsafe, or dangerous condition is not subject to the exceptions of section 29-20-205. Id.(citing Kirby, 892 S.W.2d at 406). Despite the City’s immunity under the failure to inspect
exception of section 29-20-205(4), “[p]roof that a governmental entity failed to adequately
inspect property or improvements which it owned and controlled is directly relevant to the
question of whether it had constructive notice of the dangerous [or unsafe] or defective
condition resulting in injury.” Hawks v. City of Westmoreland, 960 S.W.2d 10, 16 (Tenn.
1997). Therefore, since Ms. Mitchell is seeking recovery from the City which owns and
controls the sidewalk in question pursuant to section 29-20-203, section 29-20-205(4) does
not provide immunity from suit arising from “an injury caused by a defective, unsafe, or
dangerous condition” of that sidewalk if either actual or constructive notice is “alleged and
proved.” Tenn. Code Ann. § 29-20-203; see Hawks, 960 S.W.2d at 16 (applying the same
rationale to demonstrate that section 29-20-205(4) does not provide immunity from suit
arising from allegations pursuant to section 29-20-204). It follows then that the City’s
immunity may still be removed under section 29-20-203 even though it retained immunity
under section 29-20-205.
B. Section 29-20-203
Section 29-20-203 removes immunity for injury caused by government roadways
and sidewalks under certain circumstances. See Tenn. Code Ann. § 29-20-203. The statute
provides:
(a) Immunity from suit of a governmental entity is removed for any injury
caused by a defective, unsafe, or dangerous condition of any street, alley,
sidewalk or highway, owned and controlled by such governmental entity. . .
.
(b) This section shall not 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 [repealed].
Id. Regarding this section, the decisive issue is whether the City had actual or constructive
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notice of the condition of the sidewalk in question.5 The statute clearly states that immunity
will not be removed unless “actual and/or constructive notice” is “alleged and proved.”
Tenn. Code Ann. § 29-20-203(b). With respect to notice, this Court has explained that “[i]f
the contention is one of actual notice, the operative questions are what did the City know
and when did the City know it.” McMahan, 2019 WL 5067193, at *3; see Alexander v.
City of Murfreesboro, No. M2010-00367-COA-R3-CV, 2011 WL 882441, at *3 (Tenn. Ct.
App. Mar. 14, 2011). “If the contention is one of constructive notice, the operative
questions are what should the City have known and when should the City have known it.”
Id.; see Alexander, 2011 WL 882441, at *3.
i. Constructive Notice
Ms. Mitchell does not challenge the trial court’s ruling regarding actual notice. She
only challenges whether the evidence preponderates against the trial court’s finding that
that the City had no constructive notice of the unsafe condition of the sidewalk in question.
Constructive notice is defined as “‘information or knowledge of a fact imputed by law to a
person (although he may not actually have it), because he could have discovered the fact
by proper diligence, and his situation was such as to cast upon him the duty of inquiring
into it.’” Kirby, 892 S.W.2d at 409 (quoting Black’s Law Dictionary, 1062 (6th ed. 1990)).
“Applying that definition, a governmental entity will be charged with constructive notice
of a fact or information, if the fact or information could have been discovered by reasonable
diligence and the governmental entity had a duty to exercise reasonable diligence to inquire
into the matter.” Brown v. Chester Cnty. Sch. Dist., No. W2008-00035-COA-R3-CV, 2008
WL 5397532, at *3 (Tenn. Ct. App. Dec. 30, 2008) (quoting Hawks, 960 S.W.2d at 15).
There are three ways that a plaintiff can establish constructive notice:
First, a plaintiff may demonstrate that the owner or operator of the premises
caused or created the condition. See Sanders v. State, 783 S.W.2d 948, 951
(Tenn. Ct. App. 1989). Second, . . . a plaintiff may prove constructive notice
by evidence that the condition “existed for a length of time” that the
owner/occupier “in the exercise of reasonable care, should have become
aware of that condition.” Elkins v. Hawkins County, No. E2004-02184-
COA-R3-CV, 2005 WL 1183150, at *4 (Tenn. Ct. App. May 19, 2005).
[Third,] . . . a plaintiff may show constructive notice . . . by proving that “a
pattern of conduct, recurring incident, or general continuing condition”
caused the dangerous condition. Blair v. West Town Mall, 130 S.W.3d 761,
765-66 (Tenn. 2004).
Merrell v. City of Memphis, No. W2013-00948-COA-R3-CV, 2014 WL 173411, at *5
5
The parties do not present issues challenging whether the injury was “caused by a defective,
unsafe, or dangerous condition” or whether City “owned and controlled” the sidewalk. Tenn. Code Ann. §
29-20-203.
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(Tenn. Ct. App. Jan. 16, 2014). These three theories are sometimes referred to as the caused
or created theory, the passage of time theory, and the common occurrence theory.6 Benn
v. Pub. Bldg. Auth. of Knox Cnty., No. E2009-01083-COA-R3-CV, 2010 WL 2593932, at
*4 (Tenn. Ct. App. June 28, 2010). Whether the City had constructive notice is a question
of fact. Wright v. City of Lebanon, No. M2010-00207-COA-R3-CV, 2011 WL 721508, at
*6 (Tenn. Ct. App. Mar. 1, 2011); see Petty v. City of White House, No. M2008-02453-
COA-R3-CV, 2009 WL 2767140, at *6 (Tenn. Ct. App. Aug. 31, 2009).
a. Passage of Time Theory
Ms. Mitchell’s first argument regarding constructive notice is consistent with the
passage of time theory. Traylor ex rel. Traylor, 2014 WL 7921131, at *9 (quoting Benn,
2010 WL 2593932, at *4). She argues that the trial court erred in concluding that there
was no support in the record for a finding that the vertical offset of the sidewalk had existed
for such a sufficient length of time that constructive notice should be presumed. The City
argues that the length of time of the condition of the sidewalk was not proven by any
witnesses.
In order to prove constructive notice under the passage of time theory, Ms. Mitchell
“must generally present some proof of how long the dangerous condition existed prior to
the accident in question.” Id. at *10; see Nolley v. Eichel, No. M2006-00879-COA-R3-
CV, 2007 WL 980603, at *2 (Tenn. Ct. App. Apr. 2, 2007) (discussing proof bearing on
the length of time that the condition existed prior to the accident); see also Broyles v. City
of Knoxville, No. 03A019505-CV-00166, 1995 WL 511904, at *5 (Tenn. Ct. App. Aug.
30, 1995) (“When liability is based upon constructive notice, there must be material
evidence from which the . . . trier of fact could conclude that the dangerous or defective
condition existed for sufficient time and under such circumstances that the defendant,
exercising reasonable care and diligence, would have discovered the . . . condition.”) (citing
Paradiso v. Kroger Co., 499 S.W.2d 78, 79 (Tenn. Ct. App. 1973)). “As a general rule,
constructive knowledge cannot be established without some showing of the length of time
the dangerous condition had existed.” Fowler v. City of Memphis, 514 S.W.3d 732, 740
(Tenn. Ct. App. 2016) (quoting Hardesty v. Serv. Merch. Co., 953 S.W.2d 678, 682 (Tenn.
Ct. App. 1997) (citing Jones v. Zayre, Inc., 600 S.W.2d 730, 732 (Tenn. Ct. App. 1980))).
There was conflicting testimony at trial regarding whether the condition of the
sidewalk was reported to the City in November 2012, years before the accident in 2018.
Mr. Barry Johnson, the facility manager for the Church, testified that he noticed the poor
condition of the sidewalks around the Church and reported the problems to the City.
6
Part of Ms. Mitchell’s argument is that the adjacent tree’s roots caused the condition of the
sidewalk. However, her argument is not to be confused with the caused or created theory. On appeal, she
does not make an argument under the caused or created theory, i.e., whether the City caused or created the
condition of the sidewalk.
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However, rather than reporting the specific area of the sidewalk in question, he claims to
have reported the entire block of sidewalks. Mr. Johnson kept a logbook of his work at the
Church, which reflected that he reported the sidewalks to the City on November 29, 2012.
He testified that he spoke with an individual he knew who worked for the City and was
directed to speak with Mr. Brad Wilson, the facilities manager for the City. He claimed
that Mr. Wilson then directed him to the City’s permits department. There, he stated that
he spoke with “a lady that was kind of running the show” about the sidewalks and was told
that someone would be notified. However, Mr. Wilson testified that he did not have a
conversation with Mr. Johnson in 2012 and that he only spoke with him after Ms.
Mitchell’s fall. Furthermore, he explained that, if he had spoken with Mr. Johnson earlier,
he would have referred Mr. Johnson to the City’s streets department rather than the permits
department. Mr. Wilson stated that he did not keep a logbook of such interactions.
Between these two witnesses, the trial court found Mr. Wilson more credible. The
court noted that “Mr. Wilson’s demeanor and emotional affect while testifying were
consistent with those of a person testifying truthfully.” Furthermore, the court stated that
“nothing about Mr. Wilson’s testimony indicated any confusion with respect to dates,
substance or the sequence of events.” Thus, based upon the credibility of the witnesses
alone, the court found by a preponderance of the evidence that Mr. Johnson did not report
anything to the City about the condition of the sidewalk in front of the Church until after
Ms. Mitchell’s fall. “It is . . . well settled that a trial court’s assessment of witness
credibility is entitled to great weight on appeal because the trial court saw and heard the
witness testify; thus, we defer to the trial court’s assessment on credibility absent clear and
convincing evidence to the contrary.” McCormick v. Warren Cnty. Bd. of Educ., No.
M2011-02261-COA-R3-CV, 2013 WL 167764, at *5 (Tenn. Ct. App. Jan. 15, 2013) (citing
C & W Asset Acquisition, LLC v. Oggs, 230 S.W.3d 671, 676 (Tenn. Ct. App. 2007)).
Likewise, we defer to the trial court’s assessment on credibility regarding the conversation
that purportedly occurred in 2012. Additionally, as the trial court’s order noted, Mr.
Johnson’s testimony concerning this purported conversation was offered to prove that the
City had actual notice of the condition of the sidewalk in question. Actual notice is defined
as “knowledge of facts and circumstances sufficiently pertinent in character to enable
reasonably cautious and prudent persons to investigate and ascertain as to the ultimate
facts.” Kirby, 892 S.W.2d at 409 (quoting Texas Co. v. Aycock, 227 S.W.2d 41, 46 (Tenn.
1950) (citation omitted)). Again, actual notice is not our concern because Ms. Mitchell is
not seeking an appeal of the trial court’s ruling on that issue.7
Notwithstanding this purported conversation, Ms. Mitchell introduced five
photographs from Google Street View, which were admitted to show that the condition of
7
Ms. Mitchell concedes in her appellate brief, “At trial, the Plaintiff presented evidence of actual
notice. However, that evidence depended on the credibility of a witness whose testimony was directly
contradicted by another witness. Because this Court is to give ‘great weight’ to issues of credibility, the
Plaintiff is not seeking an appeal of that ruling.”
- 11 -
the sidewalk existed for several years prior to Ms. Mitchell’s fall.8 Regarding these
photographs, the trial court stated that “[w]hile the expansion joint between the two slabs
is clearly visible in the photographs it is impossible to tell from the photographs whether
one of the slabs is higher than the other, and if so, by how much.” Indeed, the expansion
joint where Ms. Mitchell tripped is clearly visible in four of the five photographs.9
Unfortunately, due to the timing of when the photographs were taken, a shadow cast over
the sidewalk in question makes it difficult to discern whether one slab is higher than the
other, and if so, by how much. Yet, we disagree that it was impossible to tell whether one
of the slabs was higher than the other.
This photograph, which was taken in June 2016 and is much clearer than the other
photographs, depicts the area in front of the Church where Ms. Mitchell fell. It specifically
depicts the following: (1) the sidewalk’s expansion joint where Ms. Mitchell tripped which
is located at the center of the photograph; (2) the adjacent tree which was removed
sometime after this photograph was taken; and (3) the drainpipe which is located just
beneath the expansion joint. Upon close examination of this photograph, one slab appears
to be higher than the other due to the slight shift of the adjacent tree’s shadow cast upon
the expansion joint. When examining this photograph, Mr. Pratt stated that the area where
the two slabs meet “appears to be elevated.” The human factors engineer stated that this
8
Collective Exhibit 3 consisted of two photographs taken in June 2018. It is unclear whether these
two photographs were taken before or after Ms. Mitchell’s fall, which occurred on June 3, 2018. However,
upon examination of these photographs, Mr. Johnson observed that there was no offset and believed that
the photographs were taken after the sidewalk had been ground down by the City, which occurred after Ms.
Mitchell’s fall.
9
The first photograph in Collective Exhibit 3 is a wide-angle view taken in June 2018. The
expansion joint where Ms. Mitchell fell is visible in this photograph but not as clearly as it is in the other
photographs.
- 12 -
photograph demonstrated that there was “significantly more shadowing effect due to the
vertical change in elevation between the two concrete slabs.” He clarified that he was able
to tell that this was a vertical change, and not a horizontal one, by observing the ends of
the two slabs which were not separating. Therefore, this evidence demonstrates that at
least some change in elevation existed at the sidewalk in question since June 2016.
However, from examining the photograph alone, it is still difficult to determine how much
of a change in elevation was present at that point in time or if that change in elevation even
exceeded a quarter-inch.
We note again that the change in elevation was not measured at any time prior to
Ms. Mitchell’s fall or prior to the remediation of the sidewalk by the City. However, Ms.
Mitchell presented testimony about the estimated change in elevation prior to and at the
time of her fall. When examining the photograph taken in October 2011, Mr. Johnson,
from the Church, estimated that the change in elevation was about an inch or two. He
testified that the photograph accurately depicted the conditions he observed when he started
working for the Church and reported the sidewalks to the City in 2012. When examining
the photograph taken in November 2017, Mr. Johnson estimated again that the change in
elevation was still roughly an inch or two. He noted, however, that he never actually
measured the change in elevation of the sidewalk. Mr. Pratt testified that he inspected the
sidewalk in question after Ms. Mitchell’s fall, along with a few other panels of sidewalk in
the area, and determined that it would be ground down because the change in elevation was
“no more than an inch.” He could not recall if he measured the change in elevation, but he
estimated the change in elevation was less than an inch. He could not say if the change in
elevation was closer to a quarter-inch or an inch. However, he agreed that based on the
amount of sidewalk that was ground down that the change in elevation was closer to an
inch than a quarter-inch. Mr. Grubb also inspected the sidewalk in question after Ms.
Mitchell’s fall, but testified that he did not measure the change in elevation and did not
observe anyone else measure the change in elevation. Rather, he stated that the change in
elevation was just “eyeballed,” and he did not believe the change in elevation was greater
than an inch. He admitted that the sidewalk could have been “soff cut”10 in order to observe
what had been removed versus what was still remaining, but this was not done by the City.
Mr. Tim Napier, a risk management specialist for the City, also inspected the sidewalk in
question after Ms. Mitchell’s fall, but he did not state whether he measured the change in
elevation.
As previously stated, the human factors engineer testified that the change in
elevation was greater than a quarter-inch but not greater than an inch, just based on the
method of remediation performed by the City. However, he stated that his measurement,
which was performed after the sidewalk had been remediated by the City, revealed that the
10
The term “soff cut” used here apparently refers to the method of cutting concrete using a
particular saw manufactured and sold by Soff-Cut International, Inc. Soff-Cut Int’l, Inc. v. N.E.D. Corp.,
No. CV 03-2972-LGB (VBKx), 2004 WL 5806998, at *1 (C.D. Cal. Apr. 8, 2004).
- 13 -
change in elevation was approximately an inch or slightly over. According to the human
factors engineer, his estimate revealed consistency with Ms. Mitchell’s testimony of the
change in elevation having a curled or cuffed edge, such that it would trap or capture the
toe of her shoe. Additionally, he stated that his estimate was consistent with the City
employee’s testimony about the change in elevation being greater than a quarter-inch but
not really more than an inch. He explained that if the change in elevation would have been
more than an inch, the City would not have been able to grind it down; rather, the City
would have had to replace the sidewalk and concrete. He added that the City never
measured the change in elevation to contest the results that he achieved, even after the
sidewalk was remediated. Rather, the City only submitted that the change in elevation was
greater than a quarter-inch but not more than an inch based on the method of repair.
The trial court ultimately found that the measurement performed by the human
factors engineer and his opinions based on that measurement were unreliable. The court
thoroughly explained its rationale as follows:
Defendant [sic] offered the testimony of David Johnson, an expert witness in
the field of human factors engineering. [He] expressed his opinion that the
vertical offset between the two concrete slabs was greater than one inch and
was therefore a patently obvious dangerous trip hazard. [He] supported his
opinion with a photograph he made of a measurement he conducted using a
wooden ruler four feet in length. [He] made this measurement after the City
had remediated the vertical displacement by grinding the two slabs at the
expansion joint. In order to measure what the vertical displacement had been,
[he] anchored one end of the wooden ruler to the concrete slab by having
someone stand on it, and then measured the distance between the free end of
the ruler and the top of the adjoining slab. The photograph [he] made shows
the free end of the ruler resting on top of one of Ms. Mitchell’s shoes, thus
causing the ruler to flex upward and increasing the distance between the
bottom of the ruler and the top of the adjacent slab.11 Consequently, [his]
measurement does not actually measure the distance in elevation between the
two slabs when Ms. Mitchell tripped and fell. It measures the distance
between the top of Ms. Mitchell’s shoe and the top of the slab of which her
shoe rested when the photograph was made. [His] measurement is
unreliable, and his opinions based on that measurement are likewise
unreliable and do not substantially assist the Court in determining any fact at
issue in this case.
Regardless of the measurement and estimation provided by the human factors engineer, the
City’s employees testified that the change in elevation was somewhere between a quarter-
inch and an inch when it was inspected after Ms. Mitchell’s fall. The trial court made a
11
The trial court’s order referenced Exhibit 14 in a footnote.
- 14 -
finding that the difference in elevation between the two concrete slabs was greater than a
quarter-inch but not more than one inch. This finding regarding the change of elevation at
the time of Ms. Mitchell’s fall was consistent with the testimony. Still, under the passage
of time theory, it was unclear from the evidence at what point in time the change in
elevation became greater than a quarter-inch and how long it had existed prior to Ms.
Mitchell’s fall.
As a separate argument under the passage of time theory, Ms. Mitchell contends
that the evidence demonstrated that the tree’s roots caused this condition.12 The tree was
removed at some point prior to her fall. She maintains that the condition then became static
because the tree’s roots were no longer growing and pushing up the sidewalk, and therefore
the condition was present for a period of time without being inspected or repaired by the
City. In order to address this issue, we review the evidence concerning the adjacent tree.
When examining the photograph taken in October 2011, Mr. Johnson identified that
there was a tree located in the center of the photograph which appeared to be the tree the
Church later had to remove. He explained that the Church removed the tree because it was
dying, its roots had pushed up the sidewalk, and its limbs were falling on cars. He testified
that the tree was removed sometime after 2015 or 2016, but before Ms. Mitchell fell in
2018. According to Mr. Johnson, the condition of the sidewalk adjacent to the tree was
offset about an inch or two. He added that the change in elevation did not get any better
over the period from 2012 to 2018 when Ms. Mitchell fell. He then examined a photograph
taken in November 2017, which showed that the tree had been removed by that time. He
testified that the photograph still depicted the condition of the sidewalk and that the
removal of the tree did not change the sidewalk in any substantive way. He added that the
condition of the sidewalk was still offset about an inch or two.
In addition to Mr. Johnson’s testimony, four other witnesses at trial believed that
the condition of the sidewalk was caused by the tree’s roots. One witness stated that the
sidewalk was obviously aged and not smooth in some spots. Based on personal experience,
he thought that there were probably tree roots that had pushed up on the sidewalk, dislodged
it, and made it uneven. A second witness stated, “There are a number of trees there. Many
of them have grown in, and . . . that’s why I think it makes [the sidewalks] unlevel a little
bit.” A third witness stated, “Obviously the tree root had uprooted the concrete.” Mr. Pratt,
12
We note that Tennessee case law reveals it is not uncommon for tree roots to allegedly cause
problems with sidewalks. See City of Memphis v. Dush, 288 S.W.2d 713, 714 (Tenn. 1956) (trip and fall
caused by a defect in a sidewalk where tree roots had raised a block of concrete about three-and-a-half to
four inches); Harbin v. Smith, 76 S.W.2d 107, 108 (Tenn. 1934) (trip and fall caused by a defect in a
sidewalk where tree roots had elevated one of the sections of concrete about two inches); see also
McMahan, 2019 WL 5067193, at *5 (explaining that there was no evidence that the defect in the sidewalk
was caused by the growth of a tree root, and therefore the mere fact that the growth of tree roots caused
defects in sidewalks in other areas of the town failed to prove the City had constructive notice of the defect
in the sidewalk in question).
- 15 -
a City employee, stated that “there were two or three panels that had bulked up or elevated
due to the tree roots . . . .” In addition to the testimony, Mr. Grubb stated in his deposition
that either a tree root or the expansion and contraction of the concrete could cause such a
change in elevation. The human factors engineer testified that the adjacent tree’s roots
probably ran beneath the drainpipe located beneath the sidewalk’s expansion joint and
pushed the sidewalk up. He stated, “I assumed that the tree root had grown underneath
[the sidewalk] and probably loosened it or raised it.” Here, the testimony of several
witnesses indicated that the tree’s roots potentially caused this condition.
Although Mr. Johnson testified that the tree was removed sometime in 2015 or 2016,
the photographs indicate that the tree was removed sometime after June 2016 but before
November 2017, if the dates on them are reliable. The photograph taken in 2016 showed
that the tree was still present, while the photograph taken in November 2017 showed that
the tree had been removed by that time. Based on these photographs, if the tree’s roots
were the cause of the condition of the sidewalk, the condition would have existed at least
somewhere between seven months and two years. Although the trial court admitted said
photographs into evidence, it noted in its order that no witness was able to “authenticate
the reliability of the date[s]” on the photographs.
Despite the testimony regarding the tree and its removal, it was still unclear at what
point in time the change in elevation became unsafe. Therefore, it was unclear if this unsafe
condition existed for such a long period of time as to put the City on notice of its condition.
Fowler, 514 S.W.3d at 739 (citing Parker v. Holiday Hosp. Franchising, Inc., 446 S.W.3d
341, 352 (Tenn. 2014) (considering the “length of time” the dangerous condition existed
to determine constructive notice)). We also emphasize that, other than the purported
conversation in 2012, there was no evidence of any falls, complaints, reports, calls, or
requests for repair regarding the sidewalk prior to Ms. Mitchell’s fall. See Parker, 446
S.W.3d at 352 (noting that the property owner had never received any complaints regarding
the allegedly defective condition in concluding that actual or constructive notice had not
been proven); Champlin v. Metro. Gov’t of Nashville, No. M2007-02158-COA-R3-CV,
2009 WL 1065937, at *3 (Tenn. Ct. App. Apr. 20, 2009) (concluding that there was no
constructive notice where there were no requests for repair, complaints, or calls regarding
the sidewalk where the plaintiff fell prior to her accident). Moreover, just as the trial court
found, there was evidence in the record that the condition of the sidewalk might not have
been caused by the adjacent tree’s roots. There was some evidence that a drainpipe was
located beneath the expansion joint, that part of the sidewalk had been chipped away as a
result of some sort of impact, and that expansion and contraction of the concrete could
cause have caused such a change in elevation.
As previously stated, Ms. Mitchell “must generally present some proof of how long
the dangerous condition existed prior to the accident in question.” Traylor ex rel. Traylor,
2014 WL 7921131, at *10 (citations omitted). Again, “constructive knowledge cannot be
established without some showing of the length of time the dangerous condition had
- 16 -
existed.” Fowler, 514 S.W.3d at 740 (quoting Hardesty, 953 S.W.2d at 682 (citing Jones,
600 S.W.2d at 732)). “A lack of evidence on this issue is often fatal to a claim of
constructive notice.” Id. Here, we find that Ms. Mitchell failed to show how long the
condition had existed. As such, we conclude that Ms. Mitchell’s argument under the
passage of time theory falls short.
b. Common Occurrence Theory
Alternatively, Ms. Mitchell contends that the significance of the tree’s roots being
the cause of the unsafe condition establishes not only the length of time of the condition
but also the general and continuing nature of the condition. This argument is consistent
with the common occurrence theory. She also argues that the trial court attempted to fit
this case into the factual scenario of the McMahan case; however, she states that the case
is easily distinguishable. Although we agree that the McMahan case is not completely
analogous, it does bear similarities to the facts of this case.
In McMahan, the plaintiff attempted to prove constructive notice under both the
caused or created theory and the common occurrence theory. McMahan, 2019 WL
5067193, at *4. Under the caused or created theory, the plaintiff contended that the
defendant had constructive notice “because the roots of the trees it planted along the
sidewalks in the 1990s caused some of the sidewalks in the downtown area to be raised or
cracked and uneven.” Id. However, this Court found that the plaintiff’s contention was a
“fallacy” because she “produced no evidence that the raised or cracked and uneven defect
in the sidewalk where she tripped and fell was caused by the growth of a tree root.” Id.Unlike McMahan, we reiterate that Ms. Mitchell is not making an argument under this
theory.
Under the common occurrence theory, the plaintiff in McMahan contended that “the
City had constructive notice of the defect where she tripped and fell because the defective
condition occur[ed] often enough throughout the City that the City was put on constructive
notice of its existence.” Id. at *5. This Court explained that “to find constructive notice
under the common occurrence theory, the 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.’” Id. (quoting Fowler, 514
S.W.3d at 740 (citation omitted)). We further explained that “a property owner is on
constructive notice of a dangerous condition when the condition occurs regularly, placing
a duty on the property owner to take reasonable steps to fix the ‘commonly occurring
dangerous condition.’” Id. (quoting Blair, 130 S.W.3d at 766). Therefore, “[c]ourts
applying the common occurrence theory look for evidence concerning whether the
dangerous condition previously occurred at the same place or near where the plaintiff was
injured.” Id. (citations omitted). The evidence demonstrated that the defendant assigned
employees to conduct periodic sweeps to identify any hazards and repair those hazards
promptly. Id. Additionally, no one had identified or observed a potential hazard in the
- 17 -
sidewalk where the plaintiff tripped and fell, there had been no complaints by anyone of
any kind pertaining to the section of sidewalk where the plaintiff tripped and fell, and there
was no evidence to establish that the dangerous condition had commonly occurred at the
same place or near where she tripped and fell. Id.; see Tinsley v. Wal-Mart Stores, Inc.,
155 F. App’x 196, 198 (6th Cir. 2005); see also Martin v. Wal-Mart Stores, Inc., 159 F.
App’x 626, 629-30 (6th Cir. 2005). As such, we concluded that the evidence was
insufficient to establish that the dangerous condition previously occurred at the same place
or near where the plaintiff was injured. Id. at *6; see Tinsley, 155 F. App’x at 198; see also
Martin, 159 F. App’x at 629-30.
Keeping the McMahan case in mind, we now consider whether Ms. Mitchell
established constructive notice under the common occurrence theory. Our Supreme Court
has explained that the theory focuses on the following principle: “a premises owner’s duty
to remedy a condition, not directly created by the owner, is based on that owner’s actual or
constructive knowledge of the existence of the condition.” Blair, 130 S.W.3d at 766. This
“recognizes the logical conclusion that, when a dangerous condition occurs regularly, the
premises owner is on constructive notice of the condition’s existence,” which “places a
duty on that owner to take reasonable steps to remedy this commonly occurring dangerous
condition.” Id. Our Supreme Court continued as follows:
The question is whether the condition occurs so often that the premises owner
is put on constructive notice of its existence. The condition could be caused
by the owner’s method of operation, by a third party, or by natural forces. A
premises owner is put on constructive notice of a dangerous condition that is
“a recurring incident, or a general or continuing condition” regardless of
what caused the condition, and regardless of whatever method of operation
the owner employs.
Id. (emphasis added). Allowing a plaintiff to prove constructive notice under this theory
relieves the plaintiff “of the difficult burden of showing the duration of a particular
occurrence” so long as he or she “can show that the dangerous condition was part of ‘a
pattern of conduct, a recurring incident, or a general or continuing condition’ such that its
presence was reasonably foreseeable to the premises owner.” Id. (footnote omitted).
In the case at bar, the trial court found that the common occurrence theory had no
support in the record. The court noted that Ms. Mitchell was evidently the first person ever
to trip and fall at or near the sidewalk in question. Similar to the McMahan case, we
conclude that Ms. Mitchell’s argument under the common occurrence theory falls short.
“[T]o find constructive notice under the common occurrence theory, the 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.’”
McMahan, 2019 WL 5067193 at *5 (quoting Fowler, 514 S.W.3d at 740 (citation
omitted)). We “look for evidence concerning whether the dangerous condition previously
- 18 -
occurred at the same place or near where the plaintiff was injured.” Id. (citations omitted).
Here, the evidence was insufficient to establish that the dangerous condition previously
occurred at the same place or near where Ms. Mitchell was injured. Id. at *6; see Tinsley,
155 F. App’x at 198; see also Martin, 159 F. App’x at 629-30. To the contrary, there was
evidence presented that several events were held in the area in the past, which resulted in
thousands of people walking across the particular section of sidewalk with no issue or
complaints. No witness was aware of anyone falling on the sidewalk prior to Ms.
Mitchell’s fall. Other than Mr. Johnson’s purported conversation with Mr. Wilson in 2012,
no witness was aware of any instance where someone reported the condition of the
sidewalk to the City prior to Ms. Mitchell’s fall. There was simply no evidence that the
condition occurred “so often” that the City was put on constructive notice of its existence.
Blair, 130 S.W.3d at 766.
This Court has held that “[i]f the plaintiff cannot or does not prove notice, [her]
claim must fail.” Zamek, 2007 WL 98481, at *5 (citations omitted). We conclude here
that the evidence before this Court preponderates in favor of the trial court’s finding that
the City had no constructive notice of the unsafe condition of the sidewalk.13
C. Evidentiary Issues
13
We note that Ms. Mitchell also made the argument that the City had an affirmative and non-
delegable duty to maintain and inspect its property. In discussing this duty, she cites to City of Winchester
v. Finchum, 301 S.W.2d 341, 343-344 (Tenn. 1957), which predates the GTLA. In Finchum, our Supreme
Court explained that:
The general rule is that a city holds its public ways, not in its governmental, but in its
proprietary or corporate capacity, and it owes an absolute duty to exercise reasonable care
to keep its streets and sidewalks safe for use in the ordinary modes by persons exercising
reasonable care. . . .
This duty upon a city to use due care to maintain its streets and sidewalks is primary,
nondelegable, and cannot be evaded or avoided by the city by any act of its own. It (such
duty) rests primarily, as respects the public, upon the corporation, and the obligation to
discharge this duty cannot be evaded, suspended, or cast upon others, by any act of its own.
Id. (internal citations and quotations marks omitted). Ms. Mitchell’s reliance on Finchum is misplaced
because it predates the GTLA. See Kirby, 892 S.W.2d at 409 n.6.
In Kirby, a GTLA case, our Supreme Court has held that when such a failure to maintain or inspect
produces a defective, unsafe, or dangerous condition, liability follows only if the defendant had actual or
constructive notice of the condition. Id. at 409. As discussed before, the Hawks case states that “[p]roof
that a governmental entity failed to adequately inspect property or improvements which it owned and
controlled is directly relevant to the question of whether it had constructive notice of the dangerous [or
unsafe] or defective condition resulting in injury.” Hawks, 960 S.W.2d at 16. However, the trial court
excluded the testimony of the human factors engineer regarding the City’s maintenance and inspection
policies and procedures of its sidewalks. Ms. Mitchell later filed an offer of proof, albeit after this appeal
was filed, which is an issue we will address next.
- 19 -
We now address the evidentiary issues stemming from the trial court’s ruling on the
City’s motion in limine. Prior to trial, the City filed a motion in limine to exclude the
testimony of the human factors engineer. The trial court ultimately found that the exemplar
photograph depicting an allegedly similarly elevated sidewalk, the testimony of the human
factors engineer based upon that photograph, and the opinion testimony of the human
factors engineer regarding the City’s sidewalk maintenance standards should be excluded
from trial. Decisions regarding the admissibility of evidence are within the discretion of
the trial court. Tenn. R. Evid. 104(a). Therefore, “[i]ssues regarding admission of evidence
in Tennessee are reviewed for abuse of discretion.” Merrell, 2014 WL 173411, at *8 (citing
Dickey v. McCord, 63 S.W.3d 714, 723 (Tenn. Ct. App. 2001)). On this issue, this Court
has held as follows:
An appellate court will not reverse a trial court’s exercise of discretion in
ruling on an evidentiary motion in limine unless there is an abuse of the wide
discretion given the trial court on evidentiary matters. Pullum v. Robinette,
174 S.W.3d 124, 137 (Tenn. Ct. App. 2004) (citing Heath v. Memphis
Radiological Prof’l Corp., 79 S.W.3d 550 (Tenn. Ct. App. 2002)).
...
When arriving at a determination to admit or exclude evidence, trial courts
are generally “accorded a wide degree of latitude and will only be overturned
on appeal where there is a showing of abuse of discretion.” Otis v.
Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn. 1993) (citing
Strickland v. City of Lawrenceburg, 611 S.W.2d 832 (Tenn. Ct. App. 1980);
Tenn. R. Evid. 401; Austin v. City of Memphis, 684 S.W.2d 624 (Tenn. Ct.
App. 1984); Inman v. Aluminum Co. of America, 697 S.W.2d 350 (Tenn. Ct.
App. 1985)). Error may not be predicated upon a ruling which admits or
excludes evidence unless a substantial right of the party is affected. Tenn.
R. Evid. 103.
Brandy Hills Ests., LLC v. Reeves, 237 S.W.3d 307, 317-18 (Tenn. Ct. App. 2006). “When
reviewing a discretionary decision by the trial court, the ‘appellate courts should begin with
the presumption that the decision is correct and should review the evidence in the light
most favorable to the decision.’” Merrell, 2014 WL 173411, at *8 (quoting Overstreet v.
Shoney’s, Inc., 4 S.W.3d 694, 709 (Tenn. Ct. App. 1999)).
i. Testimony Regarding Maintenance & Inspection
Ms. Mitchell contends that the trial court erred in excluding the testimony of the
human factors engineer regarding the maintenance and inspection of the City’s sidewalks.
The City argues that there was no proof that any inspection would have found this exact
condition because the condition of the sidewalk in question could not “be quantified in
- 20 -
time, or in height, to be in any specific condition.” The City reiterates that there was no
evidence of how long the condition existed or its exact height at any given time prior to
Ms. Mitchell’s fall.
We first address what we consider to be a threshold issue. That is, whether Ms.
Mitchell waived this particular issue by failing to make a timely offer of proof. See
Morrison v. Allen, 338 S.W.3d 417, 432 (Tenn. 2011) (determining that whether the
defendants waived any entitlement to relief by failing to make a timely offer of proof during
the course of trial was a threshold issue). Tennessee Rule of Evidence 103 provides in
part:
(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling
which admits or excludes evidence unless a substantial right of the party is
affected, and
...
(2) Offer of Proof. In case the ruling is one excluding evidence, the substance
of the evidence and the specific evidentiary basis supporting admission were
made known to the court by offer or were apparent from the context.
Once the court makes a definitive ruling on the record admitting or excluding
evidence, either at or before trial, a party need not renew an objection or offer
of proof to preserve a claim of error for appeal.
Tenn. R. Evid. 103(a). Pursuant to this rule, “[w]e will not reverse a trial court’s ruling
excluding evidence if the appellant fails to make an offer of proof regarding the substance
of the evidence and the supporting evidentiary basis to support its admission.” Rose v.
Cookeville Reg’l Med. Ctr. Auth., No. 2010-01438-COA-R3-CV, 2011 WL 251210, at *2
(Tenn. Ct. App. Jan. 13, 2011) (citing Dickey, 63 S.W.3d at 723; Anderson v. American
Limestone, Co., 168 S.W.3d 757, 762 (Tenn. Ct. App. 2005)).
Here, Ms. Mitchell attempted to revisit the issue of the City’s maintenance and
inspection policies and procedures at trial. After the City objected to the line of
questioning, Ms. Mitchell attempted to make an offer of proof of the testimony of the
human factors engineer. The trial court indicated that an offer of proof could be made
outside the court’s presence. Counsel for Ms. Mitchell suggested making the offer of proof
via affidavit, “as opposed to just sitting here tonight and having that while Your Honor is
off the bench, obviously it doesn’t need to be submitted right now.” The court agreed that
this was acceptable and indicated that the City could present whatever its cross-
examination would be. After filing her appeal, Ms. Mitchell filed a notice of filing of the
affidavit of the human factors engineer as an offer of proof. The affidavit detailed the
offered proof of the human factors engineer concerning the City’s maintenance and
- 21 -
inspection policies and procedures of its sidewalks. The City filed a motion to quash the
notice of filing arguing that the affidavit was not proffered at trial, was new evidence, and
must be excluded. The trial court entered an order denying the motion to quash. The notice
of filing and the affidavit were included in the record as a “late filed” Appellate Exhibit B.
When excluded evidence consists of oral testimony, “it is essential that a proper
offer of proof be made in order that the appellate court can determine whether or not
exclusion was reversible.” State v. Goad, 707 S.W.2d 846, 852 (Tenn. 1986). We have
noted that “[t]here are several methods by which a party can make an offer of proof.” Hill
v. Hill, No. M2006-01792-COA-R3-CV, 2008 WL 110101, at *7 (Tenn. Ct. App. Jan. 9,
2008). While questioning the witness is a preferred method, a party can make an offer of
proof “in the form of a summary statement by counsel of the excluded testimony.” Id.(citing Thompson v. City of LaVergne, No. M2003-02924-COA-R3-CV, 2005 WL
3076887, at *9 (Tenn. Ct. App. Nov. 16, 2005) (citing Neil P. Cohen, et al., Tennessee Law
of Evidence § 103.4, at 20 (3d ed. 1995))). “Other accepted methods include stipulating to
the content of the excluded evidence or presenting a written summary of the excluded
evidence.” Id. (citing Thompson, 2005 WL 3076887, at *9). Whatever method is used to
make an offer of proof, “a party merely needs to provide ‘the substance of the evidence
and the specific evidentiary basis supporting the admission of the evidence.’” Id. (quoting
Thompson, 2005 WL 3076887, at *9 (citing Tenn. R. Evid. 103(a)(2)).
Here, Ms. Mitchell utilized an unusual method to make her offer of proof by filing
an affidavit of the human factors engineer after trial. “[O]ur Supreme Court has suggested
that question and answer offers of excluded testimony are ‘the better practice.’” Alley v.
State, 882 S.W.2d 810, 817 (Tenn. Crim. App. 1994) (quoting Farmers-Peoples Bank v.
Clemmer, 519 S.W.2d 801, 804 (Tenn. 1975)). Indeed, given the complications that this
offer of proof has created, we resound that the better practice is to present, during the trial,
the actual testimony in question and answer form. See Morrison, 338 S.W.3d at 432
(“[T]he better practice would have been for the Defendants to have made an offer of proof
during the trial . . . .”) (emphasis added); Clemmer, 519 S.W.2d at 804 (“[T]he better
practice is to present the proof so that if, on appeal, the ruling of the trial judge is reversed
on the legal question presented, the possibility of a second appeal, following the remand,
will be avoided.”); see also Tarkington v. Tarkington, No. 01A01-9706-CV-00270, 1998
WL 44951, at *3 (Tenn. Ct. App. Feb. 6, 1998) (“An offer of proof by narration of its
substance by counsel may be sufficient, but better practice is to present the actual evidence
so that the affect [sic] of the alleged error may be corrected on appeal.”) (citing Clemmer,
519 S.W.2d at 804). Nevertheless, “the rules and cases do not limit offers to a particular
method, . . . .” Alley, 882 S.W.2d at 817.
This situation bears resemblance to the Morrison case, in which our Supreme Court
agreed the trial court had directed the defendants to present their proof after the trial had
ended. Morrison, 338 S.W.3d at 432-33. Following the direction of the trial court, counsel
for the defendant did not make an offer of proof at trial and was assured that there would
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be an opportunity to do so after trial. Id. at 432. After the court entered an order of final
judgment, the defendants filed a motion to alter or amend and reopen the proof but the
court denied the motion noting that the defendants had the opportunity to make an offer of
proof during the trial. Id. Under the circumstances of that case, our Supreme Court
concluded the issue had not been waived and that the trial court should have considered
the offer of proof at issue. Id. at 433.
In the case at bar, it appears the trial court directed counsel for Ms. Mitchell, or at
the very least permitted him, to file the affidavit of the human factors engineer after the
trial had ended. The court stated, “If you do that, then obviously [counsel for the City] has
the opportunity to supplement that with his offer of what the cross-examination would be.”
After approximately three weeks had passed, the court entered its order and Ms. Mitchell
had not yet filed the affidavit as an offer of proof. Approximately three weeks later, Ms.
Mitchell filed her appeal with this Court; still, she had not filed the affidavit as an offer of
proof. She did not file the affidavit as an offer of proof until several days after she filed
her appeal with this Court. The appellate record had not yet been received by this Court,
and thus the affidavit was included in the appellate record. We note that the affidavit shows
on its face that it was not even prepared until after the final order was entered.
The City has presented some argument in its appellate brief suggesting that the offer
of proof is “new evidence,” but it did not present this as a specific issue for review on
appeal. See Hodge v. Craig, 382 S.W.3d 325, 334 (Tenn. 2012) (“Appellate review is
generally limited to the issues that have been presented for review.”) (citing Tenn. R. App.
P. 13(b); State v. Bledsoe, 226 S.W.3d 349, 353 (Tenn. 2007)). We have also considered
the question of whether the trial court properly exercised jurisdiction since the offer of
proof was filed after the appeal was perfected.14 However, it is not obvious to this Court
that the trial court did not retain jurisdiction over this matter and neither party has addressed
this issue.15 Additionally, while the Morrison case provides some guidance as to the
14
“Perfecting an appeal consists of filing a timely notice of appeal and either an appeal bond or
affidavit of indigency.” First Am. Trust Co. v. Franklin-Murray Dev. Co., 59 S.W.3d 135, 141 n.7 (Tenn.
Ct. App. 2001) (citing Blue Cross-Blue Shield of Tenn. v. Eddins, 516 S.W.2d 76,77 (Tenn. 1974) (holding
that an appeal is perfected when the appeal bond is filed)).
15
“[O]nce a party perfects an appeal from a trial court’s final judgment, the trial court effectively
loses its authority to act in the case without leave of the appellate court—perfecting an appeal vests
jurisdiction over the case in the appropriate appellate court.” Malmquist v. Malmquist, 415 S.W.3d 826,
837 (Tenn. Ct. App. 2011) (citations omitted). However, we note that a trial court retains jurisdiction to
rule on certain timely motions, such as those provided for in Tennessee Rules of Civil Procedure 50.02,
52.02, 59.04, and 59.07 for civil actions, even if the appeal is filed prior to the filing of the motion or the
trial court’s ruling on the motion. Tenn. R. App. P. 4(e); see Wells Fargo Bank, N.A. v. Dorris, 556 S.W.3d
745, 752 (Tenn. Ct. App. 2017).
We also note that there are other exceptions where the trial court is permitted to consider matters
after the appeal is filed. For example, “[t]he filing of a notice of appeal does not prevent the trial court from
ruling on ancillary matters relating to the enforcement or collection of its judgment.” Born Again Church
& Christian Outreach Ministries, Inc. v. Myler Church Bldg. Sys. of the Midsouth, Inc., 266 S.W.3d 421,
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timeliness of an offer of proof, it does not state at what point an offer of proof would be
considered untimely. See Morrison, 338 S.W.3d at 432-33.
As such, we conclude that Ms. Mitchell has not waived this issue by failing to file
a timely offer of proof, but we caution against this practice in future cases. We therefore
review the offer of proof, which has been included in the appellate record, and consider
whether the trial court abused its discretion by excluding the testimony of human factors
engineer regarding the maintenance and inspection of the City’s sidewalks. See Merrell,
2014 WL 173411, at *8 (“Issues regarding admission of evidence in Tennessee are
reviewed for abuse of discretion.”) (citing Dickey, 63 S.W.3d at 723).
In his affidavit filed as the offer of proof, the human factors engineer stated, in
pertinent part, the following:
22. Incorporating a periodic inspection program that inspects all
sidewalks at least yearly and busier sidewalks on a more frequent basis is
crucial to sidewalk maintenance and safety.
23. The City . . . appears to do at least some inspection of its sidewalks
except when the sidewalk adjoins a state route, as the sidewalk in this case
does.
24. The entire sidewalk along the state route that is within the City .
. . is only approximately two miles – See Appendix A to my report.
25. An inspection of the entire sidewalk could be performed in
probably less than an hour and could be performed by in-house staff with
basic training on walkway safety.
26. The City[’s] . . . “complaint-driven” policy is unreasonable and
problematic.
27. Primarily, the “complaint-driven” policy places the obligation to
inspect sidewalks onto individuals who are neither aware of the program nor
are trained or knowledgeable about what constitutes an unsafe or
unreasonably dangerous sidewalk.
28. It also appears that the City . . . does not maintain records of
sidewalk complaints, inspections, or maintenance, which makes it difficult
to evaluate whether sidewalk maintenance and inspections are being
performed.
29. According to the American Public Works Association, most
municipalities proactively inspect their entire sidewalk system or portions of
the sidewalk system, called a “zone inspection,” on a yearly basis.
425 n.3 (Tenn. Ct. App. 2007); see First Am. Trust Co., 59 S.W.3d at 141 n.8. Furthermore, the filing of
the appeal does not prevent a trial court from ruling on issues involving the statement of the evidence
because “the trial court is the arbiter of the statement of the evidence for its proceedings.” Brown v. Brown,
No. M2012-02084-COA-R3-CV, 2014 WL 1017509, at *7 (Tenn. Ct. App. Mar. 13, 2014) (citing Tenn.
R. App. P. 24(f)).
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30. The City[’s] . . . “complaint-driven” policy allows dangerous
conditions to develop and continue to exist for years before the problems are
corrected. This places the public at risk because the triggering of a complaint
is often after someone actually is injured from the unsafe condition.
31. The Federal Highway Administration also recommends using
zone inspection as part of a municipality’s sidewalk maintenance program.
These inspection programs include, but are not limited to, a spot inspection
program. A spot inspection program responds to complaints of sidewalk
conditions but is not a replacement for a proactive sidewalk inspection and
maintenance program.
32. There was no reason for the City . . . to fail to performed [sic]
some type of periodic inspection of the sidewalk involved in this incident.
33. The condition which resulted in Ms. Mitchell’s fall and injury
existed in a dangerous condition for at least five to six years prior to this
incident. Had the City . . . of Franklin performed any periodic inspection of
the sidewalk during that time, it would have discovered the condition and
been able to repair it prior to Ms. Mitchell being injured.
As previously noted, proof of the City’s failure to inspect is relevant to the question of
whether the City had constructive notice. Despite the City’s immunity under the failure to
inspect exception of section 29-20-205(4), “[p]roof that a governmental entity failed to
adequately inspect property or improvements which it owned and controlled is directly
relevant to the question of whether it had constructive notice of the dangerous [or unsafe]
or defective condition resulting in injury.” Hawks, 960 S.W.2d at 16. Since Ms. Mitchell
is seeking recovery from the City which owns and controls the sidewalk in question
pursuant to section 29-20-203, section 29-20-205(4) does not provide immunity from suit
arising from “any injury caused by a defective, unsafe, or dangerous condition” of that
sidewalk if either actual or constructive notice is “alleged and proved.” Tenn. Code Ann.
§ 29-20-203; see Hawks, 960 S.W.2d at 16 (applying the same rationale to demonstrate
that section 29-20-205(4) does not provide immunity from suit arising from allegations
pursuant to section 29-20-204). The City’s immunity may still be removed under section
29-20-203 even though it retained immunity under section 29-20-205, and removal of the
City’s immunity may be achieved by proving constructive notice with proof of the City’s
failure to inspect its sidewalks.
In light of the Hawks case, we find that the testimony of the human factors engineer
regarding the maintenance and inspection of the City’s sidewalks was relevant to the
question of whether the City had constructive notice pursuant to section 29-20-203. The
trial court found that the testimony of the human factors engineer was “not relevant”
because “the exceptions to removal of [the City’s] governmental immunity in negligence
actions codified at Tenn. Code Ann. § 29-20-205(1) and (4) apply to preserve [the City’s]
immunity[.]” This was an abuse of discretion because the court misapplied the law. See
Gooding v. Gooding, 477 S.W.3d 774, 779-80 (Tenn. Ct. App. 2015) (“If the trial court
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misconstrues or misapplies the law, its discretion lacks the necessary legal foundation and
becomes an abuse of discretion.”) (citations omitted). The Hawks case clearly states that
this proof is indeed relevant.
It is difficult to ascertain what the substance of the actual testimony would have
been in this case. The record contains only an affidavit by the human factors engineer and
no proffered cross-examination. As such, we cannot discern whether the excluded
testimony of the human factors engineer would have provided proof of constructive notice.
Therefore, we vacate and remand for the trial court to consider the testimony of the
human factors engineer concerning the maintenance and inspection of the City’s sidewalks.
Given that we have already concluded that Ms. Mitchell failed to prove constructive notice
with the evidence before us, we remand with the limited instruction to consider the
testimony of the human factors engineer as it pertains to the City’s maintenance and
inspection of its sidewalks.
ii. Exemplar Photograph
Ms. Mitchell also contends that the trial court erred in excluding an exemplar
photograph which depicted the same conditions located in another section of the same
sidewalk to demonstrate what the condition looked like before it was removed by the City.
In regard to the exemplar photograph, we conclude that the trial court did not abuse its
discretion. “In general, questions regarding the admissibility, qualifications, relevancy and
competency of expert testimony are left to the discretion of the trial court.” Spearman v.
Shelby Cnty. Bd. of Educ., 637 S.W.3d 719, 739 (Tenn. Ct. App. 2021) (quoting McDaniel
v. CSX Transp., Inc., 955 S.W.2d 257, 264 (Tenn. 1997) (citation omitted)). Courts are not
required to rigidly apply the factors found in Tennessee Rules of Evidence 702 and 703.
Id.; see Payne v. CSX Transp., Inc., 467 S.W.3d 413, 455 (Tenn. 2015); Excel Polymers,
LLC v. Broyles, 302 S.W.3d 268, 272-73 (Tenn. 2009). “Instead, the two most important
consideration are whether the testimony is reliable and whether it will substantially assist
the trier of fact.” Id. (citing Payne, 467 S.W.3d at 455).
When ruling on the motion in limine, the trial court found that the testimony of the
human factors engineer offered in reliance upon the photograph of an allegedly similar
sidewalk would not meet the standards of Tennessee Rule of Evidence 703. Furthermore,
the court found that this particular portion of his testimony was based upon assumptions
which had no foundation in the record. At trial, counsel for Ms. Mitchell attempted again
to get the photograph into evidence and stated that the photograph was being used to show
a similar condition of the sidewalk that caused Ms. Mitchell’s fall. Ms. Mitchell testified
that the photograph accurately depicted a condition similar to the one that caused her fall.
However, Ms. Mitchell admitted that she could not say specifically what the differential
was between the changes of elevation of the sidewalk in question and the one depicted in
the exemplar photograph. The court concluded that Ms. Mitchell did not have the
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opportunity to observe the trip hazard after she fell because she was injured. She also did
not have the opportunity to observe the trip hazard before it was remediated by the City
just a few days later. Therefore, the court again found that the photograph should not be
admitted because it was not supported by the evidence. Ms. Mitchell submitted the
photograph as an offer of proof, which was received as Appellate Exhibit A during the
course of trial.16
We note again that “trial courts are generally ‘accorded a wide degree of latitude
and will only be overturned on appeal where there is a showing of abuse of discretion.’”
Reeves, 237 S.W.3d at 318 (quoting Otis, 850 S.W.2d at 442 (citations omitted)). “Acting
as the ‘gatekeeper’ of evidence,” we conclude that the trial court did not abuse its discretion
here. Spearman, 637 S.W.3d at 740 (quoting Payne, 467 S.W.3d at 455 (citations
omitted)).
D. The Opinion Testimony of the Human Factors Engineer
As a final matter, we address Ms. Mitchell’s contention that the trial court erred in
finding that the human factors engineer was “Defendant’s” expert witness who expressed
an opinion that the condition of the sidewalk was a “patently obvious dangerous trip
hazard.” The trial court’s statement that the human factors engineer was “Defendant’s”
expert witness was obviously error because he was Ms. Mitchell’s expert witness.
However, the court went on to state that the measurement of the sidewalk performed by
the human factors engineer was unreliable, and his opinions based on that measurement
were likewise unreliable and did not substantially assist the court in determining a fact at
issue in the case. Therefore, the court did not rely on this opinion expressed by the human
factors engineer. The court was simply noting that the human factors engineer stated the
condition of the sidewalk was obvious to someone like him.17
The trial court found that the human factors engineer was “Defendant’s” expert
witness who expressed an opinion that the condition of the sidewalk was a “patently
obvious dangerous trip hazard.” Regardless of whether this was an error, the court did not
rely on this opinion expressed by the human factors engineer. As such, similar to the
previous issue, we conclude that if the trial court erred here, it was harmless. See Siler v.
Scott, 591 S.W.3d 84, 113 (Tenn. Ct. App. 2019) (holding that “even if we were to find
error, . . . ‘[t]he erroneous exclusion of evidence will not require reversal of the judgment
if the evidence would not have affected the outcome of the trial even if it had been
admitted.’”) (quoting White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App.
16
At trial, the judge stated, “It will be received as Appellate Exhibit A. In that capacity it will be
included in the technical record.”
17
To be clear, the human factors engineer testified that the condition of the sidewalk would be
obvious to someone like him who was looking for the specific condition, but it would not be obvious to a
pedestrian like Ms. Mitchell. It was “subtle enough not to be noticeable but substantial enough to be a trip
hazard.”
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1999)).
V. CONCLUSION
For the aforementioned reasons, we affirm in part, vacate in part, and remand for
further proceedings consistent with this opinion. Costs of this appeal are taxed one-half to
the appellant, Ruth Mitchell, and one-half to the appellee, City of Franklin, Tennessee, for
which execution may issue if necessary.
_________________________________
CARMA DENNIS MCGEE, JUDGE
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