# FILED
December 31, 1997 Cecil W. Crowson Appellate Cou rt Clerk 

### IN THE SUPREME COURT OF T ENNESSEE

AT NA SHVILLE (HEARD AT COLUMBIA)

TRACY HAWKS and DALE HAWKS, ) FOR PUBLICA TION ) Filed: December 31, 1997 Plaintiffs-Appellees, ) ) SUMNER CIRCUIT v. ) ) Hon. Thomas Goodall, CITY OF WESTMORELAND, ) Judge ) Defendant-Appellant. ) Appeal No. ) 01S01-9704-CV-00083

For Plaintiffs-Appellees : For Defendant-Appellant : Bruce N. Oldham J. Russell Farrar Oldham & Dunning, LLC Deborah R. Sowell Gallatin, Tennessee Farrar & Bates Nashville, Tennessee



## O P I N I O N

COURT OF APPEALS AFFIRMED. DROWOTA, J.1 Oral argu me nts w ere h eard in this case o n October 8, 1997 in Colum bia, Maury Coun ty,Tenne ssee, a s part of th is Court’s S.C.A.L .E.S. ( S upreme C ourt A dvancing L ega l E ducation for S tudents ) project. -2- The primary issue in this appeal is whether the Cit y of We stmoreland had “constructiv e notice“of the dangerous and defective con dition of the fire hydrants which resulted in the total fire l oss of th e home of the plaintiffs, Tracey and Dale Hawks

. Finding that the inoperabl e fire hydrants would have been discovered had the City performed an adequate insp ection , the lower courts cha rged the City with construc tive notice of the dangerous and defectiv e condition and held it liable to the plaintiffs for the damages that could have been avoided had the fire hydrants been operable. After carefully considering the record, as well as the briefs and argument of counsel, we ag ree that the City should be charged with constr uctive notice and, ther efore, affirm the judgment of the Court of Appeals upholding the trial cour t’ s judgment in favor of the plaintiffs. 1

BACKGROUND On October 23, 1993, at approxi mately 3:45 a.m., the Westmoreland Volunteer Fire Department was dispatched to extinguish a fire of unknown origin at the home of the plaintiffs, Tracey and Dale Hawks, located at 1135 Rainbow Circle in the City of West morelan d. The pl aintiff s were out o f town when the fire occurred.
Though a portion of the roof was ablaze when the firefighters arrived, the fire primarilywas confined to the middle of the house. Utilizing

the water from the tanks
on the fire trucks, the fire w as brought under control w ithin fifteen to thirty minutes of the firefighters’ arrival. When the water supply in the tanks was exhausted, the firefighters attempted to obtain water from the two fire hydrants near est the burning-3-

home. However, the hydran ts yielded no water be cause an undergro und valve in the feederpipe for each was closed. Although the fir efighters had with them tool s to open the valve in the hydrants, they did not have with them the six foot wrench which
was required to open the underg round valves. When it was not being used by maintenance employees of the City w ater system, that tool w as kept at the p ub lic works building.

When the firefighters realiz ed that the hydrants wer e inoperable, they sent tankers to the civil defense b uilding to obtain more water, called a neighboring fire departmentfor backup ass ista nce, and dispatched a city employee to retrieve the special wrench to open th e underground valves . While the firefighters waited for additional water, the fire gai ned momentum. The home was almost totally destroyed byfire before either additional w ater or the special wrench to open the valves arriv ed at the scene.
Thereafter, the plaintiffs brought this l awsuit against the City of Westmoreland pursuantto the Tennessee Governmental Tort Liability Act, speci

fically Tenn. Code Ann. § 29-20-204 (1980 Repl.), which provides as follows: (a) Immunit

y from s uit of a

gove rnmental entity is remov ed for any injuryca used by the dangerous or defective condition of any public building, structure, dam, reservoir or othe r public improvement owned and cont rolled by su ch governm ental en tity. (b ) Immunity is not removed for latent defective conditions, nor shall this section apply unless c o nstructive and/or actual notice to the governmental entity of such condition be alleged and proved in addition to the procedural notice req uired by § 29-20-302.-4- The plaintiffs sought damages from the City

for the total fire loss of their home which they al leged r

esulted from the dangero us or def ective conditi on of t he fir e hydrants. While the parties agreed that the City had no actual knowledge that the fire hydrantswe re inoperable, the plaintiffs alleged that the City was not immune from suit because it had constructive notice of the dangerous or defectiv e condition. The City denied that it had construc tive notice and also claimed that the closed valves and inoperative hydrants

were latent defective c onditions for which it retained immunity from suit under the statute.

The proof at trial established that the valves whic h were closed are loca

ted in
an underground cham be r approximately twelve to eighteen inches from the fire hydrants, between the main waterline and the hydr ants. The chamber

is covered by
a small cap about the

size of a coffee can. To close the v alve, it is necessar

y to pry off the cap, insert the special wrench, and turn the v alve clockwise. The valves can not be closed by natural causes, and the special wrench, which is not an item widely available to the public, must be used to effect the closure. The underground v alves are onlyclosed by

City employees if the ad jacent hydrants are leak ing and in need of repair. Otherwise , the underground valves should be open. It was undisputed that the valves should ha ve been open o n October 23,1993, when the plaintiffs’ home was completely destr

oyed by fire.

The parties stipulated that the hydrants and water line at issue in this appeal
were instal led as pa rt of a water system improv

ement project which w

as completed in May of 1991 and which was co nstructe d, pursuant to a contract, for th e City by EatherlyConstruction Company. J ohn Coleman Hayes, P.C., ( “Hayes ”) wa s2 S e e ,Chapter 1200 -5-1 , Reg ulatio ns fo r Pub lic W ater S ystem s and Drink ing W ater Q uality, Divisi on of Water Supply, Tennessee Department of Envir onment and Conservation. -5- employed as the inspector for the impr ovement project, and Danny Hawker, an employee of Hayes, perfo rmed the inspection. Although H awker testifi ed b y deposition that all the val ves near thehydrants were in the open position when he
com pleted the inspection of the project, he admitted tha t he did not test each individual hydrant. In addition, H awker’s log book r eflected that a leak was detec ted at Rainbow Circle on February 29, 1991. On Mar ch 1, the log book

reflec ted that three leaks had been found at that location. Additionally, the log book reflected that onlyone of the leaks had been repaired. Hawker testified that t he other two leaks were eventually repaired even though the l og book contained no notation. Hawker admitted, however, th at if the fire hydra nts them selves were leaking, h e would ha ve closed the un derground v alves to c

onduct the in spection and test of the sy

stem.

The plaintiffs also presented proof to show that the City of Westmoreland was required by Statelaw2 to establish and maintain an adeq uate flushing program. The purpose of the flushing program is to insure that the chlorine level in the water supply system is sufficient to kill bacteria and provide fresh water. The flushing program is not designed or intendedto test and insure that fire hydrants are functio ning prop erly. Under the state law, each munici pality has the discretion of choosing the methodand frequency of flushing. The method and frequency used for flushing the water system in Westmoreland varied.

T he plaintiffs offered testimony to indicate that the flushing program util ize d bythe City was inadequate because the chlorine level in the water was not

tested at-6-

each individual hydrant on a regular basis. Other testimony indicated that because the hydrants were on an ope n line, measuring the chlo rine residual levels at the end of the line was sufficient. How ever, two city

employees testified that, had the flushing program been con ducted c orrectly, the City wo u ld have discovered th e closed underground valves and the inoperable hydrants.

In addition, Larry Akins, who is state certified in water distributio n and who currently maintains the flushing program for

the City of Westmoreland testified that he measures the chlorine res idual level at each of the si xty fire hydrants

in the City
once every

three months. In response to q uestions from the trial court, Akins opined that the chlorine residual l evel in the water should be measured at each individual fire hydrant at least once per year. Akins stated that under no circumstances would he forego testing th e chlorin e level at e ach hydra nt for two years. In light of the fact that the two hydrants at iss ue in this case had been in exi stence f or approxi mately two and one-half years when this fire occurr ed, Akins testified that the Ci ty should ha ve known that the underground valves next to the hydrants were clos ed.

Based upon the proof summarized above,the trial c ourt fou nd that t he two fire hydrantsnearest

the plai ntiffs

home were in a dangerous and defective condition at the time of the fire on October 23, 1993, and, as a result, the plaintiffs had sustained additional damage totheir home which otherw ise could have been avoi ded. The trial court concluded that the City h ad constructive noti ce of the condition of the fire hydrants, and found the other defenses raised by the City inapplicable. As a resul t, the tr ial court found the City liable and awarded a judgment to the plaintiff s i n th e3 The tri al court f ound the plai ntiff

s had sustained r

eal and personal

property

damage in t h e amount of $58,500 but awarded a judgment for $50, 000, the statutory maximum. Tenn. Code Ann. § 29-20-403 (1997 Su pp.).

4 See Cru se v. C ity of C olum bia , 922 S.W .2d 492, 495 (Tenn. 1996 ) (citing cases). -7- amount of $50,0 00. 3 The Court of Appeals affirmed the trial court’s judgment. Thereafter, we granted the City permission to ap peal and, for the reasons that fol low, now affirm.

GOVERNMENTAL TORT LIABILITY A CT The doctrine of sovereign immunity derives from “feudal notions of the divine ri gh t of kings. In feudal England the King was at the ve ry pinnacle of the power structure and wasanswerable to no court since ‘the King can do no wrong.’” Cooper
v. Rutherford County , 531 S.W.2d 783, 786 (Tenn. 1975) (Henry, J., dissenting). The doctrine has been a part of the common law of Tennessee for more than a century 4 and provides that

suit may not be brought agains t a governmental entity unless that governmental entity has consented to be s ued. Lucius v. City of Memphis , 925 S.W.2d 522, 525 (Tenn. 1996). Indeed, this longstanding rule of sov ereign immunity is recognized by the Tennessee Constitution which provides, “[s]uits may be brought against the State in such manner and in such courts as the Legis lature may by law direct.” Art. I, § 17, Tenn.Const.

In 1973, the General Assembly enacted the Tennesse e Governmental Tort Liability Act (“the GTLA”), which governs claims against counties, municipalities, and other local governmental agencies, but does not apply to state government. Lucius ,-8-

925 S.W.2d at 5 25. The Act initially reaffirms the general common law r ule of governmental immunity, stating, in pertinent part, as follows: Except as may be otherwise provided in this chapter, all governmental entitiesshall be immune from suit for any injury which may

result from the activities

of such governmental entities wherein such governmental entitiesare engaged in the exerc ise and discharge of any of their functio ns, govern mental o r propriet ary.
Tenn. Code Ann. § 29-20-201(a) (1980 Repl.& Supp. 1997). The Act then removes governmental immunity in limited and enumerated instances for cert a in injuries. Ezell
v. Cockrell , 902 S.W.2d 394, 399 (Tenn. 1995); See e.g. Tenn. Code Ann. § 29-20- 20 2(a) (1980 Repl. & Supp. 1997) thr ough Tenn. Code Ann. § 29-20-205 (1 980 & Supp. 1997); see also Lucius , 925 S.W.2d at 525. Th e GTLA, therefore, is a comprehensive scheme which generally gov erns tort actions

against governmental entities. Cruse , 922 S.W.2d at 496.

As previo usly st ated, the courts below found the City of Westmoreland amenable to suit in this case pur suant to Tenn. Code Ann. § 29-20-204 (1980 Repl.), which provides as follows: (a) Immunity

from suit of a governmental entity is removed for any injury caused by the dangerous or defective condition of any publi c building, structure, dam, reservoir or other public improvement owned and cont rolled by su ch governm ental en tity. (b) I mm unity is not removed for latent defective conditions, nor shall this section apply unless constructi ve and/or actual notice to the governmental entity of such condition be alleged and proved in addition to the procedural notice req uired by § 29-20-302.
In this Court, the City argues that because it had nei ther actual nor constructive notice of the dangerousor defective condition of the fire hydrants, it is not liable to the plaintiffs. The City argues that the lower courts erred in basing their-9-

finding of constructive notice upon the City’s fail ure to inspect the hydrants since governmental immunity under the GTLA specifically is not waived

for injuries arising “outof a failure to make an inspection, o r by reason of m aking an inadequate or negligent inspection of any property.” Tenn. C ode Ann. § 29-20-205(4) (1980 Repl. & Supp. 1997). The City also argues that it i s not liable to the plaintiffs because the closed valves and inope rable fir e hydrants were “l atent defective conditions” for which it retains immuni ty from suit under the GTLA.

The plaintiffs respond that the City should be charged with constructive notice since the closed valves and inoperabl e hydrants would hav e been discovered had the City discharged its duty

to inspect the hydrants foll owing their installation and over the
course of the ensuing two and one-hal f years. While agreeingthat the City may not be held liable for

injuries resulting

from a failure to inspect, the plaintiffs ne vertheless argue that the City’s failure to inspect can and should be considered in determining whether the Cit y had constructive notice of the dangerous or defective c ondition which resulted in the

loss oftheir home. The plaintiffs also ar gue that this case does not involve “latent defective conditions” for which the City

retains immunity because the closed valves and i noperable fire hydrants coul d have bee n dis covered b y a reasonably careful inspection.

In resolving these is

sues, we review

the trial co urt’s findings of fact de novo upon the record, accompanie d by a pre sumption of the correctness of the findin gs unless the evidence preponderates against the findi ngs. We review questions of la w de novo with no presumption of corr ectness. Tenn. R. App. P. 13(d) ; Lucius , 925 S.W.2d at 524.-10- A. Constructive Notice Under Tenn. Code Ann. § 29- 20-204, the Legislature spec ifically made the removal of governmental immunity conditional upon a plaintiff’s al legation and proof that the governmental entity knew or should h ave kn own of the dangerous or defect ive condition which caused the plaintiff’s injury. Smith v. City of Covington , 734 S.W.2d 327, 329 (Tenn. App. 1985). In other wor ds, a plaintiff must allege and prove that th e governm ental entity had either ac tual or constructive notice of the dangerousor

defective condition. Since the parties in this case have agreed that the City did not ha ve actual n otice, we must determine whether the lower courts erred in concluding that the City had cons tructive notice of the closed valves and inoperable fire hydrants.

“Constru ctive notice” has been defined by this Court as “‘informati on or knowledge of a fact imputed by law to a pe rson (although he may not actu ally have it), because he could have disco vered the fact by proper diligence, and his situation was such as to cast upon him the duty of inquiring into it.’” Kirby v. Macon County, 892 S. W.2d 40 3, 409 (Tenn. 1994), quoting Black’s Law Dictionary , 1062 (6th ed

. 1990). Applying that definiti on, a governmental entity will be charged

wit h construc tive notice of afact or information, if the fact or information c ould have been discovered by reasonable dilig ence and the governmental enti ty had a duty to exercise reasonable diligence to inquire into the matter. Applying that rule to the circumstances

of this case, it is clear

that the lower courts cor rectly charged the C ity of Westmore land wi th constructive notice of the closed valves and inoperable fire hydrants.-11- Although the closedvalves were not visible without removing the cover from the underground c hamb ers in which they were lo cated, t he City woul d have discovered the valves wer e closed if it had fulfilled its du ty to e xercise reasonable diligence. The fire hydrants were installed by

direction of and contract w ith the City
as part of a water system i mprovement project. Once the project was completed, the City engaged another company to test and inspe ct the project. The inspector admitted, however, that each individual hydrant was not tested. Moreov er, during the inspection, three leaks were detect ed in the Rainbow Cir

cle area of the C ity. The inspector admitted that he w ould have closed the

underground valves

if, during the test of the system, the fire hydrants were leaking. Though the inspec tor testified that all of the leaks eventually were repaired, the log book reflects that only one of the three leaks were r epaired , leaving two leaks unr epaired and, pot entially, two underground valves closed. According to the trial evidence, the fire hydr

ants at issue in this appeal were the only two inoperable fire hydrants in the Rai nbow Circle area and indeed, in the whole City of Westmoreland . This proof clearly supports the lower courts’ finding that the City should have discovered the closed valves and inoperable fire hydrants as a res ult of the initial inspection of the water system improv ement project and therefore should be charged with constructive notice o f the dangerous or defect ive condition. There is also proof in the record tha t the City wou ld have discovered the closed valves i f it had followed proper flushin g procedures as requi red bystate law. In sum, the proof fully support s and does not preponderate against the lower courts’ finding that the Cit y had constructive notice of the dangerous or defective condition of the hydrants.5 Jones v. City of Johns on City , 917 S.W .2d 687 ( Tenn . App. 199 5); Mow dy v. Ke lly , 667 S.W .2d 489 (Tenn. App. 198 3). -12- The City contends that

basing th e findin g of const ructive notice upon its failure to inspect the hydrants is error because governmental immunity is no t waived for injuriesarising “out of a failure to m ake an i nspection, or by reason of maki ng an inadequate or negligent inspection of any property.” Tenn. Code Ann. § 29-20-205(4) (1980 Repl. & Supp. 1997)

. We disagree. Section 205(4) provi des immunity from suit when a governmental entity negligently fails

to discharge an exis

ting duty to inspect property not ow ned by t he City, and thereafter, inj uries arise from dangerous or defect ive conditions on su ch property which would have been discov ered had the governmental entity conducted an adequate inspection. In evaluating whether a p laintiff may establish constructive notice under Section 204 by proof that a governmental entity faile d to adequately discharge its duty to inspect, w e are not bound by Section 205(4) w hich provides immunity

from suit for injuries

resulting from “a failure to make an inspection, or by r eason of making an inadequate inspection.” Any authority to the c

ontrary is hereby overruled. 5

Section 204, upon which the plaintiffs in this case rel y, clearly prov

ides that a governmental entity is subject to suit for injuries that result from a dangerous or defect ive con dition e xisting on publicl y owned and controlled property or improvementsif the governmental entity has actual or c onstruc tive notice of the condition. Proof that a gov ernmental entity failed to adequately inspect property

or improvementswhich it owned a nd controll ed is directly rel evant to the question of whether it had cons tructive notice of the dange rous or de fective condition resulting in injury. To hold as the City sugge sts, and preclude

the plaintiffs from establishing construc tive notice under Section 204(b) by proof that the dangerous or d efect ive-13-

condition would have be en disco vered had the governmenta l entity discharged its duty to inspect the premises under i ts control, would hav

e the effect of requiring proof of actual notice in every case. Such an interpretati on is contra ry to the plain language of Secti on 204 which al lows a recove ry upon

a showi ng of either

actual or construc tive notice. Therefore, basing the finding of const ructive notice in this case upon the plaintiffs’ proof that the City failed to inspect the fire hydrants is not error.

B. Latent Defective Conditions The City also argues that it is immune from suit because the plaintiffs did not prove that the clo sed valves and inoperabl e fire hydrants were patently defecti ve conditions rather than latent defective conditions. We disagree.

The most basic principle of statutory construction is to ascertain and give effect to legislative i ntent. Ow ens v. State , 908 S.W.2d 923, 92 6 (Tenn. 1995). Leg islative intent is to be ascertained w henever possible from the natur al and ordinarymeaning of the lang uage used, without forced or subtle construction that would limit or extend the meaning of the language. Carson Creek Vacation Resorts, Inc. v. State, Dept. of Revenue , 865 S.W.2d 1, 2 (Ten n. 1993) (emphasis a dded ). If the legislative i ntent is expressed in a mann er devoid of cont radic tion and ambiguit y, there is no room for interpr etation or

constructions, andcourts are not at liberty to depar

t from the

words of t he statute. Id. Where the language contained within the four corners of a statute is plain, clear, and unambiguous, the duty of the courts is simple and obvious, “to say sic lex scripta, and obey it.” Id ., quoting Miller v. Childress , 21 Tenn. (2 Hum.) 319, 321-22 (1841).-14- The G TLA prov

ides tha t “[i]m munity

is not r

emoved fo r latent defe ctiv e co nditions,”Tenn. Code Ann. § 29-20-204(b) ( 1980 Repl.), the Ac t does no t condition the removal of im munity upon proof that injury resulted from a patently dangerousor

defective condition. The City’s argument that immunity is removed only if a plaintiff proves tha t the injur ies resulted from a patently defective condition is contrary to the plain l anguage of the statute and is w ithout merit.
Moreover, “latent defect” has been defined as “[a] hidden or concealed defect. One whi ch c ould not be discovered by reasonable and customary i nspection.” Black’s Law Dictionary , 794 (5th ed. 1979). The Utah Supreme Court, in const ruing a statute which, like our ow n, provided that

governmental “[i]mmunity is not waived forlat ent defe ctive conditions,” also held that a latent defect is “[a] defect which reasonably careful inspection wil l not reveal.” Vincent v. Salt Lake County , 583 P.2d 105, 107 (Utah 1978). The closed v alves and inoperable fire hydrant s in this case could have been discovered by reasonable and customary inspection. Accordin gly,
as a ma tter o f law, they were not latent defective conditions for which the City retained immunit y.

CONCLUSION The evidence in this record supports the low er courts’ finding

that the City had construc tive notice of the closed valves and inoperable fire hydrants which resulted in the total fire loss of the plaintiffs’ home. Accordingly, th e judgment of the Court of Appeals uphol din g the trial court’s judgment in favor of the plainti ffs is hereby affirmed.-15- __________

________________________ _____ FRANK F. DROWOTA III JUSTICE
Concur: Anderson, C. J. Reid, Birch, Holder, JJ.