Richard Deberry v. Lexington Electric System

• Court: Court of Appeals of Tennessee
• Decided: September 15, 1997
• Docket: 02A01-9610-CV-00257
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

RICHARD LANE DEBERRY ) ) Plaintiff/Appellant, ) Henderson Circuit No. 90-057 ) VS. ) Appeal No. 02A01-9610-CV-00257 ) LEXINGTON ELECTRIC SYSTEM, CENTRAL STATE BANK, and the CITY OF LEXINGTON, TENNESSEE, ) ) ) FILED ) September 15, 1997 Defendants/Appellees. ) Cecil Crowson, Jr. Appellate C ourt Clerk APPEAL FROM THE CIRCUIT COURT OF HENDERSON COUNTY AT LEXINGTON, TENNESSEE THE HONORABLE CHARLES McPHERSON, JUDGE, BY DESIGNATION

WILLIAM M. JETER TIM EDWARDS GLASSMAN, JETER, EDWARDS AND WADE, P.C. Memphis, Tennessee Attorneys for Appellant

LARRY L. CASH STRANG, FLETCHER, CARRIGER, WALKER, HODGE & SMITH, PLLC Chattanooga, Tennessee KEN WALKER WALKER LAW OFFICE Lexington, Tennessee Attorneys for Appellees

AFFIRMED

ALAN E. HIGHERS, J.

CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

DAVID R. FARMER, J. In this governmental tort liability action, Plaintiff Richard Lane DeBerry appeals the

trial court’s judgment which limited DeBerry’s recovery to $130,000, the maximum amount

awardable under the Tennessee Governmental Tort Liability Act (GTLA). Defendant/

Appellee Lexington Electric System (LES) cross-appeals, challenging the merits of the trial

court’s finding of liability against LES. We affirm.

In April 1990, DeBerry was seriously injured when he accidentally came into contact

with a high-voltage power line which had been installed and maintained by LES. DeBerry

was a supervisor and job estimator for DeBerry Roofing Company. At the time of his injury,

DeBerry was working on the roof of Central State Bank in Lexington, Tennessee. After

lunch one day, DeBerry noticed that a ten-foot-long termination bar along the roof parapet

was “turned around backwards,” so DeBerry picked up the bar and flipped it over. While

DeBerry was in the process of flipping the aluminum bar, the bar came into contact with

the power line. DeBerry’s injuries from the electric shock included the loss of one arm

below the elbow and the loss of part of one foot.

Prior to the accident, DeBerry knew of the existence of the power line on the side

of the building, and DeBerry had worked around high-voltage power lines before. DeBerry

had observed the line a few months previously when he inspected the roof to give a job

estimate. DeBerry assumed that the power line was a safe distance from the edge of the

roof, and, in any event, he planned to bring up materials from the back of the building away

from the power line. Accordingly, DeBerry did not consider the power line to be a threat

to workers, and he did not contact LES prior to beginning the roofing job.

The evidence at trial established that the power line was erected in 1939. Between

1979 and 1982, the bank building underwent renovations, including the addition of the

parapet to the roof of the building. During the course of the renovations, LES offered to

insulate the power line to protect people doing work on the building, but the contractor

performing the renovations did not accept LES’s offer. The addition of the parapet brought

the roof of the building at least a foot closer to the power line. LES last performed work on

2 the power line in 1980 when a line pole was replaced. The line poles were inspected in

1981, and the power line itself was inspected in 1988 or 1989, approximately one or two

years before DeBerry’s accident.

Shortly after DeBerry’s accident, measurements revealed that the horizontal

clearance between the power line and the building was 3'3½” and that the vertical

clearance was 7'3". The horizontal clearance was obtained by measuring from the power

line to the nearest point on the plane formed by the side of the building. Similarly, the

vertical clearance was obtained by measuring from the power line to the nearest point on

the plane formed by the roof of the building. The actual distance between the power line

and the closest point on the roof was 7'11½”. Witnesses observed that the line pole

nearest the bank building was leaning toward the building, moving the power line at least

two feet closer to the building. An expert witness for DeBerry testified that this condition

probably would have taken longer than two years to develop and, thus, should have been

identified by LES during its inspection in 1988 or 1989.

At trial, a dispute arose as to which version of the National Electric Safety

Code (NESC) applied and as to whether or not LES had a continuing duty to upgrade its

power lines to conform to the current code version. At the time the power line was installed

in 1939, the line apparently conformed to then applicable codes and standards. Over the

years, however, the NESC was revised to expand the horizontal and vertical clearances

required between power lines and nearby buildings. The code in effect in 1960 required

a horizontal clearance of three feet. A newer version of the NESC, which took effect in

1977, required a horizontal clearance of five feet for areas considered accessible to

pedestrians, such as the bank building roof which, according to the testimony, was

accessible by a permanently installed ladder leading up to the roof.

LES’s expert witness, Francis M. Wells, opined that the 1960 version of the NESC

applied to the power line because this was the code version in effect the last time

substantial work was done on the power line. This work occurred in 1971 when the power

3 line was upgraded. Wells stated that the pole replacement work done in 1980 would not

have required LES to upgrade the line to conform to the 1977 code version because the

pole replacement was not considered a substantial alteration to the line. Thus, LES took

the position that it had no duty to upgrade its line unless it was rebuilding the line or making

substantial improvements thereto.

In contrast, DeBerry’s expert witness, John T. Butters, testified that the 1977 NESC

applied to the power line at the time of DeBerry’s accident. The 1977 code applied to all

new installations, alterations, reconstructions, and extensions of power lines. In Butters’

opinion, the NESC imposed a duty on LES to bring its power lines into compliance with

later code versions if LES’s alterations, modifications, or inspections of the lines revealed

any areas of noncompliance. Specifically, in altering or inspecting its power lines, LES had

a duty to review the lines’ proximities to nearby structures. In accordance with this

interpretation, Butters testified that the pole replacement work performed in 1981 would

have required LES to bring the power line into compliance with the 1977 code. Inasmuch

as the 1977 code required a horizontal clearance of five feet between the power line and

the bank building, the power line in question, which had a horizontal clearance of only

3'3½”, did not comply with the NESC.

Based on the foregoing evidence, the trial court entered a memorandum opinion in

which it ruled in favor of DeBerry on most of the issues.1 Specifically, the trial court found

that the 1977 version of the NESC applied in this case; that the power line did not comply

with the NESC’s clearance requirements; that LES had both actual and constructive notice

of the dangerous condition caused by its power line; and that LES was negligent in failing

to maintain the line. Applying comparative negligence principles, the trial court determined

that LES’s comparative fault was seventy percent (70%) and that DeBerry’s fault was thirty

percent (30%). The trial court found DeBerry’s damages to be $650,000, but concluded

that DeBerry’s recovery was limited by the statutory amount of $130,000.

1 DeB erry’s com plaint also nam ed the City of Lexington and Ce ntral State Bank as defendants; how ever, both of the se d efenda nts w ere d ism issed from the law suit prior to trial.

4 On appeal, DeBerry presents the following issue for this court’s review:

Whether a recovery under the [GTLA] is limited to the sum of $130,000.00 when the governmental entity has purchased insurance in an amount sufficient to fund the full amount of the judgment.

On cross-appeal, LES has raised the following additional issues:

A. [Whether the] Court Erred in Denying the Motion to Dismiss made by LES at the Close of Plaintiff’s Case in Chief.

B. [Whether the] Plaintiff Lane DeBerry is guilty of comparative fault equal to or greater than the fault of LES.

We first address LES’s substantive issues regarding its liability for DeBerry’s

injuries. Regarding its first issue, LES argues that the trial court erred in denying its motion

to dismiss because DeBerry failed to present evidence that LES had actual or constructive

notice of a dangerous or defective condition as required by section 29-20-204 of the GTLA

and, alternatively, because LES was immune from suit under section 29-20-205(4) of the

GTLA.

The GTLA removes a governmental entity’s immunity from suit “for any injury

caused by the dangerous or defective condition of any public building, structure, dam,

reservoir or other public improvement owned and controlled by such governmental entity.”

T.C.A. § 29-20-204(a) (1980). In order to prevail under this section, the plaintiff must prove

that the governmental entity had “constructive and/or actual notice” of the dangerous or

defective condition. T.C.A. § 29-20-204(b) (1980); see, e.g., Lee v. City of Cleveland, 859

S.W.2d 347 (Tenn. App. 1993); Smith v. City of Covington, 734 S.W.2d 327 (Tenn. App.

1985), aff’d, 1987 WL 12494 (Tenn. June 22, 1987).

In the present case, we conclude that DeBerry presented sufficient evidence from

which the trial court could have found that LES had actual and/or constructive notice of the

dangerous condition of the power line. See McGaughy v. City of Memphis, 823 S.W.2d

209, 215 (Tenn. App. 1991). The evidence showed that LES inspected the line in 1988

5 or 1989, when it should have been apparent that one of the nearby poles supporting the

power line was leaning toward the bank building and that the resulting horizontal clearance

between the power line and the building was only about three feet. LES’s knowledge of

this dangerous condition was further supported by the testimony of LES’s own witness,

who indicated that, when the bank building was remodeled sometime between 1979 and

1982, LES offered to insulate the line to protect people working on the building.

We also conclude that the trial court properly rejected LES’s claim of immunity

under section 29-20-205 of the GTLA. Section 29-20-205, which generally removes a

governmental entity’s immunity from suit for injuries caused by its negligence, does not

remove immunity if the injury “[a]rises out of a failure to make an inspection, or by reason

of making an inadequate or negligent inspection of any property.” T.C.A. § 29-20-205(4)

(1980); see, e.g., Johnson v. EMPE, Inc., 837 S.W.2d 62 (Tenn. App. 1992) (dismissing

cause of action which was based on city’s failure to inspect sewer project); Mowdy v. Kelly,

667 S.W.2d 489 (Tenn. App. 1983) (dismissing action which was based on county’s failure

to inspect bridge). Citing section 29-20-205(4), LES contends that its immunity was not

removed in this case because DeBerry’s cause of action was predicated on LES’s

negligent inspection of the power line.

In our view, LES’s argument misconstrues the nature of the evidence presented by

DeBerry. The evidence that LES inspected the power line in 1988 or 1989 was introduced,

not to show that LES failed to inspect the line or that it negligently inspected the line, but

to show that LES had actual or constructive notice of the line’s dangerous condition by

virtue of its inspection. Stated another way, DeBerry’s theory of recovery in this case was

based, not on evidence that LES performed a negligent inspection of the power line, but

on evidence that LES conducted an adequate inspection of the line in 1988 or 1989, at

which time it observed the line’s dangerously close proximity to the bank building but failed

to take action to correct the danger. Moreover, we note that evidence of the 1988 or 1989

inspection was not the only evidence introduced to support DeBerry’s theory of actual or

6 constructive notice because, as previously indicated, other evidence established that LES

had offered to insulate the power line sometime between 1979 and 1982.

As for LES’s second issue, LES contends that DeBerry was barred from recovery

because his own negligence was equal to or greater than that of LES and because

DeBerry was guilty of negligence per se when he violated the terms of Tennessee Code

Annotated sections 68-103-102 and 68-103-105. Inasmuch as this case was tried by the

court below sitting without a jury, this court’s review on appeal is governed by Tennessee

Rule of Appellate Procedure 13(d), which directs us to review the case de novo. Roberts v.

Robertson County Bd. of Educ., 692 S.W.2d 863, 865 (Tenn. App. 1985); Haverlah v.

Memphis Aviation, Inc., 674 S.W.2d 297, 300 (Tenn. App. 1984); T.R.A.P. 13(d). In

conducting a de novo review of the record below, however, this court must presume that

the trial court’s findings of fact are correct. Under this standard of review, we must affirm

the trial court’s decision unless the trial court committed an error of law affecting the result

or unless the evidence preponderates against the trial court’s findings. Roberts, 692

S.W.2d at 865.

Applying the foregoing standard, we affirm the trial court’s decision establishing

seventy percent (70%) as LES’s comparative fault for DeBerry’s injuries. LES contends

that DeBerry was negligent because he knew of the existence of the power line, was aware

of the danger to anyone who came into contact with the line, and failed to exercise due

care to avoid contact with the line. We conclude, however, that the trial court properly

considered these arguments when it assigned thirty percent (30%) as DeBerry’s

comparative fault for the accident. We further conclude that the decision in City of

Chattanooga v. Shackleford, 298 S.W.2d 743 (Tenn. App. 1956), cited by LES, is

distinguishable from the present case because Shackleford was decided at a time when

any contributory negligence on the part of the plaintiff barred him from recovery. Id. at 746.

7 We likewise decline to disturb the trial court’s determination that the provisions of

section 68-103-102 and 68-103-105 have no application to this case. Those sections

provide that

No person, firm, or corporation, or agent of same, shall require or permit any employee to perform any function in proximity to high-voltage lines; . . . unless and until danger from accidental contact with such high-voltage lines has been effectively guarded against in the manner hereinafter prescribed.

and that

When any operations are to be performed, tools or materials are to be handled, or equipment is to be moved or operated within six feet (6') of any high-voltage line, the person or persons responsible for the work to be done shall promptly notify the operator of the high-voltage line of the work to be performed, . . . before proceeding with any work which would impair the aforementioned clearance.

T.C.A. §§ 68-103-102, 68-103-105 (1983). LES contends that these sections imposed a

duty upon DeBerry to contact LES before beginning any roofing work on the bank building.

This provision was not intended to relieve a company transmitting deadly energy

through uninsulated wires from the consequences of its negligence, but it was designed

merely as an additional safety measure. Martin v. Town of McMinnville, 369 S.W.2d 902,

906 (Tenn. App. 1962). DeBerry did not anticipate that operations or equipment would be

within six feet of a high-voltage line in that he had planned to bring up materials from the

back of the building away from the power line. We are in agreement with the trial court that

these sections are inapplicable to the facts of this case.

Having addressed the substantive issues raised by LES on cross-appeal, we now

turn to the initial issue presented by DeBerry’s appeal, that of whether the trial court erred

in limiting DeBerry’s recovery in this case to $130,000 when LES had purchased insurance

coverage in an amount sufficient to fund the $650,000 in damages as found by the trial

court. In accordance with this court’s decision in Coburn v. City of Dyersburg, 774 S.W.2d

610 (Tenn. App. 1989), we answer this question in the negative and affirm the trial court’s

judgment.

8 Section 29-20-403 of the GTLA establishes minimum limits of $130,000 “for bodily

injury or death of any one (1) person in any one (1) accident, occurrence or act.” T.C.A.

§ 29-20-403(b)(2)(B) (Supp. 1989). Section 29-20-311 prohibits any judgment or award

in excess of the minimum amounts of insurance coverage specified in section 29-20-403,

“unless such governmental entity has secured insurance coverage in excess of said

minimum requirements.” T.C.A. § 29-20-311 (1980).

The government’s procurement of excess insurance coverage, however, does not

end the inquiry. Before a plaintiff may recover a judgment in excess of the minimum limits,

section 29-20-404 imposes another requirement: The governmental entity must have

expressly waived the minimum limits of liability and such waiver must be contained in the

entity’s insurance policy. As pertinent, section 29-20-404 provides:

A governmental entity or the insurer of such governmental entity shall not be held liable for any claim arising under state law for which the governmental entity has immunity under the provisions of this chapter unless the governmental entity has expressly waived such immunity. A governmental entity or the insurer of such governmental entity shall not be held liable for any judgment in excess of the limits of liability set forth in § 29-20-403, unless the governmental entity has expressly waived such limits. The waiver of such immunity or such limits of liability by a governmental entity shall only be valid if such waiver is expressly contained in the provisions or endorsement of a policy or contract of insurance authorized by this chapter to cover its liability under this chapter.

T.C.A. § 29-20-404(a) (Supp. 1989) (emphasis added).

In Coburn v. City of Dyersburg, 774 S.W.2d 610 (Tenn. App. 1989), this court

construed the foregoing sections of the GTLA:

The logical and reasonable reading of these three Code sections seems to us to be as follows: For the bodily injury or death of any one person in any one accident, § 29-20-403 establishes minimum limits . . . ; a judgment rendered against a governmental entity may not exceed the minimum amounts of insurance coverage specified in § 29-20-403 unless the insurance coverage is in excess of the minimum requirements; and finally, the governmental entity or its insurer will not be held liable for any judgment in excess of the § 29-20-403 limits of liability unless it has waived those limits in accordance with the provisions of § 29-20-404.

9 Coburn, 774 S.W.2d at 613. Inasmuch as the City of Dyersburg and Dyersburg Electric

System had not waived their limits of liability, this court held that the plaintiff’s recovery was

limited to the minimum limits set forth in section 29-20-403.

In the present case, it was undisputed that LES had secured insurance coverage

in excess of the minimum requirements of section 29-20-403. The trial court found,

however, and the parties do not dispute, that the insurance policies in question contained

no specific language waiving LES’s limits of liability. We conclude, therefore, that the

resolution of this issue is governed by Coburn and that DeBerry’s recovery was limited to

the minimum requirements set forth in section 29-20-403. Coburn, 774 S.W.2d at 613;

accord Goff v. Howell, No. 01A01-9401-CV-00024, 1994 WL 317542, at *2 (Tenn. App.

July 6, 1994) (“To waive either the immunity or the limits of liability the governmental entity

must do so expressly, and the waiver of either will be valid only if it is expressly contained

in a policy of insurance covering the liability.”); REN Corp. v. Metropolitan Nashville Airport

Auth., No. 01A01-9104-CV-00123, 1992 WL 17896, at *2 (Tenn. App. Jan. 29, 1992)

(“[T]he existence of insurance coverage in excess of [the minimum] limits does not

constitute an express waiver of immunity.”), perm. app. denied (Tenn. May 4, 1992).

The judgment of the trial court is hereby affirmed. Costs of this appeal are taxed

one-half to the Plaintiff and one-half to the Defendant, for which execution may issue if

necessary.

HIGHERS, J.

10 CRAWFORD, P.J., W.S.

FARMER, J.