514 S.W.3d 732
Tenn. Ct. App.2016Background
- Plaintiff Frank K. Jackson (substituted by C. Wesley Fowler as administrator after Jackson's death) sued MLGW and the City after Jackson fell into a sidewalk water‑meter hole missing its cover, seeking $500,000.
- MLGW moved for summary judgment, asserting it had no actual or constructive notice that the specific meter cover was missing and that the cover was removed by a third party.
- Plaintiff produced evidence (admissions/deposition excerpts) that MLGW knew its meter covers were often stolen, could be overridden with a finger, and that MLGW did not perform sidewalk inspections for uncovered meters.
- The trial court granted summary judgment to MLGW, holding MLGW lacked actual or constructive notice of the particular missing cover and that plaintiff failed to show the condition existed long enough or was a common occurrence.
- On appeal, the court affirmed dismissal of claims under GTLA §§ 29‑20‑203/204 (dangerous/defective condition) but vacated dismissal of a design/decision claim under § 29‑20‑205 (negligent act/omission), remanding for consideration whether the discretionary‑function defense applies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MLGW had actual or constructive notice of the specific missing meter cover under GTLA §§ 29‑20‑203/204 | MLGW knew meter covers were routinely stolen and used insecure covers citywide, so constructive/actual notice exists | No notice of the particular uncovered meter; no evidence cover was missing long enough or that removals were frequent in the immediate area | Court: No actual/constructive notice as to the particular meter; summary judgment affirmed for §§ 29‑20‑203/204 |
| Whether plaintiff’s claim of negligent design/placement falls under GTLA § 29‑20‑205 and survives summary judgment | Claim is one of negligent decision/design (use/placement of insecure covers), not merely a premises defect, so § 29‑20‑205 applies and immunity may be removed | If the claim implicates discretionary planning decisions or inspection failures, immunity remains under § 29‑20‑205 | Court: Claim is properly analyzed under § 29‑20‑205; trial court’s grant of summary judgment on that claim vacated and remanded to decide discretionary‑function applicability |
| Whether MLGW waived the discretionary‑function defense by not raising it below | N/A (argued waiver on appeal) | MLGW raised a design‑related/discretionary‑function argument in trial court pleadings and plaintiff responded | Court: No waiver; discretionary‑function was litigated below |
| Whether the missing cover constituted a common occurrence to establish constructive notice | Plaintiff: thefts common enough to constitute a recurring condition | MLGW: no evidence covers near the specific site were regularly removed; plaintiff even walked by daily without seeing it missing | Court: Plaintiff failed to show removals in the same approximate location with sufficient frequency; common‑occurrence theory fails |
Key Cases Cited
- Kirby v. Macon Cnty., 892 S.W.2d 403 (Tenn. 1994) (distinguishes owner‑created defects from third‑party removal; notice must relate to the particular structure)
- Parker v. Holiday Hosp. Franchising, Inc., 446 S.W.3d 341 (Tenn. 2014) (constructive notice shown by lapse of time or recurring condition)
- Bowers v. City of Chattanooga, 826 S.W.2d 427 (Tenn. 1992) (adopts planning‑operational test for discretionary‑function immunity)
- Davis v. City of Cleveland, 709 S.W.2d 613 (Tenn. Ct. App. 1986) (design/decision claims properly analyzed under GTLA § 29‑20‑205 rather than premises statutes)
- Halliburton v. Town of Halls, 295 S.W.3d 636 (Tenn. Ct. App. 2008) (government may have constructive notice where it built the structure)