*1 evidence to record contains no employee show that the from suffered
diagnosed lung dis “chronic obstructive prior employment
ease” Inc., but, Drilling Company, Dr. Johnson speaks though of “aggravation” as Swann appellee prior to his did have the disease employment. attempt was No made examination of Dr. to determine Swann lung
whether or the chronic obstructive re by appellee closely disease suffered was lated named to silicosis one other occupational diseases. case, supra,
As done in Robinson judgment we reverse remand County case to the Circuit Court of Knox new trial. adjudged All costs shall be employee.
FONES, COOPER, HENRY C. T., HARBISON, concur. J ux., Appellants, et
Truman JOHNSON v. COMPANY, INC. CONSTRUCTION OMAN Appellees. al., et Supreme of Tennessee.
Jan. 1975. *2 Conners, Harris, Jr., Taylor T. M. John Nashville,
Jr., appellants. for Miller, Snedeker, Larry Michael Edward Jr., Nashville, Kelly, appellees. S. interrupted by reason of construction OPINION highway. an interstate HARBISON, the construction of interstate was Justice. pursuant a written performed wrongful death This is action company between that contract Truman brought by Mr. and Mrs. Johnson State Tennessee. *3 their Ken the son death of Johnson the 1972as on October which occurred complaint alleges pursuant that to The The acci- single a car accident. construction, result of re- cоntract of Oman was the Hill, Berry City of dent occurred quired guardrail erect 40-foot or bar- to a Tennessee, corporation. municipal a point interruption rier at of Biloxi the in the action are the as defendants Named Avenue and cause to be erected at or on City Berry together with the Met- Hill sign stop a guardrail the said so as to ropolitan and Government of Nashville motorists of the approaching road- warn County, Tennessee and Oman Davidson way construction. Company.
Construction the munici- alleged It is further that two by The suit was dismissed the Cirucit corporations required and were to did pal by on each the mu- motions filed roadways in to David- undertake maintain nicipal corporations pursuant Rule 12 of proper condition County in a safe and son Procedure, Tennessee Rules of Civil the in motorists of particular “to warn and and as to defendant Oman Construction roadway by dangers and hazards Company, Inc. the suit was dismissed on proper adequate and road- erection of the pursu- summary judgment motion for filed signs.” complaint alleges that way The ant to Rule 56. required in to be con- signs” were “said estab- formity minimum standards with the municipal corporations, As to the two Traffic on by the Manual Uniform lished therefore, the is this Court case before Roadways and on Streets Devices Control complaint. only upon of the Department Highways adopted by the respect Oman Construction Com- With of Tennessee. State plaintiff pro- pany, confronted with is that of Rule 56.05 to the effect visions exhib- are no documents There contract summary judgment a is motion for any when nor is there oth- complaint, ited affidavits, an ad- supported made and said specific reference to man- er or more al- party may upon the mere not rest ual, thereof, delineating verse portion any or The pleading. of his legations or denials signs or referred to type kind of response, by that affidavits rule states his statutory refer- plaintiffs. There are no otherwise, specific facts must set forth complaint. or in entire ences showing genuine is issue of that there a prior complaint alleges that and The on Compa- fact for trial. Oman 1972 Oman had the date October and exhibits ny filed certain affidavits interrupted Biloxi Avenue had erected response was made on behalf which no single consisting of a guard-type barrier a plaintiff. long feet strip approximately 40 metal complaint state allegations of the
The of the The the terminus avenue. across life plaintiffs son of the lost alleges guardrail that the metal that said guard- drove an automobile into in striped, painted, when he illuminated was in Biloxi Avenue at terminus of any designed give rail warn- other fashion alleged It is that Berry Hill. its The com- ings to motorists of location. been a had previously negligent- Biloxi Avenue that had plaint also states street, through date but on as re- stop sign ly failed to construct terminated and accident been the street at barricade. by its contract said quired properly marked, particular specification any ly Again there is no requirement foggy statutory reflect its location on dark and or contractual striped, evenings; sign and there no erected guardrail painted illumi- nated, and there is no statement at barricade.” stop sign called for the contract was It is that these acts omis- specified types manual one of the part sions the defendants com- above referred to. so bined conсurred as to result plaintiffs. son alleges that the two mu- death of the nicipal corporations “had caused to be feet
erected several hundred east municipal corporations, As to the small, barricade, inadequate and ill- plaintiffs said rely primar we conclude that the placed type sign did not af- ily upon dead-end which law negligence.* common warning adequate proper to the admitted, ford however, by plaintiffs *4 traveling ahead.”. public of the barricade not given written notice was to of either alleged governmental It is that neither municipal corporations the in accordance body anything did further to motor- warn provisions with the terms and of T.C.A. § barricade, ists of the of de- location the provides This 6-1003. statute suit no spite the governmental fact that said bod- brought against any shall be municipal cor ies knew havе known of the lo- poration or should personal of injury on account or cation of and that it was a the barricade property damage resulting from a defective hazard, being constructed in not accord- negligent any street, or alley, condition in requirements. ance with the contractual It highway sidewalk or of municipality the par- is that the barricade would be written is given unless notice within 90 ticularly dangerous foggy оn dark and days injury. after give the Failure to nights. prescribed expressly notice is a de made to any liability fense might which other Plaintiffs allege early further that in the exist wise “on account of the defective or 30, 1972, morning hours of October their negligent street, condition of alley, said driving son was his automobile in an east- ” sidewalk, highway or . . . erly It direction Biloxi Avenue. is al- leged that the night was dark the at- municipal corporations, of the One mosphere quite foggy in The the area. son Berry Hill, pled lack of notice plaintiffs barricade, damag- struck the under this statute as defense to the ac- ing the of his It is al- front automobile. present case, tion. The in the obstruction leged that the decedent suffered immediate however, one, permanent was a erected injury abdomen, to his chest and and that a contract Oman under with State. bleeding. he later died from internal municipal corporation Neither erected the con- barricade or contracted for portion complaint concluding The of the We, therefore, cerning do not deem the it. charges joint liability the defendants with to be a “defec- existence of barricade comply respective to “with their failure negligent or of said street” tive condition traveling public duties warn the purview within the of T.C.A. 6-1003. § interruрted Biloxi hazard of Avenue.” Accordingly that failure we hold complaint charges: Specifically, the plaintiffs give notice either written corporations signs municipal inad- “Approach were absent and of the the exis- ; equate not is the barricade was sufficient- tence the barricade not defense to * suggestion is in There some the briefs Rule of the Rules Civil 8.05 Tennessee plaintiffs case, disposition claim a breach of T.C.A. 54-508 Our § Procedure. how- regarding signs. view, ever, if the traffic In our com- would be the same even statutory plaint charge charged explicitly is insufficient violation of the statute light explicit requirements violation in above cited. necessary part willingness it “indicates a action we do deem legislature sovereign raised in the to alter the law of questions to discuss the other ” scope immunity . . . parties concerning
briefs of аpplicability of 6-1003. or T.C.A. § statute, however, per- The new effect option liability cit- mits local as to the pertinent allegations of the ies, political counties and subdivi- other municipal corpora against purports It sions of remove state. in fail charge negligence tions them permits immunity a number of but areas proper traffic ing to erect and maintain “exempt un- government a local itself” adequatе prop or to have signs, control der certain conditions. in the is er traffic control devices area. however, dealing as jurisdiction, regard this do not this statute settled in We well compre- signs subject complete in a of traffic control with the location types signs to take hensive manner. are reluctant selection of We functions, area, however, judicial with- governmental erected are action oppor- enjoy gov Assembly an municipal corporations giving out which General comprehensive and immunity. tunity Her to establish a ernmental See Sullivan v. governing bert, procedure 453 uniform tort claims 225 Tenn. 473 S.W.2d po- exception cities, and other this rule which suits counties (1971). One agencies lia their recognized has been in the cases litical subdivisions or *5 plaintiff alleges courts of the state. bility duly lie constituted may where a “virtual sufficient constitute facts Further, insistence in there is no present trap”, allegations but the immunity of present the doctrine case that that complaint bring are insufficient by the Court. For abrogated should operation. Her into See Sullivan v. rule it stated, appropri- deem we do not reasons bert, supra. time, and it take action at this ate to such accordingly we affirm results that regard This Court does dismissing court in judgment the trial sovereign immunity favor thе doctrine of Metropolitan complaint Gov- as to county govern municipal applied as City Berry Hill defendant ernment. The rapid other trend of ments. note the We solely upon predicated its motion to dismiss abrogation jurisdictions toward American notice, as of written ground lack governmen substantial modification out, upon ground pointed and not above Second, immunity. Restatement tal See Ac- immunity generally. governmental 19, Torts, Tentative Draft No. Law of § dismiss on cordingly its motion Torts, Prosser, seq. Law of (1973); et 895 and the it overruled ground stated adhering 1964). In (3d ed. 1010-1013 for further and remanded case is reversed mi among the Tennessee is now the rule defendant. proceedings as that nority states. Oman the defendant respect With are com- issues Company, the as an regards This Court the doctrine an dif- more is rendered problem plex and our and as at variancе with modern achronism only the us before there are note, however, ficult because concepts justice. We one complaint allegations Assembly enacted the that General accompanying an affidavit Act, hand and Liability T.C.A. Government Tort § summary a motion for support of 1, letter January 1974. seq., et effective 23-3301 support In hand. on the other judgment time of in force at the This act was not judgment, summary motion its litigation. in this As invоlved the accident Inc. filed Company, Oman Construction in the recent pointed the Court out officer, stating corporate Bettis, of a affidavit 512 S. Memphis case of v. company was by done the work 270, act that the new (Tenn.1974), 272 W.2d
787 “pursuant contract, to” the municipal corporations, done its that and there is no company completed question made, the work in contention insofar as we can ascer- 26, 1972, tain, оn October and that on that date responsible that Oman was for the inspected accepted its any work been erection of signs of the traffic control complete by as Highway the Tennessee in the area.
Department Highway and the Federal Ad- support ministration. In affidavit Nevertheless, complaint does there was attached a letter dated Novem- state certain basic facts which stand unde- 8, engineer-man- ber from the project nied in the combined motion to dismiss ager, showing project having as been for summary motion judgment filed inspected, completed accepted on Octo- allegations Oman. These are to the effect ber 1972. barricade, that constructed, as was not properly painted illuminated or as to be so The affidavit of the Oman fur- official motorists, visible to particularly in dark ther states thаt from and after October ness or other driving adverse conditions. Construction, no re- Inc. “had allege does that the acts of responsibility lations with or for the said erecting Oman in thus such a barricade premises, completed its having been proximate negligence, constituted resulting accepted.” The affidavit does not in the death of the decedent. There are squarely allegations meet the of the com- allegations municipal corporations plaint deny allegations and does not involved knew or should have that known question barrier in dangerous barricade was to motorists. striped, was not in any illuminated or other While these expressly are not designed fashion to give warnings to motor- Oman, they inferentially made as to are ists of its location. there a Neither is de- complaint. contained in the There is lack nial that therе stop sign was no on the bar- ing complaint any allegation from the affidavit, however, ricade. The seems to the barricade was in the same condition on us to state the work was done in ac- *6 the date of accident as it when the cordance with the between contract Oman completed Company. Oman by Tennessee, and the State of and the state- however, Apparently, only days four had inspected ment approved that it was and elapsed date inspec between the of formal indicates to us that the the intentions of delivery tion and of the construction work parties contracting had been carried out accident, and, liberally and the date the stated, plaintiff and satisfied. As the has complaint, construing allegations the of the filed no countervailing affidavit or docu- safely from may we think it be inferred mentary evidence to refute the statements allegations the that there had been no such in made the affidavit of the official. Oman course, pre change alteration. as or Of Accordingly allegations we deem the of the stated, developed viously do not a we have complaint to the effect that Oman had not dealing merely record before and are us performed the in work accordancе with its parties. and motions of the by contract to be overcome the affidavit in however, Certainly, it be incumbent would record, and we must view the as case upon plaintiff that there had to show satisfactorily in and one which had Oman in change been no material alteration or performed correctly according its work the barricade between the the condition of specifications. documents contrаct and by date it was delivered accident, plaintiff before the date of Further, charge does not recover from Oman. be entitled to would any statutory Oman with violations. The repect insufficiency allegations with presented question is then sign legal
of the “dead-end” which been not the to whether or pertain erected east of the barricade record as this 788
completion upon acceptancе ing work and its reasonableness of conduct by automatically, the owner and as a mat- the contractor. law, Oman, indepen- discharged ter of an however, opinion, We are of the contractor, liability par- dent from to third rule, discharging independent older ties, negligence that assuming part automatically contractor a matter of as alleged. of Oman can be as established situations, upon acceptance law in all recognized parties pre- is in both that work, his is not better view. In our holdings vious this both Court and the opinion, independent if an is contractor Appeals ap- Court of of Tennessee have guilty negligence performing in his plied independent contrac- the rule way in a it work such could reasona- injuries occurring for tor is not liable bly be third foreseen that the owner or person third after the contrаctor has com- parties personal would in- probably sustain accepted pleted it been the work and has jury as property damage or result of the This, employer. or in the owner condition, negligent independent then the past, been be the has considered to law, not, should contractor as matter of Young, general Evens v. 196 rule. See discharged merely his has be because work 128, 118, 129, Tenn. 264 577 S.W.2d accepted bеen to the owner. delivered (1954); Housing Authority v. Pulaski Indeed, leg- is the tenor the recent Smith, Tenn.App. 213 282 S.W.2d 39 enactment, islative now codified as T.C.A. Hubbuch, (M.S. 1955); Hester v. 26 special provisions seq., making 28-314 et § (E.S.
Tenn.App.
overruled. The cause is reversed insofar as the ac- FONES, COOPER, J.,C. HENRY against plaintiffs tion of the BROCK, JJ., concur. Berry Compa- Hill and Oman Construction concerned, ny, Inc. is for remanded proceedings
further consistent with ap- opinion. of this One-third of the costs peal against plaintiffs, bewill assessed each one-third defendants Hill
City Berry and Oman Construction Company, Inc.
Tennessee, Petitioner,
STATE of v.
FONES, HENRY, J., and C. COOPER BROCK, JJ., concur. Washington THOMPSON, Jr., Dee Respondent. OPINION FOR RE- ON PETITION Supreme of Tennessee. Court HEARING March 1975.
HARBISON, Justice. petition thoughtful A rehearing has appellee, been filed on behalf of the Inc., Company, to which the given careful consideration. Many petition, issues raised however, only upon can be determined fully developed
record more than that be- us, only allega- fore which consists tions of the and a combined mo- summary tion to dismiss and motion for judgment. respect procedural
With to the mat petition rehearing ter mentioned arising out of the case Ford Motor *8 Moulton, Company v. S.W.2d (Tenn.1974), January rule, adopted applicable 1975 has both to this Court and to the Court of Appeals,
covering pending both cases and future
cases, pro which in effect reinstates the cedural rule which was stricken Moulton This rule with the case. deals appeals summary judgment
record on