FILED

March 12, 1997

Cecil W. Crowson

Appellate Court Clerk

ALICE LIVINGSTON, as parent and )

next friend of DAVID JONATHAN )

LIVINGSTON, a minor, and DAVID )

JONATHAN LIVINGSTON individually, )

)

Plaintiffs/Appellees, ) Appeal No.

) 01-A-01-9609-CV-00391

)

VS. ) DeKalb Circuit

) No. 6971

)

UPPER CUMBERLAND HUMAN )

RESOURCE AGENCY, )

)

Defendant/Appellant. )

COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEALED FROM THE CIRCUIT COURT OF DEKALB COUNTY

AT SMITHVILLE, TENNESSEE

THE HONORABLE JOHN A. TURNBULL, JUDGE

JERRY LEE BURGESS

Courthouse Square

One South Jefferson Street

Cookeville, Tennessee 38501

Attorney for Plaintiffs/Appellees

J. RUSSELL FARRAR

WILLIAM N. BATES

211 Seventh Avenue No., Suite 320

Nashville, Tennessee 37219-1823

Attorney for Defendant/Appellant

AFFIRMED AND REMANDED

BEN H. CANTRELL, JUDGE

CONCUR:

TODD, P.J., M.S.

LEWIS, J.
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O P I N I O N

The issues in this case, brought under the Tennessee Governmental

Tort Liability Act, include the trial judge’s allocation of fault and the award of damages.

We affirm.

I.

David Jonathan Livingston, a thirteen year old boy attending a church

retreat, was injured on the premises of the Upper Cumberland Human Resource

Agency (UCHR). Walking barefoot at dusk in a grassy area near a gravel road, Mr.

Livingston stepped into an eight inch clay 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 the ground surface lacerated Mr. Livingston’s leg just below the knee.

The wound did not heal properly and ultimately required surgery to reposition a leg

muscle, and a skin graft to cover the area.

After a bench trial before the Circuit Court of DeKalb County, the trial

judge found UCHR’s negligence caused ninety-five percent of the injury and Mr.

Livingston’s negligence five percent. The court awarded damages in the following

specific amounts:

1. $15,000 for pain and suffering up to the date of the

trial;

2. $15,000 for future pain and suffering;

3. $40,000 for permanent impairment 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.
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Comparative Fault

With respect to the allocation of fault, the trial judge found that by

leaving this open hole and allowing grass to grow up and cover it, the defendant

created a virtual trap in an area where it should have foreseen that people might be

playing night or day. He also found that if Mr. Livingston had had a flashlight it would

not have helped him to see the dangerous condition.

The appellant does not argue that the evidence preponderates against

these particular findings, see Rule 13(d), Tenn. R. App. Proc., but the appellant does

argue that Mr. Livingston was more than five percent at fault because he was in an

area where he should not have been walking at night and he was not paying attention

to the ground in front of him.

Mr. Livingston testified that he had been to the dining hall and was

walking back to his bunk area with some snacks in his hands. It was almost dark but

some security lights and light from the sky illuminated the area. He was barefooted,

and the gravel on the road hurt his feet, so he walked in the grass to the left side of

the narrow roadway. He was with some other boys and was not paying particular

attention to where he was going.

The allocation of fault by the court in a non-jury case is presumed to be

correct unless the preponderance of the evidence is otherwise. Wright v. City of

Knoxville, 898 S.W.2d 177 (Tenn. 1995). We have examined the record in this case

and we think the trial judge’s findings were correct. Therefore, we affirm the allocation

of fault.

III.
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Damages

The appellant does not dispute 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 and future loss of enjoyment of life. Loss of enjoyment of life is

one of the intangible elements of damages, along with pain, suffering, and

inconvenience. Martin v. Southern Railway, 463 S.W.2d 745 (Tenn. App. 1971); see

also Dixie Feed & Seed Co. v. Byrd, 376 S.W.2d 765 (Tenn. 1963).

The proof showed that Mr. Livingston was an excellent athlete prior to

the accident. He played baseball, basketball, football, and enjoyed scuba diving with

his father. After the accident and the subsequent skin graft, 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 whether he has permanently given

up contact sports, but it is clear that he no longer excels in these activities. He now

runs track in high school, but he has gone from being one of the fastest runners to

being “behind everybody” in the 400 meter competition. When he runs for a long

period of time his leg tightens up and starts to burn. Sometimes his ankle swells after

periods of physical activity.

In addition to giving Mr. Livingston an impairment rating of fifteen

percent to the body as a whole, the surgeon who performed the skin graft said that in

his opinion the area of the wound would remain susceptible to trauma. As a result,

Mr. Livingston should wear a pad, or a wrap over the area if he engages in contact

sports. Because of the tendency of the ankle to swell, Mr. Livingston should wear an

elastic wrap if he is going to be on his feet for long periods of time. We do not think

the evidence preponderates against the trial judge’s finding of $57,500 for the past

and future loss of enjoyment of life.
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The appellant also argues that an award to Mr. Livingston of $40,000 for

permanent impairment and disfigurement plus an award for pain and suffering and the

loss of enjoyment of life awards him a double recovery. Although the appellant does

not cite any authority supporting that argument, we can see how the separate

categories can be easily confused. But they are different. As the Court said in

Thompson v. National Railroad Passenger Corp., 621 F.2d 814 (6th Cir. 1980):

[C]onceptually, these categories of intangible damages

are distinct . . . [p]ain and suffering, permanent injury, and

loss of enjoyment of life each represent separate losses

which the victim incurs. Permanent impairment

compensates the victim for the fact of being permanently

injured whether or not it causes any pain or

inconvenience; pain and suffering compensates the victim

for the physical and mental discomfort caused by the

injury; and loss of enjoyment of life compensates the

victim for the limitations on the person’s life created by the

injury.

621 F.2d at 824.

Part of the confusion, no doubt, results from the fact that the same

elements are factors to be considered in different categories. For instance,

permanent physical impairment is a category all its own, but it also affects the injured

party’s ability to do the things he or she likes to do. Hence, it is a factor in the loss of

enjoyment of life. Likewise, pain and suffering may be the cause of the permanent

impairment because doing normal things causes too much pain.

The permanent impairment, however, need not result from pain. It may

be that the injury damaged the nerves or muscles so that the body simply does not

function as well as it did. In that case, the injured party has a permanent impairment

and no doubt, will suffer a loss of the enjoyment of life -- separate and apart from the

pain caused by the trauma. Such is the case here. Mr. Livingston lost the use of a

muscle in his leg that had to be moved over to cover the bone in the area of the

laceration. His physical ability has been impaired and he cannot do the things he

once enjoyed did well. He also will suffer some pain in the future, but the pain is
associated with nerve growth and the healing process, not with ordinary physical

activity.

The trier of fact must take care not to duplicate an award when

considering the intangible elements of damages associated with personal injuries.

We do not find that the trial judge did so here.

As to the amount awarded for the permanent injury and disfigurement,

we do not think the evidence preponderates against the trial judge’s finding.

The judgment of the trial court is affirmed and the cause is remanded

to the Circuit Court of DeKalb County for any further proceedings necessary. Tax the

costs on appeal to the appellant.

_____________________________

BEN H. CANTRELL, JUDGE

CONCUR:

_______________________________

HENRY F. TODD, PRESIDING JUDGE

MIDDLE SECTION

_______________________________

SAMUEL L. LEWIS, JUDGE