# FILED
July 24, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE

EAST ERN SECTIO N

HUEY A. H OWELL, ) LOUDON CHANCERY ) Plaintiff/Appellant ) ) v. ) NO. 03A01-9704- CH-00127 ) CITY OF LEN OIR CITY, TN , ET AL, ) HON. FRAN K V. WILLIAMS, III ) Defendants/Appellees ) REVERSED in part; ) AFFIRMED in part, and ) REMANDED
Wayne A. Ritchie, II, Knox ville, for Appellant Pamela L. Reeves, Knoxv ille, for Appel lees

O P I N I O N

INMAN, Se nior Jud ge The plaintiff was injured w hen a large, long-dead tree fell from an embankment on to the top of his auto mobile as he was driving on First Avenue [Rock Springs R oad] in Lenoir City, Tennes see. In his tw ice-amended complai nt filed in the C ircuit Co urt the plaint iff seeks to
recover damages for his injuries. He allege d that the tree w as situated on pr

operty owned by the defendant Lenoir C ity w hich had actual or construct ive notic e of its dangerous condi tion or the dang er it posed to the public, and therefore enjoyed no immunity pur

suant to T. C. A. § 29-20-203(b) . Alternatel y, the plai ntiff alleged that the defendant Lenoir C ity Company owned the l and on which the tree was situated; still alternatively, the plaintiff alleged that the defendant Martha Corlew owned said land, and that the de fendants jointly and severally had actual or construct ive notice of the dangerous condition of the tre e and neglig ently failed to remove it

.2 The Lenoir City

Company filed its answ er in cours e, and denied ow nership of the p rope rty on which t he tr ee was situa ted. The a nswer was fo llowe d sho rtly by a motion for summ ary judgment supported by the aff idavit of Phyllis V. Edwards, Secretary

of Lenoir City

Company, Inc ., who test ified that:

“ . . . it appear

s that the residen ce of the defe ndant Martha Corlew is located on part of the acreage of Le noir City Company, Inc. sold to J. L. Boggs o n July 1, 1 907 . . . I can find no records i ndicating t hat the property described in the complai nt is owne d by the Lenoi r City Comp any, Inc.” The defendant Lenoir Ci ty filed no answer so far as the record reveals. It filed a motion for summary

judgment all eging ( 1) that the prop erty upon w hich the tree was locat ed is not the pr operty of the C ity; (2) that said prop erty was not maintained or used by the City, and for these reas ons the “Cit y had no author ity to enter onto this land and c ut or trim th is tree and furt her had no noticeeither actual or constructiv

e of the tree.” Thi s motion was supported by

the affidavit of Terr

y Vann, City Attorney, who testified that he had reviewed the public record and “tha t there has n ever b een any de dica tion of ci ty stre ets o r pub lic rig hts o f way to Leno ir City, Tennessee. There are no rights of way re cognized in the Regi strar [si c] of Deeds Office.” He further

testified that th e records do n ot reflect that t he property adjacent to Rock Spri ngs Road “b elongs to Lenoi r City ,” or “that Lenoir Cit

y has any

right of way adj acent to the street.” The motion was supported further by the affidavi t of John R. Johnson, head of the Lenoir C ity Stre et Department, w ho testified that t he City “does not have any right of way over the portion of the embankmen t where this tree stood,” a nd that “wedid not trim or mow that portion of the embankment” and that his Depar

tment “has no record of receiv ing any notice of any pr oblems wit h the tree in question.” The defendant Martha Cor lew filed no answer s o far as the recor d reveals

but file d a mo tion for s umm ary jud gmen t, su ppo rted by her aff idavi t tha t she did n ot own the land on which the tree stood, an d further supported b y the affidavit of a surveyor, David B. Gibson, that he made a survey of Corlew’ s property

and that the fallen t ree was not lo cated thereon, but appeared to have been “ located on proper ty owned by Lenoir City

.”3

The plaintiff

filed a motion for par

tial summary

judgment all eging that “the land upon which thesubject treeis located i s owned by the City of Lenoir City , Tennessee.” This motion was supported, on the issue of liability, by the affidavi t of David B. Gibson, heretoforereferenced. The pla intiff thereafter submi tted the affidavit of Doyle Arp, prop erty a sses sor o f Lo udo n Cou nty, wh o tes tif ied t hat “ no ta xes ha ve been assessed or

solicited to be paid for sai d property ,” referringto the stripof land between the C orlew pr

operty and th e paved porti on of First Avenue on whic h the tree was located. The aff idavit of Don Lane, form er Mayor of Lenoir City, was also submitted. He t estified that he was familiar w ith the subjec t property , and that “prior to and at the time of subject accid ent the City was in t he habit of waiting until tree l imbs, debris, etc. had fallen and needed to be removed from said property befo re the City would take any action . . . the City did not take any p reventive action to address the problem of decaying trees on the embankment . . . “ By agreed order, the case was transferred to the Chancery Court “for a ruling upon the issue of ownership of the real estate,” if the parties cou ld not otherwise agree. They did not ag ree, and the Ci rcuit Cour t thereupon entere d an Order of Transfer and Bifurcation, which pr ovided “.

. . the above styled matter i s hereby bifurcated, wit

h the Circui

t Court reta ining juri

sdiction over

the tort aspects of the cause and with the b oundary line an d ownership iss ues to be determ ined by the Loudon County Chanc ery Court . . . “ The case was heard December 4, 1995 in the Chanc ery Cour t on the var ious motions for summary

judgment. A j udgment was rendered dismi ssing the complaint as to all defendants. Whereupon, the plaintiff filed a R ULE 59.04 motion to al ter or amend the judgmen t dismissing Lenoir City because a genuine issue of m aterial fact existed as

to the liabil ity of the Ci ty pursuant to the Gover nment Tort Liabil ity Act, T. C. A. § 29-20- 101 et seq. , and that “the judgment be a mended to appl y only to the defendants Martha Corlew and Lenoi r City C ompany.”1 Somewhat mystifying since the plaintiff , in his motion for partial summ ary

judgment, all eged that Lenoir City owned this land; moreover, the plaintiff , in his R ULE 59 motion, asked t he Court to limit the dismissal of hi

s complai

nt to Corlew and Lenoir City Company.

2 According to the City

attorney, no street or r ight of way

in Lenoir C ity had ever been dedi cated . . . , a point not cruc ial to a res olution of this case. 4 The R ULE 59 motion was heard Nove mber 22, 1996. The Cha ncellor filed a comprehensive Opinion to “ revisi t the issues a nd clarify the earlier ruling.” The plaintiff apparently

attempted to rev italize his theory that Martha C orlew ow ned the land between h er residencelot and Fir st Avenue, 1 which tr iggered a title analy sis of the Corlew

property. The Chancellor concluded that t here was no evidence of ded icat ion o f th e dis pute d lan d to t he Cit y, 2 nor eviden ce of control, and that the land on which t he tree stood con tinues to be ti tled in J. L. Boggs or his heirs, holding “mere dedication by

the Lenoir Ci ty

Company or Boggs of

the land for use as a pub lic

roa d doe s not

rel ieve Bog gs o f respon sibility for the undeveloped and unaccepted por tion of First Aven ue , even thoug h the City, by reason of the dedication, has the option of eventually accepting the entire 60-foot

easement.” The R ULE 59 motion was denied, and the case was dismissed as to all defendant s. The plaintiff appeals and presents for review the propriety of the dismissal of the action against all three (3) defe ndants. Since the plai ntiff alleged in his motion for par tial summary

judgment that t he tree stood on l and owned by Lenoir City, and in legal effect therefor conceded t hat Martha Corlew and the Lenoir City Company were properly dismissed, we will consider only the propriety of the dismissal of Lenoir City. Our review is de novo on the record, w ith no presumpti on of correctness since the is sue is one of law

. Johnson v. EMPE

, Inc., 837 S.W .2d 62 (Tenn. Ct. App. 1 992). At the outset, we do not consider the issue of the fee ownershipof the subject land on which the tree stood to be nece ssarily determinative of the liability of Lenoir City. I t is not dis puted that the treewas but ten feet from the edge of the pav ement of First Avenue. Evidence was presented that the width of the right-of-way of First Avenue is 60 feet, which places the tree well within the City’s right of way. This fact3 Except for the affidavit of Johnson w herein he stated a legal conc lusion. 5 appears not to have been disputed, 3 and substantial ly negat es the issue of w hether the land on w hich the tree stood had ever formally been de dicated to the publ ic. Moreover , the issue of w hether Lenoir C ity coul d be held liabl e in tort for fail ure to correct a dang erous conditi on was not w ithin the prov ince of the Chancer y Court. The provisi ons of the Gover nment Tort Liabil ity Act, T. C. A. § 29-20- 101 et seq., control thi s case. The Act grants immuni ty to gov ernmental entiti es with exceptions, one of which i s specified in T. C. A. § 29-20- 203. This statute provides that immunity is removed for any injur y caused by

a defective, un safe, or dangero us condition of any

street ow ned or control led by the g overnmental en tity. The removal of immunity in t his limited context creates a duty of reasonable care on the part of municipaliti es to keep the st reets safe. See, Kessell v . Ashe, 888 S.W.2d 430 (Tenn. 1994). Un der this record, since th e City has an easement for street purposes which enco mpasses the area w here the tree stood, the city enjoys no i mmunity from liab ility. Finally, it must be observed that this case was transferred to the Chancery Court - moreor less by agreement - for the purpose of “r uling upon theissue of ownershipof the real estate ” [first or der] and thereafter

bifurcated [seco nd order] w ith the “boundary line and ownership issues to be det ermined by the Chancery Court.” According to the record, as we have twice noted, the plaintiff abandoned his claim against Cor lew and Lenoi r City Company, thereby obvi ating all issues save the liability of Lenoir City under the Government Tort Liab ility Act, jurisdiction of which was retai ned by the Ci rcuit Cour t. As to Lenoir C ity, the j udgment is reversed and t he case is remanded to the Chancery Court for transfer to the Circuit Court. As to Mart ha Corlew and Lenoir Ci ty Company, the j udgment of dismiss al is affirmed. Cost s are asse ssed to th e pla inti ff and L eno ir City e quall y.

_____________________________ W illiam H. I nman, Senior Ju dge6

CONCUR:

_______________________________ Housto n M. Godd ard, Pre siding Jud ge

_______________________________ Charles D. Susano , Jr., Jud ge