Day on Torts
Where plaintiff did not have sufficient evidence of notice of the washout and sinkhole on a road, summary judgment for the county was affirmed.
In Roberts v. Carter, No. W2023-01316-COA-R3-CV (Tenn. Ct. App. Oct. 7, 2024) (memorandum opinion), plaintiff filed suit after having a car accident on a county road due to a sinkhole and washout. Although the Court of Appeals had overturned an earlier grant of summary judgment, in this memorandum opinion it affirmed the ruling that plaintiff had not presented sufficient evidence to create a genuine issue of material fact as to notice.
Plaintiff’s complaint cited three sections of the GTLA, but on this appeal, only the claim under Tenn. Code Ann. § 29-20-203 was addressed in plaintiff’s brief. Pursuant to that section of the GTLA, immunity for a governmental entity may be removed “for an injury caused by a defective, unsafe, or dangerous condition of any street…owned and controlled by such governmental entity,” but only if the governmental entity had actual or constructive notice of the dangerous condition. Here, plaintiff admitted that the county did not have actual notice of the washout, so the issue was whether plaintiff had enough evidence to show constructive notice.
Constructive notice can be shown in three ways—by showing that the owner created the condition, by showing that the condition existed for so long that the owner should have reasonably been aware of it, or by showing a pattern or recurring conduct. The Court found that plaintiff presented no evidence of a pattern here, and that there was nothing in the record to show when this culvert was installed or that the culvert was installed in a defective way. Regarding the passage of time theory, plaintiff pointed to evidence that a county employee had noticed erosion on this road over the previous twelve years. The Court pointed out, though, that the erosion was on the other side of the culvert, and there was no evidence at all regarding erosion on the relevant side. Due to the lack of evidence of notice, summary judgment was affirmed.
This memorandum opinion was released 3.5 months after oral arguments in this case.