# FILED
March 12, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk ALICE LIVINGSTON , as parent and ) next friend of DA

VID JONATHAN ) LIVINGSTON, a mi nor, and DAVID ) JONA THAN LIVI NGST ON ind ividu ally, ) ) Plaintiffs/App ellees, ) Appeal No. ) 01-A-01-9609- CV-00391 ) VS. ) DeKalb Circuit ) No. 6971 ) UPPER CUM BERLAND HU MAN ) RESOURCE AGENCY, ) ) Defendant/Appellant. )

COURT OF APPE ALS OF TENNESSEE MIDDLE SEC TION AT NASHVILLE
APPEALE D FRO M THE C IRCU IT COU RT OF D EKALB C OUNTY AT SMITHVILLE, TENN ESSEE THE HONORABLE JOHN A. TUR NBULL, JUD GE

JERRY LEE BURGESS Courthouse Square One South Jefferson Street Cookevil le, Tennessee 38501 Attorney for Plaintiffs/Appelle es J. RUSSELL FARRAR WILLIAM N. BATES 211 Seventh Avenue No., Suite 3 20 Nashvil le, Tennessee 37219- 1823 Attorney for Defendant/Appellant

AFFIRMED AND REMAN DED

BEN H. CAN TRELL, JUDGE

CONCUR: TODD, P.J., M .S. LEW IS, J.- 2 - 

## O P I N I O N

The issue s in this case, brought under the Tennessee Governmental Tort Liability

Act, includethe trial j udge’s all ocation of fault and theaward of damages. We affirm.

I.

David Jonath an Livingst on, a th irteen yea r old boy at tendin g a c hurch retreat, was inj ured on the premises o f the Upper Cumberland Human Resource Agency (UCHR). Walking barefoo t at dusk in a grassy area near a gravel road, Mr. Living ston stepped intoan ei ght inch cl ay pipe that had been sunk into the ground approximately eighteen inches to provide access to a water valve
. The jagged edges of the pipe near th e ground sur face lacerated Mr. Liv ingston’s leg just below the knee. Th e wound did not heal properly and ultimately required surgery to repositio n a le g muscle, and a sk in graft to cover the area.

After a bench trial before the Circ uit Court of De Kalb County , the trial judge found UCHR’s

neglige nce caused ninety-five perc ent of the injuryand Mr. Livingston’s neglige nce five perc ent. The court awarded damages in the foll owing specific amounts:

1. $15,000 for pain and suffering up to the date of the trial; 2. $15,0 00 for future pain an d suff ering; 3. $40,000 for permanent i mpairment and disfigurement. 4. $17,500 for the loss of past enjoyment of life; and 5. $40,000 for the loss of future enjoyment of life.

II.- 3 - Comparativ

e Fault

With res pect

to t he al loc atio n of fa ult, the trial j udge found that by leavin g this ope n hole and allow ing gra ss to grow up and cover

it, the defendant created a virtual trap in an area where i t should have foreseen that people mig ht be playing nightor day. H e also found that if M r. Livi ngston had had a flashlight it would not have helped him to see the dang erous conditi on.

The appellant does not argue tha t the evidence preponderates against these particular

findings, seeRule 13(d), Tenn. R. App. Pro c., but the appellant does arg ue that Mr. Li vingst on was more than five perc ent at fault because h e w as in a n area where he should not have been walki ng at nigh t and he was not paying attention to the g round i n front of him.

Mr. Livi ngsto n testified that he had been to the dini ng hall and w as walking back to his b unk area wi th some snacks i n his hands. It was almost

dark but some security

lights an d light from t he sky il luminated the area. He was ba refooted, and the gravel on the road hurt his feet, so he walked in the grass to the left side of the narro w r oad wa y. He was with s ome other boys and was not paying par ticular attent ion to whe re he was goin g.

The allocation of fau lt by the court in a non-jury case is presumed to be correct unless the preponderance of the ev idence i s oth erwise. Wright v. City of Knoxville , 898 S .W .2d 1 77 (T enn . 199 5). W e have examined therecord in this case and we think the trial judge’s findi ngs were correct. Therefore, we affirm the al location of fault.

III.- 4 - Damages

The appellant does not dispu te the trial court’s award for past and future pain and suffering. The appellant does, however, take issue with the court’s award of $57,500 for past an d future loss of enjo yment of life. Loss of enjoyment of life is o ne of th e intangibl e elements of damages, along w ith pain, suffering , and inconvenience. Martin v. SouthernRailway , 463 S.W.2d 745 (Tenn. App. 1971); see also Dixie Feed & Seed Co. v. Byrd, 376 S.W .2d 765 (Tenn. 196 3).

The proof showed that Mr. Liv ingston was an excellent athlete prior

to the accident. He played baseba ll, basketbal l, football, and enj oyed scuba di ving w ith his father. After the ac cidentand the subsequ ent skin gr aft, he gave up baseball and football altogether because he feared that sliding into base or a blow to his leg would “mess it up.” There is a dispute in the record about w hether he has per manently gi ven up contact spor

ts, but it i s clear that he no longer excels i n these activ ities. He now runs track in hi gh school, but he has gone from bei ng one of the fastest r unners to being “behind everybody ” in the 40 0 met er competition. When he runs for a long period of time his legtightens up and starts to b urn. Sometimes his ank le swell s after peri ods o f ph ysica l acti vity.

In addition to g iving Mr. Liv ingsto n an im pairment rati ng of fifteen percentto the body as

a whole, t he surgeon w ho performed the skin graft said that in his opinion the area of th e wound would remain susc e ptible to tra uma. As a resul t, Mr. Livingston should wear a pad, or a wrap over the area if he engages in contact sports. Because of the tend ency of the ankle to swell, Mr. Livingston should wear an elastic wrap if he i s going to be on his feet for long period s of time. We do not think the evidence preponderates against the trial ju dge’s f inding of $57,500 f or the past and future loss of enj oyment of life.- 5 - The appellant als o argues that an award t o Mr. Liv ingston of $40,000 for permanentimpairment and di sfigurement plus an award for pain and suffering and the loss of enjoyment of li fe awards him a double recovery. Al though the appell ant does not cite any authority supporting that argument, we can see how the separate categories

can be easily

confused. Bu t the y are different. As the Court said in Thompson v

. National R

ailroad Pass enger Corp. , 621 F.2d 814 (6th Cir. 1980): [C]o ncep tual ly, these categor ies of intan gi ble damages are distinct .
. . [p]ain and suffering , permanent injur y, and loss of en joy ment

of l ife each represent

separate loss es wh ich the victi m incurs. Per manent impairment compensates the victim for the fact of bein g permanently injured whether or

not it causes any p ain or inconvenience; pain an d suff ering compensates t he victim forthe physical and mental dis comfort caused by the inju ry; and loss of enjoy ment of l ife compensates the victim for the limitat ions on the pers on’s life cre ated by the inju ry. 621 F.2d at 824.

Part of the con fusion, no doub t, res ults fr om the fac

t that the sam e elements arefa cto rs to be consi dered in different categories. For instanc e, permanentphysical impairment is a category

all itsown, but i t also affects the injured party’s ability

to do the thing s he or she likes to do. Hence, it is a factor in the loss of enjoyment

of life. Likewis e, pain a nd suffering may be the cause of the per manent impairment becaus e doing normal things caus es too much pain.

The permanent impair ment, however, need not res ult from pain. It may be that the injury damaged the nerves or muscles so that t he body simpl y does not function as well as it did. In that case, t he injured par ty has a permanent impair ment and no doubt, wi ll suffer a loss of the enjoyment of l ife -- separat e and apart from the pain caused by the trauma. Such is the case here. Mr. Liv ing ston los t theuse of a muscle in his l eg t hat had to be moved over to cover the bone in the area of the laceration. His physical abil ity has been impa ired an dhe cannot do the thi ngs he once enjoyed did well. H e also wi ll suffer some pain in the future, but t he pa in i sassociated with ner ve grow th and the he aling proc ess, not w ith ordinary physical acti vity.

The tr ier of fact must take care not to dupl icate an award w he n considering the intangi ble elements of damages associated with personal injuries. We do not find that the trial judg e did so here.

As to the amountawarded for t he permanent injur y and disfig urement, we do not t hink the evidence prepon derate s against the trial judge’s f inding.

The judgment of the tr ial court i s affirmed and the cause is remande d to the Circuit Court of De Kalb Coun ty fo r any f urth er pro ceed ings n eces sary. Tax the costs on appeal to the appellant.

_____________________________ BEN H. CAN TRELL, JUDGE

CONCUR:

_______________________________ HENRY F . TODD, PRESID ING JUDGE MIDDLE SEC TION

_______________________________ SAMUEL L. LEWIS, JUDGE