Gregory B. Hinton v. City of Chattanooga

IN THE COURT OF APPEALS
AT KNOXVILLE FILED
August 25, 1999
Cecil Crowson, Jr.
Appellate Court
Clerk
GREGORY HINTON, ) HAMILTON COUNTY
) 03A01-9901-CV-00013
Plaintiff-Appellee, )
)
)
v. ) HON. L. MARIE WILLIAMS
) JUDGE
)
CITY OF CHATTANOOGA, )
)
Defendant-Appellant. ) AFFIRMED AND REMANDED
KENNETH O. FRITZ and MICHAEL A. MCMAHAN OF CHATTANOOGA FOR
APPELLANT
MICHAEL A. WAGNER OF CHATTANOOGA FOR APPELLEE
O P I N I O N
Goddard, P.J.
This appeal from the Circuit Court of Hamilton County
concerns liability under the Tennessee Governmental Tort
Liability Act. The City of Chattanooga, Tennessee, the
Defendant/Appellant, appeals an award of $45,000 to Gregory
Hinton, Plaintiff/Appellee, for an injury he received while
playing basketball on a court owned and maintained by the City of
Chattanooga.
The City presents four issues, which we restate, as
follows:
1. Whether Mr. Hinton’s assumption of
risk precludes any recovery in this
matter.
2. Whether the City was negligent in
maintaining the condition of the gymnasium
floor throughout the play of the
basketball league on Sunday, January 19,
1997.1
3. Whether the City had notice that the floor
was in a dangerous condition based upon the
City’s practice of maintaining the floor by
dust mopping the floor before and during
games.
4. Whether the trial court erred in finding
that Mr. Hinton was 40% at fault and the
City was 60% at fault for Mr. Hinton’s
injuries.
We affirm the judgment of the Trial Court.
On Sunday afternoon, January 19, 1997, Mr. Hinton
arrived at the Tyner Recreation Center, which is owned and
operated by the City of Chattanooga Department of Parks and
Recreation, at approximately 3:45 to participate in a league
basketball game, which was administered by the City. Mr.
Hinton’s game was scheduled to begin at 4:00 p.m., but did not
begin until approximately 5:00 p.m.
1
The City’s brief refers to the date of Mr. Hinton’s injury as January
26, 1999, and Mr. Hinton’s brief refers to the date of his injury as January
26, 1997. The record refers to the date of Mr. Hinton’s injury as January 19,
1997, which is the date used by this Court.
2
Mr. Hinton, an employee of Huntco Steel, played on that
company’s basketball team. He had not participated in a
basketball league before, although he is an experienced amateur
player. Mr. Hinton stated that he walked onto the court to begin
warming up for his game once the game preceding his had ended.
Mr. Hinton testified that he had been on the court for
approximately sixty seconds when he felt his knee pop as he was
shooting a right-handed lay-up. He then fell to the floor.
Mr. Hinton was helped off the floor by teammates and
went outside the facility for air after the game had begun.
Although Mr. Hinton attempted to re-enter the game after he had
fallen, he felt that he could not continue. He testified that
he did not see that the floor was dusty before he began playing
on it, but noticed the dust on the floor when he sat down on the
bench on the sideline after he had fallen.
Mr. Hinton further testified that he told Jerry
Marshall, a coordinator of sports programs for the City, that the
floor was dusty and that it had caused him to slip. Mr.
Marshall, according to Mr. Hinton, stated that “he knew.” Mr.
Marshall gave Mr. Hinton a telephone number and told him that the
City would pay for his injuries and that he should call either
3
Clarence Williams, a recreation supervisor for the City of
Chattanooga Parks and Recreation, or him at that number.
Several of Mr. Hinton’s teammates testified regarding
what occurred that day. Clive Jackson, a co-worker with Mr.
Hinton and coach of the league team, testified that the league
was running behind that day. He further testified that while he
was there at the facility, he did not see anyone dust mop the
floor. He also testified that he saw Mr. Hinton’s foot slide out
from under him and saw him fall.
Fabian Timmons, another teammate of Mr. Hinton’s, also
testified that the league was running behind and that he saw no
one dust mop the floor between the end of the game preceding his
game and the start of his team’s warm-ups. Mr. Timmons did state
that he saw someone dust mop the floor at the end of his team’s
game. He also stated that he saw Mr. Hinton’s foot slide out
from under him as he went up for a lay-up. He stated that he
told the referees that floor was slick, but they laughed at his
comments.
Demetrius Tate and Charlie M. Smith, Jr., also
teammates of Mr. Hinton’s, stated that they too saw Mr. Hinton’s
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foot slide out from under him before he fell to the floor. Mr.
Tate also stated that he did not see anyone dust mop the floor.
The City acknowledged that it has a procedure for
maintaining the floor during the play of basketball games by dust
mopping the floor before the start of each game, at halftime of
the game, or as needed. The City argues that none of the players
on Mr. Hinton’s team complained that the floor was dusty or
dangerous before playing or during their play on the floor,
although at least one of the players maintains he informed the
referees about the floor’s condition. The City maintains that
the floor was dust mopped by City employees who were present
during the play of the league basketball games.
Furthermore, the City contends that it provided floor
mats for individuals to wipe their shoes on as they entered the
building, as well as wet towels for players to wipe their shoes
on as they began play. Mr. Hinton denies that the City provided
these things for the players.
Clarence Williams, the recreation supervisor, testified
that the normal practice for the City is to dust mop the floor
between games because dust can accumulate on the floor. He
acknowledged that the City had received complaints that the floor
5
was slippery before Mr. Hinton fell on January 19, 1997. He
further acknowledged that the City was aware that the cleaning
service hired by the City was not doing a good job of cleaning
the floor before Mr. Hinton’s injury.
Mr. Marshall testified that Jeff Strong, a City
employee who completed an incident report concerning Mr. Hinton’s
injury, told him that the City was having complaints about the
floor before Mr. Hinton’s injury. Mr. Marshall also admitted
that he gave Mr. Hinton the paper with the phone number to call
Mr. Williams or him.
Dr. Kurt Chambless treated Mr. Hinton and found that
he had suffered a rupture of the quadriceps tendon. Dr.
Chambless performed surgery to repair the injury.
The Trial Court found that both parties were at fault.
It stated that both parties should have foreseen that an injury
could occur if dust were on the basketball court. It noted that
the condition of the court was one “which the plaintiff with his
experience in basketball reasonably should have been able to
detect.” As for the City, the Trial Court found that it had a
duty “to provide a safe place for the activity being conducted
and the violation of that duty results in negligence.” The Trial
6
Court found Mr. Hinton to be 40% at fault and the City to be 60%
at fault. The Trial Court awarded Mr. Hinton $45,000 in damages.
The City’s first issue on appeal concerns whether Mr.
Hinton assumed the risk of injury by playing in the basketball
league and thus, is precluded from any recovery in this case.
The City argues that after Mr. Hinton was injured, “the game
continued without a need to dustmop [sic] the floors based on the
concerns of other players, employees of the City who administered
the league, or the referees.” The City contends that it provided
mats and wet towels for players to wipe their feet on and that
the City attempted to dust mop the floors at regular intervals or
as required.
Mr. Hinton argues that express assumption of the risk
is not applicable to this case and that implied assumption of the
risk no longer exists in Tennessee, citing Perez v. McConkey, 872
S.W.2d 897 (Tenn. 1994). In Perez, the Tennessee Supreme Court
stated that “the reasonableness of a party’s conduct in
confronting a risk should be determined under the principles of
comparative fault.” Perez,872 S.W.2d at 905. Mr. Hinton asserts
that the Trial Court analyzed the facts of this case using that
principle.
7
We find that the Trial Court evaluated Mr. Hinton’s
conduct under the principles of comparative fault, and the record
supports the Trial Court’s assignment of fault. Therefore, this
issue is without merit.
In its second issue, the City argues that it adequately
maintained the floor on which the basketball game was played.
The City contends that it attempted to make the floor as clean as
possible and to maintain it in a safe condition for play. The
City further asserts that Mr. Hinton and his teammates
acknowledged that the condition of the floor was safe by playing
on the floor.
Mr. Hinton argues that the Trial Court found that the
City breached its duty to him by not properly maintaining the
gymnasium floor. He further asserts that the failure by the City
to maintain the floor was an operational omission, not a
discretionary one, and thus, the City is not immune from
liability under the Tennessee Governmental Tort Liability Act.
The Tennessee Governmental Tort Liability Act grants
immunity, subject to certain statutory exceptions, to
governmental entities such as the City of Chattanooga. See Tenn.
Code Ann. § 29-20-201.
8
Governmental entities are immune from liability for
discretionary acts under Tennessee Code Annotated § 29-10-205,
which provides in pertinent 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:
(1) Arises out of the exercise or performance or
the failure to exercise or perform a discretionary
function, whether or not the discretion is abused.
In 1992, the Tennessee Supreme Court adopted the
“planning-operational test” to determine whether an action or
inaction by a governmental entity is considered discretionary.
Bowers v. City of Chattanooga, 826 S.W.2d 427 (Tenn. 1992). In
that case, the Court discussed the difference between planning
and operational:
If a particular course of conduct is determined after
consideration or debate by an individual or group
charged with the formulation of plans or policies, it
strongly suggests the result is a planning decision.
These decisions often result from assessing priorities;
allocating resources; developing
policies; or establishing plans, specifications, or
schedules.
On the other hand, a decision resulting from a
determination based on preexisting laws, regulations,
policies, or standards, usually indicates that its
maker is performing an operational act. Similarly
operational are those ad hoc decisions made by an
individual or group not charged with the development of
plans or policies. These operational acts, which often
9
implement prior planning decisions, are not
“discretionary functions” within the meaning of the
Tennessee Governmental Tort Liability Act.
Bowers, 826 S.W.2d at 431.
The record indicates that the gymnasium floor was dusty
and slick. The City’s failure to maintain the floor by following
its customary procedure for dust mopping the floor is clearly
operational, not discretionary, in nature. Therefore, the City’s
immunity from liability is removed.
The City’s third issue is that Mr. Hinton did not offer
any evidence that the City had actual or constructive notice of a
dangerous condition. The City argues that Mr. Hinton did not
allege in his pleadings that the basketball court was in a
dangerous condition.
Mr. Hinton asserts that the evidence overwhelmingly
indicates that the City had notice of the dangerous condition of
the floor. With respect to the pleadings, Mr. Hinton argues that
he did allege that the floor was “not safe for play and was in an
unsafe condition” (emphasis added). Mr. Hinton contends that “if
the floor is not safe for play, it must be dangerous.”
Furthermore, Mr. Hinton maintains that the City, through its
1 0
agents and employees, had actual knowledge of the floor’s dusty
condition. Mr. Williams testified that the City had received
complaints about the condition of the floor and that he and
others in City management had been displeased with the quality of
the work performed by the cleaning service hired to maintain the
floor.
The record contains ample evidence that the City was
well aware of the condition of the floor, and City employees had
complained themselves about the quality of the work performed by
the cleaning service. Therefore, this issue is without merit.
Finally, the City argues that this Court has the
authority to reallocate the percentage of liability, citing
Wright v. City of Knoxville, 898 S.W.2d 177 (Tenn. 1995). The
City argues that in light of the evidence, this Court should find
that Mr. Hinton was no less than 50% at fault. Mr. Hinton,
however, asserts that the evidence supports the Trial Court’s
findings, and thus, the Trial Court’s judgment should not be
disturbed on appeal. Citing Wright, Mr. Hinton maintains that
the “trier of fact has considerable latitude in allocating
percentages of fault” to the parties.
1 1
In Wright, the Tennessee Supreme Court stated the
following regarding the standard of review:
Although it is true that the trier of fact
has considerable latitude in allocating
percentages of fault to negligent parties, see
e.g., Martin v. Bussart, 292 Minn. 29, 193 N.W.2d
134 (1971), appellate courts may alter those find-
ings if they are clearly erroneous. Because this
case was tried without a jury, our review of the
issues of fact is de novo on the record of the
trial court. However, we must presume that the
trial court’s findings were correct unless the
preponderance of the evidence is otherwise. Tenn.
Code Ann. § 27-3-103; Tenn.R.App.P. 13(d).
Wright, 898 S.W.2d at 181.
The Minnesota court in Martin stated its standard of
review to be the following:
Upon a review of a jury’s apportionment of
negligence between tortfeasors we are governed by
those same standards--that is, we will not
substitute our judgment for that of the jury
unless there is no evidence reasonably tending to
sustain the apportionment or the apportionment is
manifestly and palpably against the weight of the
evidence.
Martin v. Bussart, 193 N.W.2d 134, 139 (Minn. 1971). We note
that the Martin was a jury case, whereas Wright was a nonjury
case.
1 2
Following the decision in Wright, two different
standards of review for comparative fault cases appear to have
developed: a “clearly erroneous” standard and a preponderance of
the evidence standard. The Western Section of this Court appears
to have adopted the clearly erroneous standard. See Griggs v.
Mixon, filed in Jackson on August 6, 1996; Nichols v.
Metropolitan Government of Nashville and Davidson County, filed
in Nashville on July 12, 1996. This section of this Court
appears to have adopted the preponderance of the evidence
standard. See Varner v. Perryman, 969 S.W.2d 410 (Tenn. Ct. App.
1997); Richardson v. City of Knoxville, filed in Knoxville on
October 3, 1996.
We believe that the proper rule for nonjury cases is
provided by Rule 13(d) of the Tennessee Rules of Appellate
Procedure: we review the findings of fact by the trial court de
novo with a presumption of correctness, unless the evidence
preponderates against the judgment of the Trial Court. Rule
13(d) of the Tennessee Rules of Appellate Procedure also provides
that for cases decided by a jury, findings of fact may be set
aside only if there is no material evidence to support the
verdict.
1 3
However in this case, using either the preponderance of
the evidence standard or the clearly erroneous standard, we are
of the opinion that the Trial Court should be affirmed.
For the foregoing reasons, the judgment of the Trial
Court is affirmed and the cause remanded for collection of the
judgment and costs below. Cost of appeal are adjudged against
the City of Chattanooga and its surety.
_______________________________
Houston M. Goddard, P.J.
CONCUR:
________________________________
Herschel P. Franks, J.
________________________________
Charles D. Susano, Jr., J.
1 4