Lawson v. Nashville City Center

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
July 16, 1999
DORIS LAWSON and )
DARRELL LAWSON, ) Cecil Crowson, Jr.
) Appellate Court Clerk
Plaintiffs/Appellants, ) Appeal No.
) 01-A-01-9804-CV-00189
VS. )
) Davidson Circuit
NASHVILLE CITY CENTER ) No. 97C-1729
LIMITED PARTNERSHIP, and THE )
METROPOLITAN GOVERNMENT OF )
NASHVILLE, DAVIDSON COUNTY, )
TENNESSEE, )
)
Defendants/Appellees. )
APPEALED FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE WALTER C. KURTZ, JUDGE
STANLEY A. DAVIS
214 Third Avenue, North
Nashville, Tennessee 37201
Attorney for Plaintiffs/Appellants
WILLIAM B. JAKES, III
300 James Robertson Parkway
Nashville, Tennessee 37201-1107
Attorney for Defendant/Appellee Nashville City Center Limited Partnership
JAMES L. MURPHY, III
Director of Law
The Department of Law of the Metropolitan
Government of Nashville and Davidson County
PAUL D. KRIVACKA
Metropolitan Attorney
204 Metropolitan Courthouse
Nashville, Tennessee 37201
Attorney for Defendant/Appellee Metropolitan Government
of Nashville and Davidson County
AFFIRMED AND REMANDED
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
CONCUR:
CAIN, J.
COTTRELL, J.
OPINION
The plaintiff slipped and fell on a grate located partially on a city
sidewalk and partially on the adjoining property. She sued the Metropolitan
Government of Nashville and Davidson County and the owner of the adjoining
property, alleging that they were negligent in failing to correct a dangerous condition.
The Circuit Court of Davidson County granted summary judgment to both defendants.
We affirm.
I.
The plaintiff fell on the south side of Union Street in Nashville, near an
office building known as the City Center. On the north side of the building the curb is
cut at two places to allow vehicles to cross the sidewalk, and to enter or exit a parking
garage beneath the City Center. Beginning at the street, the drives are approximately
level for about eight feet, and then they slope downward toward the garage.
In one of the drives, there are two areas about two to two and one-half
feet wide, running from the curb all the way to the garage entrance, which are covered
by metal grates. The grates cover underground electrical transformers. Except for
the two grates, the surface all along the sidewalk is brushed concrete.
The plaintiff had walked down the sidewalk earlier in the day without
mishap. On the way back, a light rain was falling. When the plaintiff stepped on one
of the grates, her foot slipped, and she was injured by the fall. She alleged that the
metal grate was slippery because of the water and because some oil had
accumulated on it.
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II.
The plaintiffs allege that each defendant was negligent for maintaining
a dangerous condition on the premises over which it exercised control. It is not
entirely clear from the record where Metro’s sidewalk ends and the City Center begins.
Neither is it entirely clear where the plaintiff fell. Each defendant, however, disclaims
any knowledge of a dangerous condition, even if the plaintiff fell on its property.
In premises liability actions, the defendant’s negligence stems from the
breach of a duty to correct a dangerous condition of which he or she has knowledge.
Chambliss v. Shoney’s, Inc., 742 S.W.2d 271 (Tenn. App. 1987). The knowledge of
the defendant may be actual or constructive. Ogle v. Winn-Dixie Greenville, Inc., 919
S.W.2d 45 (Tenn. App. 1995). If the defendant created the dangerous condition, he
has notice of it. Sanders v. State, 783 S.W.2d 948 (Tenn. App. 1989). But the
defendant may have constructive notice if the plaintiff can show that the dangerous
condition existed for so long that the defendant should have known about it.
Chambliss v. Shoney’s, Inc., 742 S.W.2d 271 (Tenn. App. 1987).
The plaintiffs’ complaint contained the following allegations:
5. As Plaintiff DORIS LAWSON was lawfully on the
Premises, Plaintiff DORIS LAWSON slipped and fell over
the metal grating, which was covered with oil, in front of
the Premises. Plaintiff DORIS LAWSON sustained
severe personal injuries as a direct and proximate result
of Defendant CITY CENTER and Defendant METRO’S
NEGLIGENT maintenance of the Premises, specifically
the metal grating in front of the Premises, controlled by
Defendants.
6. The Defendants’ negligent maintenance of the
Premises, specifically the metal grating in front of the
Premises included, but is not limited to the following:
(a) Defendants negligently failed to maintain the metal
grating, so as to cause the metal grating to become
covered with oil.
(b) Defendants negligently failed to inspect the
Premises for dangerous conditions of the metal grating,
when they knew, or in the exercise of reasonable care,
should have known, that the metal grating could greatly
increase the risk that individuals on the Premises, and
your Plaintiff in particular, would be injured. Further,
Defendants failed to take precautions to ensure that the
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metal grating would be safe for the public in general to
traverse, and your Plaintiff in particular.
(c) Defendants negligently failed to warn the general
public and your Plaintiff DORIS LAWSON, in particular, of
the aforementioned dangerous conditions when they
knew, or in the exercise of reasonable care, should have
known that they existed.
Both defendants answered the complaint and denied the material
allegations. In due course each defendant moved for summary judgment and filed
proof denying any knowledge of a foreign substance on the grate. The plaintiff
responded with the affidavits of an architect and a professional engineer. They
expressed opinions that the metal grate was dangerous in and of itself at the location
where the plaintiff fell. Their opinions were based on conclusions that the grate was
slippery compared to the surrounding concrete and that it was forseeable that oil and
road residue would be deposited on the grate by passing cars.
The trouble with the plaintiffs’ response to the motion for summary
judgment is that the experts’ opinions did not address the only basis for liability
alleged in the complaint: that the defendants knew or should have known that oil was
present on the grate, making it a dangerous condition. There was no proof as to
where the oil came from or how long the oil had been on the grate. The argument that
the defendants should have anticipated that oil or other foreign substances would be
deposited on the grate by passing cars does not make the grate dangerous in and of
itself. The same could be said of any road or driveway. But sloping driveways are not
inherently dangerous, even though we might expect slippery substances to be
deposited thereon. Martin v. Washmaster Auto Center U.S.A., 946 S.W.2d 314(Tenn. App. 1996). Liability on the landowner in such cases still depends on notice
that the substance is there. Id. There is no proof in this record that the foreign
substance had been on the grate long enough that the defendants should have been
aware of it.
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The judgment of the court below is affirmed and the cause is remanded
to the Circuit Court of Davidson County for further proceedings. Tax the costs on
appeal to the plaintiffs.
______________________________
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
CONCUR:
_____________________________
WILLIAM B. CAIN, JUDGE
_____________________________
PATRICIA J. COTTRELL, JUDGE
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IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE