Cynthia Y. Long v. City of Maryville - Dissenting

• Court: Court of Appeals of Tennessee
• Decided: March 9, 2000
• Docket: E1999-00024-COA-R3-CV
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE FILED March 9, 2000

Cecil Crowson, Jr. Appellate Court Clerk

E1999-00024-COA-R3-CV CYNTHIA Y. LONG, ) C/A NO. 03A01-9906-CV-00206 ) Plaintiff-Appellant,) ) ) v. ) APPEAL AS OF RIGHT FROM THE ) BLOUNT COUNTY CIRCUIT COURT ) ) ) CITY OF MARYVILLE, ) ) HONORABLE W. DALE YOUNG, Defendant-Appellee. ) JUDGE

DISSENTING OPINION

I dissent because I do not find that the evidence

preponderates against the trial court’s judgment dismissing the

plaintiff’s complaint. In fact, there is precious little

evidence in the record bearing on the culpability of the City of

Maryville (“the City”). In my judgment, the proof shows little

more than that the plaintiff slipped and fell on icy pavement in

a city park at a place near a functioning water fountain on a day

1 when the temperature was at or below freezing. What the evidence

does not show is negligence of an employee of the City; notice to

the City of a condition of the type described in T.C.A. § 29-20-

203(a); or the necessary causal connection between actionable

conduct on the part of the City and the plaintiff’s fall.

The plaintiff testified that she slipped and fell on an

icy patch on a paved walkway in a park owned and maintained by

the City while walking with a friend on January 5, 1995, between

5:00 and 5:30 p.m. The plaintiff testified that it was “dusky

dark.” It is a reasonable inference from the evidence that the

ice resulted from a mist emanating from a nearby water fountain.

The temperature at the time of the fall was at or near freezing.

The plaintiff testified that an overhead light in the vicinity of

her fall was not functioning when she fell. Her testimony

further shows that tape was affixed to the light pole. There was

testimony that in the process of fixing lights, the City would

mark with tape the lights to be replaced or fixed. The husband

of the plaintiff’s walking companion testified that he reported

lights being out in the park in the November - December, 1994,

time frame but he was not sure of the exact date of his report.

An employee of the City testified that such a report had been

2 received in November, 1994, and that the lights were fixed by

December 2, 1994 -- more than a month before the plaintiff fell

on January 5, 1995. There is no proof in the record that the

City received a report of lights being out between December 2,

1994, and January 5, 1995.1 In my judgment, the proof in the

record falls woefully short (1) of proving notice of a

“defective, unsafe, or dangerous condition of any...sidewalk”

under T.C.A. § 29-20-203(b); or (2) of making out a “negligent

act or omission of any employee” of the City under T.C.A. § 29-

20-205; or (3) of showing a causal link between the light bulb

being out and the plaintiff’s fall. In any event, the evidence

offered by the plaintiff is not such as to persuade me to find

that the evidence preponderates against the trial court’s

judgment. I would affirm the judgment of the trial court.

__________________________ Charles D. Susano, Jr., J.

1 This is also no proof that the lack of lighting impaired the plaintiff’s ability to see the icy pavement.