Bradford v. City of Clarksville

885 S.W.2d 78, 1994 Tenn. App. LEXIS 303
CourtCourt of Appeals of Tennessee
DecidedJune 3, 1994
StatusPublished
Cited by32 cases

This text of 885 S.W.2d 78 (Bradford v. City of Clarksville) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bradford v. City of Clarksville, 885 S.W.2d 78, 1994 Tenn. App. LEXIS 303 (Tenn. Ct. App. 1994).

Opinion

FARMER, Judge.

Appellees, Paula and William Bradford, filed suit pursuant to the Governmental Tort Liability Act, T.C.A. § 29-20-101, et seq., against Appellant, the City of Clarksville (City), alleging that Mrs. Bradford sustained permanent injuries when a defective gas and/or water meter cover gave way under her step causing her to fall. The complaint alleges that the City “owned, maintained and controlled” the meter “through its Gas, Water and Sewer Department” and that the accident proximately resulted from the City’s failure to repair the defective cover. The Bradfoi'ds further alleged that the City had actual or constructive notice of the defect prior to the date of the accident on December 2, 1989. Mr. Bradford sought $50,000 in damages for the loss of services and consortium of his wife and the medical expenses incurred on her behalf. Mrs. Bradford sought damages totalling $150,000.

The City denied liability, pleading the defense of governmental immunity. It contended, inter alia, that it had neither actual nor constructive notice of any alleged defect and that, if any defective condition should be proven, it was latent. The City filed a motion for summary judgment, based in part on its assertion of governmental immunity, which was denied by the trial court. A bench trial proceeded with the City moving to dismiss at the close of the Bradfords’ proof. This motion was also denied. No further evidence was presented. The trial court found the City liable and determined that the Bradfords’ total damages were $30,-000. The court concluded, however, that [80]*80Mrs. Bradford was 20% negligent. Judgment was subsequently entered for $24,000.1

The City presents the following issues for our consideration:

I. Whether the trial court improperly denied the Defendant’s motion for summary judgment?
II. Whether the trial court erred by not dismissing the Plaintiffs’ action after a trial on the merits?
III. Whether the trial court erred by accepting the testimony of Charlie Foust as an expert?

Appellees present the following additional issue:

I. Whether the trial court erred by not granting an adequate judgment to plaintiffs?

The City contends that the trial court erred in denying its motion for summary judgment. A trial court’s denial of a motion for summary judgment, predicated upon the existence of a genuine issue of material fact, is not reviewable on appeal when a judgment is subsequently rendered after a trial on the merits. Hobson v. First State Bank, 777 S.W.2d 24, 32 (Tenn.App.1989).

The City next contends that the Bradfords failed to prove the requisite statutory elements2 and, as such, the trial court erred in failing to dismiss the action at the close of proof. In Catt v. Catt, 866 S.W.2d 570 (Tenn.App.1993), this Court stated:

But in the non-jury ease, when a motion to dismiss is made at the close of plaintiffs case under Rule 41.02(2), the trial judge must impartially weigh and evaluate the evidence in the same manner as though he were making findings of fact at the conclusion of all of the evidence for both parties, determine the facts of the case, apply the law to those facts, and, if the plaintiffs ease has not been made out by a preponderance of the evidence, a judgment may be rendered against the plaintiff on the merits, or, the trial judge, in his discretion, may decline to render judgment until the close of all the evidence. The action should be dismissed if on the facts found and the applicable law the plaintiff has shown no right to relief.

Catt, 866 S.W.2d at 572 (quoting City of Columbia v. C.F.W. Constr. Co., 557 S.W.2d 734 (Tenn.1977)).

Mrs. Bradford described the incident by stating that she left her father’s business, known as the Hee-Haw Shop, to purchase a cup of coffee at a cafe located “right around the corner in the back of [her] father’s shop.” After purchasing the coffee, she proceeded back toward her father’s business, crossing Legion Street. Next, she states, “I remember looking to the sidewalk ... to step up on the sidewalk. And as I was walking, it was almost like the ground gave way underneath my foot ... and I just — I fell forward.” Mrs. Bradford was questioned as to whether she was able to determine what caused her to fall, to which she replied, “I mean, I noticed the lid. I heard it clank. I remember it clanking ... when I fell. So by that time ... I knew what had happened.”

Charles Foust, Jr., president of Clarksville Foundry, Inc., testified that he examined the meter box in question in February 1992. He stated the rim “is the device that accepts the cover in the closed position. It’s east in the sidewalk in concrete.” He stated that “[t]he rim and cover are designed to hinge in such a way that the cover closes on the rim properly” and that the hinging mechanism on the rim contained “a couple of broken parts that were no longer present.” He further testified that the “moving part” of the hinge located in the cover was “incompletely [81]*81formed.” Foust stated that the parts that were missing served to guide the cover to a proper closure. If the lid is closed on the subject meter box, the hinge is not capable of holding it in place without its “counterpart” on the other side of the cover, “which acts as a latch to hold it down.” Foust opined that the rim had been broken “for quite some time,” possibly exceeding 20 years. When asked what he based his opinion on, he stated:

Well, a fresh fracture in cast iron has a very distinct appearance. It’s kind of a gray or sometimes a little shiny appearance. Cast iron rusts very slowly. It rusts much more slowly than steel does. And based on the fact that it had rusted over and the thickness and condition of the rust, that’s what I base it on.

Foust stated that the cover he examined bore a patent number which patent provides for a locking mechanism on the underside of the cover. This locking mechanism is the “counterpart” Foust referred to as necessary for the hinge to hold the lid in place.

On cross-examination, Foust stated that the broken pieces do not support the rim that holds the lid when it is closed. Consequently, the lid “can be placed within its seat in the rim without the guidance of the hinge.... ” He agreed that without the lock, the hinge, broken or otherwise, adds no stability to the lid if seated properly within the rim. When asked whether the lid, if seated properly, would have the same stability as the “vast majority of the meter lids that are in the market today,” Foust responded, “I would have to say no, based on the fact that the rim underneath is not — doesn’t have the height of some of the ones you see today.” Foust stated that he answered differently in his deposition because “[i]t simply didn’t occur to [him].” He continued that since being deposed, he looked at numerous other patterns for meter lids and determined that there is one feature (a deeper rim) that “would possibly make another type of meter lid more secure in its seat.”3

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Bluebook (online)
885 S.W.2d 78, 1994 Tenn. App. LEXIS 303, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bradford-v-city-of-clarksville-tennctapp-1994.