Day on Torts
There are many hurdles to successfully bringing a premises liability case in Tennessee, and often the most difficult of which is proving that the defendant had notice of the dangerous condition allegedly responsible for causing the plaintiff’s injuries.
In Merrell v. City of Memphis, Tennessee, No. W2013-00948-COA-R3-CV (Tenn. Ct. App. Jan. 16, 2014), the court of appeals affirmed a bench verdict in favor of the defendant in a case where the plaintiff sued the City of Memphis for negligently failing to fix or warn about a pothole in the City’s road that caused the plaintiff’s motorcycle to crash.
Cases against local governmental entities are brought under Tennessee’s Governmental Tort Liability Act (“GTLA”), and they are decided by judges instead of juries. Further, the City, just like in all GTLA claims, was protected from suit under the doctrine of sovereign immunity unless the plaintiff was able to successfully argue that an exception to immunity applied. Here, the plaintiff was required to show, under Tenn. Code Ann. § 29-20-203, that the City’s had actual or constructive notice of the pothole.
According to a City pothole foreman who testified at trial, the pothole that allegedly caused the plaintiff’s motorcycle crash was located on a “troublesome road.” Heavy truck traffic tended to cause more damage to the road’s surface so crews regularly patrolled the road looking for potholes and other damage. Also, the area close to the crash site received more frequent patrols because of a water leak in the area, and the road had been repaired eleven times over an eighteen month period. Importantly, however, there was no proof submitted at trial the particular pothole or the area of the road was more troublesome than other areas. The record showed that there hadn’t been any repairs to the location for more than a year prior to the plaintiff’s crash. Nor was there any proof that the City had failed to respond to calls about the pothole at issue. With no indication that the regular patrols of the road had revealed actual knowledge of the pothole, and no other reports of the specific pothole, the Merrell court affirmed the trial court’s ruling that the City did not have actual notice of the dangerous condition allegedly responsible for the plaintiff’s motorcycle crash.
As for the plaintiff’s attempt at proving constructive notice of the pothole, he relied on Tennessee’s “common occurrence” theory, which spares the burden of proving the duration of the dangerous condition and instead allows a finding of constructive notice by showing a pattern of conduct, recurring incident, or general continuing condition that caused the dangerous condition. But, again, the plaintiff’s proof fell short because there was no indication that the particular pothole had been a recurring problem prior to the date of the crash. In distinguishing the plaintiff’s claim from a similar case he cited as supporting authority, Bivens v. City of Murfreesboro, M2009-01590-COA-R3-CV, 2010 WL 2730599 (Tenn. Ct. App. July 9, 2010), the Merrell court noted that the city in Bivens knew about numerous crashes on the road at issue and also knew that the road itself failed to comply with national safety standards and guidelines. Contrary to the facts in Merrell, the city in Bivens had knowledge that the entire road was a dangerous condition. Here, there was no proof that as of the date of the crash the City was aware of any crashes that had occurred at the location of the particular pothole at issue. There was also nothing in the record that indicated any portion of the road failed to comply with national safety guidelines at the time of the crash. Finally, there was no proof that the City had routinely conducted repairs to the pothole or that the pothole routinely recurred.
Simply put, the plaintiff needed more proof. There was insufficient evidence to show that the City knew or should have known about the existence of the pothole. Additionally, the facts failed to demonstrate that the City was aware that road generally presented a dangerous condition, either in comparison to other areas or according to safety guidelines.
Click on the link for more information about injury claims against Tennessee local governments. Injury claims against the State of Tennessee are governed by a different statute; click on the link to find more information about those claims.