IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE FILED March 7, 2000
Cecil Crowson, Jr. Appellate Court Clerk
E1999-01697-COA-R3-CV RAY GABRIELLE COX, ) C/A NO. 03A01-9902-CV-00074 ) Plaintiff-Appellee, ) ) ) ) v. ) APPEAL AS OF RIGHT FROM THE ) ANDERSON COUNTY CIRCUIT COURT ) ) ANDERSON COUNTY HIGHWAY ) DEPARTMENT and ANDERSON COUNTY, ) TENNESSEE, ) ) HONORABLE JAMES B. SCOTT, JR., Defendants-Appellants.) JUDGE
For Appellants For Appellee
DAVID A. STUART ROGER L. RIDENOUR Clinton, Tennessee Ridenour, Ridenour & Fox Clinton, Tennessee
O P I N IO N
AFFIRMED IN PART
1 REVERSED IN PART REMANDED Susano, J. In this tort action, the defendants appeal from an
award of compensatory damages capped by the trial court at
$130,000 pursuant to the Governmental Tort Liability Act
(“GTLA”). They also seek to reverse the trial court’s decision
to assess them with discretionary costs of $3,440.98. We affirm
all of the trial court’s judgment except the award of
discretionary costs.
This action arises out of personal injuries sustained
by the plaintiff in a one-vehicle accident on a rural road in
Anderson County. Ray Gabrielle Cox sued the Anderson County
Highway Department and Anderson County (collectively “the
County”), invoking provisions of the GTLA1, and claiming that the
dangerous condition of the roadway caused the accident. After a
bench trial, the court awarded Cox $130,000 in compensatory
damages and $3,440.98 in discretionary costs, for a total award
1 Cox alleges that the County is liable pursuant to T.C.A. § 29-20-203 (Supp. 1999), which provides, in pertinent part, as follows:
(a) Immunity from suit of a governmental entity is removed for any injury caused by a defective, unsafe, or dangerous condition of any street, alley, sidewalk or highway, owned and controlled by such governmental entity. “Street” or “highway” includes traffic control devices thereon.
(b) This section shall not apply unless constructive and/or actual notice to the governmental entity of such condition be alleged and proved....
Cox also alleges that the County is liable pursuant to T.C.A. § 29-20-205 (Supp. 1999), which provides, in pertinent part, as follows:
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....
2 of $133,440.98. The County appeals, raising the following
issues:
1. Does the County have governmental immunity from the claims asserted by Cox?
2. Did the trial court correctly apportion fault between the County and the driver of the vehicle in which Cox was a guest passenger?
3. Can a governmental entity be assessed discretionary costs if to do so would cast it in judgment for an amount in excess of $130,000, the maximum allowable award under the GTLA?
I.
On the evening of August 16, 1993, at approximately
8:00 p.m., Cox, then 18 years of age, was a guest passenger in a
minivan being driven by 16-year-old Dusti Dawn Howard. They were
proceeding south on Carroll Hollow Road, a rural county road
located in Anderson County. Howard estimates that she was
driving between 20 and 30 miles per hour when her vehicle’s right
front wheel dropped off the edge of the pavement at a point where
the road in her direction curved slightly to the right. Howard
was unable to maneuver back onto the paved surface, and, as a
consequence, she lost control of her vehicle. The vehicle
traveled down a slope and eventually crashed into a tree
approximately 146 feet from where it left the road.
As Howard was approaching the site of the accident, she
was proceeding downhill. The investigating officer testified
that the accident occurred in “what they call a holler.” He also
3 stated that the roadway at that location is in a heavily-wooded
area with, in the words of the officer, “hills on both sides of
the roadway [that] blocked the sunset very early in the evening.”
He testified that the scene of the accident was dark when he
arrived there at 8:36 p.m.
As a result of the accident, Cox suffered a fractured
vertebra, which required surgery and physical therapy. She
testified that she had been unable to work because of her
injuries and had incurred medical expenses exceeding $131,977.
Cox filed this action against the County, alleging that
the dangerous condition of the road and Howard’s negligent
driving,2 in combination, were the proximate cause of the
accident and her resulting injuries. The County filed an answer,
denying that the road was in an unsafe condition and asserting
that Howard’s negligence was the sole proximate cause of the
accident. Prior to trial, the court below granted the County’s
motion for partial summary judgment, finding, pursuant to the
GTLA,3 that the County’s liability could not exceed $130,000.
A bench trial was held on January 13, 1999. Cox
presented the testimony of Dr. Leighton Sissom, a consulting
engineer, who testified regarding the condition of the road at
the point where Howard left the paved surface and lost control of
2 Cox filed a separate action against Howard. The parties settled that claim prior to the trial of the instant case.
3 See T.C.A. § 29-20-404(a) (Supp. 1999)(“A governmental entity...shall not be held liable for any judgment in excess of the limits of liability set forth in [T.C.A.] § 29-20-403...”); T.C.A. § 29-20-403(b)(2)(A) (Supp. 1999) (insurance must provide minimum coverage of $130,000 for death or bodily injury).
4 her vehicle. He explained that at the place where the vehicle
went off the road, the pavement had narrowed by 20 inches, from
18 feet to 16 feet, 4 inches. A diagram prepared by Dr. Sissom
shows that the pavement was 18 feet wide at a point some 22.5
feet back from where Howard’s front right wheel went off the
road. The diagram also shows the pavement narrowing from that
maximum width of 18 feet down to a width of 16 feet, 4 inches,
where Howard’s vehicle left the road. Dr. Sissom’s diagram,
which was admitted into evidence as an exhibit, is attached as an
appendix to this opinion.
Dr. Sissom also observed that there was no center line
painted on the road, nor was there a white fog line on the
pavement to mark the road edge. He stated that there were no
signs posted to warn of the sudden narrowing of the pavement.
Dr. Sissom further noted that the edge of the pavement was
crumbling, and had sunk and deteriorated from erosion, which
condition, he opined, “would tend to cause a vehicle running over
it to roll to the right” and would “make[] it more difficult to
control the vehicle.” Dr. Sissom further testified that there
was no shoulder to the road; thus, where the pavement stopped,
there was a four to six inch drop off to the ground below, which
was a hillside that sloped at a 50 degree angle. It was Dr.
Sissom’s testimony that as Cox’s “vehicle progressed southward it
simply ran out of pavement staying on its same course.” He
further opined that
[i]t would be impossible...for a driver to regain control of the vehicle once the wheel dropped off of that four to six inch drop off. I just don’t think it would be possible
5 for the vehicle to come back under control after that. It would then be aggravated by the slope of the roadway which would tend to cause the vehicle to roll to the right.
Dr. Sissom stated that, given the condition of the road, a
vehicle traveling at only 15 miles per hour would be unable to
regain control once a wheel dropped off the pavement. Finally,
Dr. Sissom expressed his opinion as to the cause of the accident:
My opinion is that the driver simply ran out of road. That the road narrowed 20 inches. That’s a big space. The road narrowed 20 inches in a very short space and the narrowing took place where the roadway had sunk where the edge of the roadway, the shoulder had eroded away letting there be a major drop off. There was no warning sign about the narrowing of the roadway...[and] there was no speed limit sign also in that direction.
Q. In your expert opinion, did the driver of the vehicle have any responsibility in this collision?
A. Oh, of course, yes, sir.
In its memorandum opinion, the trial court held that
Cox had sustained damages of $550,000 as a result of the
accident. The trial court further held:
First, this Court assigns to the Defendant, Dusti D. Howard,4 seventy percent (70%) of the legal fault of this accident. She was negligent in operating her vehicle so that the right wheel came too close to the edge of the road - the road was depressed and the edge had crumbled and she simply ran out of
4 Cox’s action against the County had originally been consolidated with her action against Howard. As indicated in footnote two to this opinion, Cox’s suit against Howard was resolved by settlement prior to trial. However, because the County had alleged Howard’s comparative fault as a defense, the trial court addressed the relative fault of Howard.
6 road surface. When the right wheel dropped and caught on the edge of the road, control of the vehicle was irretrievably lost because of the unsafe condition of the roadway and road edge.
However, the County cannot escape a share of legal fault for those conditions neglected by the county - conditions that should have been addressed so as to prevent the entrapment of the vehicle. This Court finds that the plaintiff has carried the burden of proof as to the issue of waiving government immunity under T.C.A. 29-20-203. The legal expression of this finding is to find that the road was “defective, unsafe or dangerous.” The County had actual knowledge that the roadway was dangerous at the point where the accident occurred for guard rails had been recommended previous to the date of the accident. Guard rails or the failure of installing guard rails will not give rise to a waiver of governmental immunity. However, the combined facts of negligence issued forth by the proof is sufficiently convincing to conclude that reasonable inexpensive measures should have been observed by the county to warn, repair and prevent the dangerous condition created by the neglect.
The trial court assessed the remaining 30% of fault to the
County, but limited the award of compensatory damages to $130,000
in accordance with the GTLA. After the trial, the court awarded
Cox discretionary costs in the amount of $3,440.98. This appeal
followed.
II.
In this non-jury trial, our review is de novo upon the
record with a presumption of correctness as to the trial court’s
factual findings, unless the preponderance of the evidence is
otherwise. Rule 13(d), T.R.A.P.; Wright v. City of Knoxville,
898 S.W.2d 177, 181 (Tenn. 1995). The trial court’s conclusions
7 of law, however, are not accorded the same deference. Campbell
v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Presley
v. Bennett, 860 S.W.2d 857, 859 (Tenn. 1993).
III.
A.
The first issue on appeal is whether the County has
immunity from Cox’s claims. The GTLA provides general immunity
to all governmental entities, removing that immunity only in
limited and specified instances. Kirby v. Macon County, 892
S.W.2d 403, 406 (Tenn. 1994). One of those instances is at issue
here, namely T.C.A. § 29-20-203(a), which removes a governmental
entity’s immunity from suit “for any injury caused by a
defective, unsafe, or dangerous condition of any street...or
highway....”
Whether a particular site is “defective, unsafe, or
dangerous” for the purpose of removing governmental immunity is a
question of fact. Coln v. City of Savannah, 966 S.W.2d 34, 45
(Tenn. 1998). Thus, we must determine whether the evidence
preponderates against the trial court’s factual finding that the
subject road was in “a defective, unsafe, or dangerous
condition.” See Wright, 898 S.W.2d at 181.
In determining whether a road is in a “defective,
unsafe, or dangerous condition,” the Supreme Court has instructed
courts to “consider the physical aspects of the roadway, the
8 frequency of accidents at that place in the highway and the
testimony of expert witnesses in arriving at this factual
determination.” Helton v. Knox County, 922 S.W.2d 877, 883
(Tenn. 1996)(quoting Sweeney v. State, 768 S.W.2d 253, 255 (Tenn.
1989)).
As previously indicated, Cox presented the testimony of
an expert on the issue of whether the subject road was in a
“defective, unsafe, or dangerous condition” at the time of the
accident. Dr. Sissom testified that the roadway narrowed,
unexpectedly, by 20 inches and that there were no signs to warn a
motorist of this sudden narrowing, or to otherwise caution a
driver about this condition. In addition, Dr. Sissom stated that
there were other aspects of the roadway that contributed to its
dangerous condition, i.e., the lack of a center line, the absence
of a fog line to mark the edge of the pavement, an eroding road
edge, the lack of a usable shoulder, and a drop off of four to
six inches from the pavement to the sloping hillside.
The County argues that the road is not “defective,
unsafe, or dangerous” because there was no evidence of any prior
accidents at the site. We reject the thrust of this argument.
Although the frequency of accidents is a consideration in
determining whether a roadway is dangerous, such evidence, or the
lack thereof, is not necessarily determinative of the issue. See
Helton, 922 S.W.2d at 884 (“the fact of, or absence of, prior
accidents is only one element in the equation”).
9 The County also argues that the condition of Carroll
Hollow Road is not “unusual” in that there are countless other
roads in Anderson County with the same conditions. While this
may be the case, we note that Dr. Sissom testified that he could
not recall having investigated a road “where so many problems
came to bear at the very same point.” Even assuming that these
conditions are common to many county roads in Anderson County,
this does not make the subject road any less dangerous; nor can
the existence of these conditions on other roads in Anderson
County serve to absolve the County of its responsibility to
maintain the subject road in a safe condition. The evidence does
not preponderate against the trial court’s factual determination
that the subject road was in a “defective, unsafe, or dangerous
condition” at the time of the accident. See T.C.A. § 29-20-
203(a). We base this determination solely upon the fact that the
evidence is uncontradicted that the roadway unexpectedly narrowed
by 20 inches at the site of the accident and that there was no
signage to warn of this narrowing or to otherwise caution a
driver regarding this condition. While each of the other matters
noted by Dr. Sissom -- the lack of markings, the eroding road
edge, the lack of a usable shoulder, and the drop off of four to
six inches to the sloping hillside -- might or might not be
sufficient, singularly or in some combination, to create a
dangerous condition, these other features of the right-of-way and
the topographical and vegetative features of the area certainly
tended to make the narrowing and lack of signage more dangerous
than would have been the case in the absence of these other
conditions in this shaded “holler.”
10 B.
The next question we must resolve is whether the County
had notice, either actual or constructive, of the dangerous
condition found by the trial court. See T.C.A. § 29-20-203(b).
“Actual notice” has been defined as “knowledge of facts and
circumstances sufficiently pertinent in character to enable
reasonably cautious and prudent persons to investigate and
ascertain as to the ultimate facts.” Kirby, 892 S.W.2d at 409
(quoting Texas Co. v. Aycock, 227 S.W.2d 41, 46 (Tenn.
1950)(internal quotation marks omitted)). “Constructive notice”
has been defined as “information or knowledge of a fact imputed
by law to a person (although he [or she] may not actually have
it), because he [or she] could have discovered the fact by proper
diligence, and his [or her] situation was such as to cast upon
him [or her] the duty of inquiring into it.” Kirby, 892 S.W.2d
at 409 (quoting Black’s Law Dictionary 1062 (6th ed.
1990)(internal quotation marks omitted)). However, if a road was
constructed in the defective condition complained of -- and has
remained in that condition -- then no further notice, actual or
otherwise, is required; rather, the governmental entity is
charged with notice from the time of the defective construction.
See Glover v. Hardeman County, 713 S.W.2d 73, 76 (Tenn.Ct.App.
1985).
The trial court found, in its words, that “[t]he County
had actual knowledge that the roadway was dangerous at the point
where the accident occurred for guard rails [sic] had been
recommended previous to the date of the accident.” The County
11 contends that this finding is erroneous because, so the argument
goes, there is no evidence that the installation of guardrails
was recommended to the County prior to the accident. We agree.
The evidence clearly shows that it was only after the accident
that the County received a request for the installation of
guardrails at the location of the accident. The only
notification that the County received before the accident
concerning a “dangerous” condition on Carroll Hollow Road was a
letter, received in 1992, complaining of overgrown brush
obstructing visibility at an intersection approximately a quarter
of a mile from the accident site. We fail to see how such a
complaint, regarding a different section of the road, not in the
vicinity of this accident, and a completely different condition,
can be construed as giving the County notice of the dangerous
condition at issue in this case, i.e., the sudden narrowing of
the road without cautionary signs.
We do find, however, that the notice requirement of
T.C.A. § 29-29-203(b) has been satisfied in this case. The
evidence preponderates that the road, as originally laid out, and
as subsequently paved and re-paved prior to the accident,
narrowed by 20 inches at the point where the plaintiff’s vehicle
left the paved surface. Mike Ellis, a former Anderson County
Road Superintendent, testified that the State of Tennessee paved
12 Carroll Hollow Road in 1982 as a “state aid road.”5 He quoted
from a document in the County’s files:
This was dated December 3rd, 1982. Please be advised that the paving was completed on 10- 29-82 and hereby returned to Anderson County.6
He was further examined on the subject of Carroll
Hollow Road as follows:
Q And in fact, you have some relatives who live out there and you drove the road rather frequently, is that right?
A True.
* * *
Q Okay. Which relative of yours is it that lives out there?
A My grandmother.
Q And during the time before the guardrail went up, how often would you say you traveled that road on average?
A Oh, I don’t know. Twice a week.
Q Okay. And you’ve lived in Anderson County all your life, is that right?
A Yes.
5 Ellis explained a “state aid road” as follows:
A state aid is where the county has certain mileage in the county and the state will come in and take a percentage of that mileage and make rural roads state aid roads. And one thing it’s got to do is it’s got to meet a state aid road or a state road. Then they will evaluate the road and do the paper work and take it to Nashville and then they will say it was a state aid road. And then they will come and pave -- pay for paving that road. 6 Even if the road was paved by the state, or the paving was paid for by the state, this does not change the fact that Carroll Hollow Road is a county road and hence the responsibility of the County. See T.C.A. § 54-7-109 (1998).
13 Q Has your grandmother lived there your whole life?
Q So, you’ve traveled that road since you were a child?
Q Do you remember when the road was a gravel road?
A Vaguely.
Q Okay. Do you remember about when it was paved, the very first time?
A No.
Q Okay. As far as when it was a gravel road, the road has not been reconstructed since it was a gravel road, it simply had an asphalt pavement put on it, is that right?
A To my knowledge, that’s right.
Q I mean, nobody’s regraded it, other than just grading the gravel, they haven’t widened it, they haven’t constructed shoulders, they haven’t done anything to change it, except put asphalt on it?
A Right.
(Emphasis added).
Ellis’ testimony can be fairly read as indicating that
Carroll Hollow Road had narrowed at the site of the accident
going back to the time that it was originally laid out as a
gravel road. The paving of the road, including the re-paving in
1982, “ha[dn’t] widened it.” This testimony tends to establish
that Carroll Hollow Road as originally laid out, and as
subsequently paved and re-paved prior to the accident, narrowed
at this site from 18 feet to 16 feet, 4 inches. Because this
dangerous condition, exacerbated by a lack of cautionary signage,
14 was created by the County, we hold that the County is charged
with notice of it. See Glover, 713 S.W.2d at 76.
The dissent points out, as did we, that the trial court
did not predicate its finding of notice on a sub-finding that the
County had constructed Carroll Hollow Road in a “defective,
unsafe, or dangerous condition.” See T.C.A. § 29-20-203(a).
While this is true, it is not an impediment to our decision in
this case. We are “called upon to pass upon the correctness of
the result reached in the [t]rial [c]ourt, not necessarily the
reasoning employed to reach the result.” Shelter Insurance
Companies v. Hann, 921 S.W.2d 194, 202 (Tenn.Ct.App. 1995)
(citing Kelly v. Kelly, 679 S.W.2d 458 (Tenn.Ct.App. 1984)).
Under Rule 36, T.R.A.P., we are directed to “grant the relief on
the law and facts to which the party is entitled or the
proceeding otherwise requires.” The issue of notice to the
County was obviously before the trial court. If we find that the
evidence preponderates in favor of a finding of notice, we are
compelled to grant Cox the relief dictated by such a finding,
regardless of whether we agree with the reasoning employed by the
trial court in reaching its ultimate conclusion of notice.
The dissent seems to take the following path en route
to finding that the evidence preponderates against a finding that
the County knew or is chargeable with knowledge of the dangerous
condition -- a dangerous condition that the dissent readily
acknowledges. First, the dissent suggests a theory of defense in
opposition to a finding of notice, i.e., that the “missing” 20
inches of pavement was once there, but is no longer there because
15 it broke off and fell down the hillside immediately adjacent to
the road. It then searches the record for evidence to
substantiate this theory of defense, but concedes that “[i]t is
impossible to tell from Dr. Sissom’s testimony, or anything else
in this record before us, to what extent the pavement had
crumbled, sunk, and deteriorated from erosion.” Despite this
lack of evidence, the dissent proceeds to find that the evidence
preponderates against a finding that the County had the requisite
notice. In effect, it takes an unknown -- how much, if any, of
the “missing” 20 inches of pavement fell off -- and concludes
that this unknown, this possibility as it were, is sufficient to
offset the positive testimony of the former Anderson County Road
Superintendent indicating that the road as originally laid out
and as later paved was accomplished in such a way as to present
the narrowing roadway that we all agree was a dangerous
condition. In our judgment, the record supports a finding that
the 20 inches of pavement was never there and that is why it is
“missing.” When there is a reasonable explanation for the
narrowing, why should we engage in speculation to upset the trial
court’s judgment of liability under the GTLA?
There is no evidence in the record, direct or
circumstantial, that the 20 inches of pavement width was once
there, but, at some unknown time in the past, mysteriously
disappeared, apparently down the side of the hill. There was no
testimony at trial establishing that any portion of the pavement
had ever broken off, i.e., become disconnected from the roadway.
Furthermore, no one testified that sections of asphalt pavement
were found on or at the bottom of the hillside slope. The
16 photographs in the record reflect a relatively straight edge of
pavement at the point where the vehicle’s right front wheel left
the paved area, rather than the jagged edge that might be
expected from the loss of some length of 20 inches of pavement
width.
There was no testimony from Dr. Sissom to the effect
that any pavement had broken off. His testimony and the
photographs in the record simply indicate that the erosion found
by him had caused roughly parallel lines to appear in the edge of
the asphalt pavement, a condition that, in turn, caused the edge
of the pavement to slope to the right. It is obvious, from the
context of his testimony, that this is the condition that he was
describing when he said the pavement edge was “crumbling.” To
say that the pavement at its edge is cracked and “sloping” is not
the same as saying that some part of it has broken off.
We find nothing to support the dissent’s position with
respect to notice; certainly, in our judgment, there is not
enough to compel a finding of a preponderance.
IV.
In summary, the evidence does not preponderate against
the trial court’s basic finding, i.e., that the road was in a
“defective, unsafe, or dangerous condition.” Moreover, the
County is charged with notice because the road as originally
constructed and as originally paved and re-paved over time, all
prior to this accident, was in a dangerous condition. Thus, we
17 find and hold that the County is liable to Cox pursuant to the
waiver of immunity found in T.C.A. § 29-20-203.7
V.
Next, the County argues that the trial court’s
apportionment of fault –- 70% to Howard and 30% to the County –-
is erroneous. The County contends that such an apportionment is
not supported by the evidence and that the trial court should
have apportioned 100% of the fault to Howard.
A trial court has considerable latitude in allocating
fault between or among culpable parties. Wright v. City of
Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995). We review a trial
court’s allocation of fault with a presumption of correctness,
unless the preponderance of the evidence indicates that the trial
court’s allocation was “clearly erroneous.” Id.; see also Rule
13(d), T.R.A.P.
Dr. Sissom’s testimony establishes that there were two
causes of this accident: the negligent driving of Howard and the
unsafe condition of the road. Upon reviewing all of the evidence
presented to the trial court, we cannot say that the
preponderance of the evidence is such as to compel a finding by
us that the trial court’s allocation of 30% of the fault to the
County is “clearly erroneous.” Wright, 898 S.W.2d at 181.
7 Because we have determined that immunity is removed under T.C.A. § 29- 20-203, we do not deem it necessary to reach the parties’ arguments concerning the applicability of T.C.A. § 29-20-205.
18 VI.
The County also appeals the trial court’s award of
discretionary costs to Cox. The County argues that an award of
discretionary costs cannot be combined with an award of
compensatory damages, if to do so causes the total award to the
plaintiff to exceed the $130,000 limit set forth in T.C.A. § 29-
20-404(a). That statutory provision prohibits a judgment against
a governmental entity “in excess of the limits of liability set
forth in [T.C.A.] § 29-20-403,” i.e., $130,000. We find and hold
that by awarding Cox discretionary costs in addition to
compensatory damages of $130,000, the trial court violated
T.C.A. § 29-20-404(a). See Erwin v. Rose, 980 S.W.2d 203, 209-10
(Tenn.Ct.App. 1998). In Erwin, we reversed an award of post-
judgment interest because when that award was added to the award
of compensatory damages, the total judgment exceeded the $130,000
limit. We held in Erwin that the add-on for post-judgment
interest impermissibly caused the judgment to exceed the
statutory maximum of $130,000. See id. We find that the
rationale of Erwin also applies to the facts of this case. Here,
the award of discretionary costs, when added to the award of
compensatory damages, creates a judgment in favor of Cox that
exceeds the $130,000 limit. There is nothing in T.C.A. §§ 29-20-
404(a) and 29-20-403 to indicate that an award of discretionary
costs is an exception to the absolutely-stated monetary
limitation of the GTLA. Whether an award of discretionary costs
and/or post-judgment interest should be an award separate and
apart from, and not subject to the $130,000 limitation of the
GTLA, is a policy decision properly left to the judgment of the
19 General Assembly and not to the courts. As we understand the
relevant statutes, the legislature has decided that all awards to
the plaintiff are subject to the one limitation of $130,000.
By awarding discretionary costs to Cox, the trial court
held the County “liable in excess of the limits of liability set
forth in [T.C.A.] § 29-20-403.” See id at 210 (quoting T.C.A. §
29-20-404(a)). This it could not do. We therefore reverse the
award of discretionary costs in this case.
20 VII.
For the foregoing reasons, the judgment of the trial
court awarding compensatory damages of $130,000 to Cox is
affirmed. The judgment of the trial court awarding discretionary
costs to Cox is reversed. Costs on appeal are taxed to the
appellants. This case is remanded to the trial court for the
entry of an appropriate order, consistent with this opinion, and
for the enforcement of the judgment of $130,000 against the
County and for collection of costs assessed below, all pursuant
to applicable law.
__________________________ Charles D. Susano, Jr., J.
CONCUR:
____________________________ Houston M. Goddard, P.J.
(Separate Dissenting Opinion) D. Michael Swiney, J.