### IN THE COURT OF APP EALS OF TENNESS EE AT JAC KSON A ugus t 19

, 200 8 S es sio n

PATTY BROW N v. CHES TER COUNTY SCH OOL DIST RICT

An Appeal from the C ircuit Court f or Cheste r County No. 05-4533 Donald H. Allen, Ju dge

No. W2008-00035-C OA-R3-C V - Filed Dec ember 30, 2008

Th is i s a pr e mis e s li abil ity c a se a ga ins t th e c ou nty . T he plaint if f atte nd e d a foo tb all ga me a t a

co u n ty high school. She fell on the steps leading to the blea cher s in the football stadium and suffe red back injuries. She claimed that the step on which she fell wa s dented prior to her fa ll, and that this caused he r fa ll. The plaintiff filed this ac tion against t he school district, alleging t hat it was negligent in fai l i n g to corre ct a da ngerous c ondition or in failing to warn her about the dange rous

c on dit ion on the sc ho ol d ist ri c t’ s pro pe rty. Th e sc ho ol dis tr ic t f ile d a mot ion fo r s umm ary jud gme nt,

asserting t h at t h er e wa s no genuine issue of material fa ct re garding the sc hool district’s actual or constructive notice of the defe ctive condition. Alternatively, it claimed that the school district was immune from suit under the GT LA. T h e t ri al co urt agre ed with the school district and gr anted summary judgment based on both grounds. The plaint i ff n o w ap p eals. W e re verse and re mand, concluding that the plaintiff submit ted s ufficie nt evidenc e to cre ate a genuine issue of material f act on the iss u e of whe ther the sc hool district had actua l or construc tive notice of a danger ous or defe ctive condition, and that the sc hool district is not immune from suit under the GT LA.

Te nn. R . A pp. P . 3 App e al a s o f R igh t; Judg me nt of th e Ci r c uit

Co ur t i s Reve rsed and Remanded

H OL LY M. K IRBY , J., delivere d the opinion of the Court, in which D AVI D R. F ARMER , J. , a ndJ. S TE VE N S TA FF O RD , J., joined.

Danny R. Ellis, Jackson, Tenne ssee, f or the plaintiff/a

ppellant, Patty Brown.

Jennifer K. Craig and Matt S. S hepher d, Jac k s o n , Tenne ssee, f or the de fendant/appellee, Che ster Cou nty Sc ho ol D ist

ri c t.

OP IN ION

On August 20, 2004, Plaintiff/Appellant Patty Brown (“Brown” ) attende d a high school football jamboree at Chester County High S ch ool. It had bee n raining for some time befor e the
ga me . Br ow n s a t onwh a t is tr a dit ion a lly de sig nate d a s the “ vis ito r’ s si de ” ble a c he rs in the fo otb a ll stadium. These blea cher s had a six-step sta irca se lea ding to the seating are a. Brown fell and injure dB ro w n filed a n a m e n d e d c o m p la in t o n Ju ly 1 2 , 2 0 0 7 , w h ic h w a s n o t m a te ria lly d iffe re n t fro m th e o rig in a l. 1

-2- her ba ck as she was wa lking down the steps. After she fell, Brown looked and sa w that the step on wh ic h s he sli pp e d h a d a “ dip ” or a “ bo w” in it. Br ow n r e c e ive d me dic a l tr e a tme nt f or ba c k in jurie s.

On Aug u s t 8

, 2005, Brown filed this lawsuit against the Chester County S chool District (“School Boar d”) unde r the Gove rnmental Tort Liability Act (“GTLA ”), Te nnessee Co d eA n n o tated § 29-20-101, et seq

. In her lawsuit, Brown asserted t hat t he S chool B oard was negligent in failing to discover a nd corr ect a

danger ous and hazar dous condition or, i n the alternative, i n failing to warn Brown o f t h e d angerous condition. She alleged that the dangerous c ondition could have bee n discovere d by a re asonable inspection. 1

On Ma y 1 0, 20 07 , th e Sc ho ol B oa rdfi le d a motio n for su mma ry jud gme nt. It

de nie d li abil ity fo r B ro wn ’s inj urie s, c la imi ng that it did no t cr e a te the a lle ge d da ng e ro us c on dit ion , an d tha t it did not have a ctual or c onstructive knowledge of the c ondition. The School Board furthe r cla imed that it was immune from liability for an y fa ilure to conduc t an ade quate inspec tion of the bleac hers pursuant to GTLA § 29- 20-205(4)

.

In response to the School Boa rd’s summary judgment motion, Brown filed the d ep o s i t ion testimony of the m aintenanc e supervisor for the School Board, Jamie Canada (“Cana da”) , to show that th e Sc ho ol B oa

rdha d a c tua l or

c on str uc tiv e kn ow le dg e of

the con di ti on of

the ste ps . I n h is deposition, Ca n ad a t es t i fi ed that he inspected the ble ache rs bef ore the game, that he did not see a dent or bend in the s tep i n question, and that the s teps wer e in t he same condition after the game a s befor e the ga me. Brown also filed the deposition testimony of the principal of Chester County High Sc ho ol, To ny Ki lz e r ( “ Ki lz e r” ), wh o te sti fi e d th a t th e sc ho ol h a d a du ty to ma int a in the pr e mis e s. Ki lz e r s a id that th e de nte d s te p w a s r e pla c e d o ve r a ye ar a ft e r the inc ide nt.

On Octobe r 12, 2007, the trial c ourt hea rd ar gument on the summary judgment motion and
too k th e matte r u nd e r a dv ise me nt. On Oc tob e r 1 7, 20 07

, Br ow n su bmi tte d a n a me nd e d r e sp on se to the School Board’s motion, attac h i n g p h o t ographs of the steps taken on O ctober 14, 2004. On October 25, 2007, the trial court issued a letter r uling, stating i ts finding that Brown had submitted no evidenc e that ther e wa s a bend or dent in the step in question p r i or to B ro wn ’s fa ll a ndthat, there fore , the School Board was entitled to summary judgment on the issue of actua l or construc tive

no tic e . T he tr ia l c ou rt

a lso c on c lud e d that, in a ny e ve nt, the Sc ho ol Boa rdwa s im mun e fr om s uit for making a n inadequate or ne gligent inspection, pursuant to Tenne ssee Code A nnotated § 29-20- 205(4). On Dec ember 17, 2007, the trial court enter ed an order consistent with its letter ru l i ng, granting the School Board’ s motion for summary judgm en t b eca use (1) the School Board did not have a ctual or c onstructive n o t i ce o f t he allege d danger ous or def ective c ondition, (2) the School Boa rddidno t c re a te or

c a us e the a lle ge d d a ng e ro us or de fe c tiv e c on dit ion prior to the in c ide nt i n question, and (3) the School Board re tained governmental i mmunity for either a failure to make an inspection or a failure to make an adequate i nspection, pursua nt to Tennessee Code Annotated § 29- 20-205(4) . From this order, Brown now a ppeals. W e re vie w the tr ial cou rt ’s gr a nt o f s umm ary jud gme nt de novo with no presumption of

corr ectne ss. Wa rre n v . Es tate of Kir k , 9 54 S.W .2 d 72 2, 72 3 (T e nn

. 19 97 ). Sum mary jud gme nt i s-3-

appropriate whe re “ t h e p l ea d ings, depositions, answers to interrogatories, and a dmissions on file,
to g e th e r w ith th e a f

f id a v it s , if a n y , s h o w th a t th e r e is n o g e n u in e is s u e a s to a n y mate r ia l f a ct and that th e mov ing pa

rt y is e nti tle d to a

jud gme nt a s a

ma tte r o f l a w. ” Te nn . R. Civ . P. 56 .0 4. W e mus t view the e vidence in a light most favor able to the nonmoving party, giving that party the bene fit of all rea sonable infe renc es. Warren

, 954 S.W.2d at 723 (quoting Bain v . W e lls , 936 S.W.2d 618, 622 (Tenn. 1997) ).

On appe al, Brown ar gues that she submitted sufficie nt evidence to cre ate a genuine issue of materia l fac t r egar ding whether the School Board had a ctual or c onstructive notice of the dange rous condition. In addition, she contends that the S chool Board is not immune from suit under Te nnessee Code Annotated § 29- 20-205(4) . We a ddress e ach issue in turn.

We f irst addre ss Brown’s ar gument rega rding the School Board’s a ctual or c onstructive notice of the danger ous condition. To sustain a claim for premises liability, a plaintiff must prove (1 ) that th e da ng e ro us or

de fe c tiv e c on dit ionwa s c a us e d o r c reat ed by the o wn e r, op e rator , o r h is agent, or (2) that the c ondition was cre ated by a t h ird party a nd the owner , operator, or age nt had
actua l or constructive notice of the condition be fore the ac cident. Ma rtin v . Wash mas te r Aut o Ct r. , 946 S.W.2d 314, 318 (Tenn. Ct. App. 1996). The sec tion of the GTLA w hich re moves sovere ign immunit y for injuries c aused by danger ous or defe ctive structure s essentially codifies this commonla w o bli gatio n:

(a) Immunity from suit of a governme ntal entity is removed for any injury caused by the da ng e ro us or

de fe c tiv e c on dit ion of a ny pu bli c bu ild ing , struc tur e , d a m, r e se rv oir or other public improve ment owned a nd controlled by such gove rnmental e ntity. (b) I mmunity i s not removed f or latent de fec tive conditions, nor shall this section apply unless co n s t ru cti ve and/or actua l notice to the governmental entity of such condition be allege d and p roved in a ddition to t he proc edura l notice re quired by [Tenne ssee Code A nnotated] § 29- 20-302 [r epea led].

Tenn. Code Ann. § 29- 20-204 (2000) . Thus, the statute indicate s that th e S chool Board may be liable for injury c aused by the defe ctive condition i f Brown c an “a llege and pr ove” that the School Board had c onstructive and/or actua l notice of the a lleged d ef ective or dange rous condition that

cause d or contributed to Brown’s inj uries. Constructive knowle dge is “information or knowledge of a f act imput ed by law to a person (although he may not actua lly have it), because he c ould have discovere d the fac t by proper diligence, a nd his situation was such as to ca st upon him t he duty of inquiring into i t.” Haw ks v . City of We stm or e lan d , 960 S.W.2d 10, 15 (Tenn. 1997) (quoting Kirby

v . M ac on Co unty , 892 S.W.2d 403, 409 (Tenn. 1994) (quoting B LA CK ’ S L A W D I CTION A RY , 1062 (6 ed. 1990)) ). “A pplying that definition, a governme ntal entity will be char ged with construc tive th

no tic e of a fa c t or inf orma tio n, if

the fa c t or

inf orma tio n co uld ha ve be e n disc ov e re d by r e a so na ble diligence a nd the governmental entity ha d a duty to exer cise rea sonable diligence to inquire into the matter.” Id. Brown argue s that materia l evidence shows that the School Board had a ctual notice of the danger ous or de fe ct i v e condition of the blea cher step befor e the jambor ee, be cause maintenanc e

su pe rv iso r C a na da te sti fi e d tha t he sa w the ste ps be fo re the ga me , an d tha t the ste ps we re the sa me afte r the ga me as be forethe game. Be cause the dent cl ea rl y ex i sted afte r the ga me, Brown-4-

maintains, the testimony that the same condition existed bef ore the game s h ows that Canada had
actua l notice of the condition, though he did not consider it to be dangerous. Alternatively, Brown
argue s, Canada’ s testimony shows that he at least had constructive knowledge of the dange rous or d ef ec t i v e co ndition, because he should have seen the dent in the step whe n he inspec ted the premises. His fa ilure to perc eive a problem with the step, she claims, was the r esult of a ne gligent inspection. Based on this evidenc e, Brown c ontends, a ge nuine issue of mate rial fa ct exists for tria l as to whethe r the School Board ha d actua l or construc tive notice of the danger ous condition before Br ow n f e ll.

In re sponse, the School Board argue s that Brown has submitt ed no proof that the dent existed prior to the accident. Brown a dmitted that she did not noti ce a dent in the step bef

ore she fell, eve n though she was looking “down a nd ahea d” as she walked dow n the steps. Even if a danger ous or defe ctive condition ca n be shown, the Schoo l Board ar gues, Brown ha s not demonstrated that the School Board had actual or constructive know ledge of this dangerous c ondition. They cite Canada ’s testimony that he walked e very step before the game and did not see a dent i n the step, eve n when he re place d the step a year afte r B rown’s acc ident. Thus, the Board c ontends, there is no evidence of ac tual notice. Rega

rding construc tive notice, the School Board a rgues that Brown cannot show that the School Board had an independent dut y to inspect the football stadium. In the a bsence of a duty to inspect, the School Boa rd asserts, the inspection of the footba ll stadium by t he maintena nce department exce eded its obligations under the law. F urthermor e, the School Board ma intains, the fa c t th a t Ca na da did no t se e the de nt in the ste p in qu e sti on du ri ng the ins pe c tio n do e s n ot e qu a te to notice; at most, it shows that the alleged de fec t was not dange rous at all. Thus, the School Board

asserts, the trial court prope rty grante d summary judgment in its favor.

In orde r to determine whether sufficie nt evidence exists to c reate a ge nuine issue of mate rial fa c t on a c tua l or

c on str uc tiv e no tic e , w e re vie w the e vid e nc e that w a s p re se nte d to the tr ia l c ou rt

. In this case , the t estimony prese nted consist s of t he depositi ons of B rown, Cana da, and Kilzer. I n

a dd iti on , Br ow n s ub mit te d p ho tog ra ph s o f the ste ps take n s e ve ra l mo nth s a ft e r the a c c ide nt.

In her deposition, Brown testified that she did not see a dip in the steps when she w as walking on them. When she fell, she c laimed, she turne d and saw a “dip” or a “ bow” in the se cond step. Whe n asked w hether it was possi ble t hat her fall caused the dent in the step, Brown said that it was not possible because she we ighs only 103 pounds and her fa lling on the step could not have

cause d such a dent. Brown also testified that she had a conver sation with school superintendent John Pipkin (“Pipki n”) soon a fter her acc ident, and that she told Pipki n that she saw a dip in the step. She didno t r e c a ll h a vin g a

c on ve rs a tio n w ith Pr inc ipa l K ilz e r a bo ut the inc ide nt, nor di d she r e c a ll telling anyone that the f

all occur red be cause the steps wer e slippery.

Ma int e na nc e Sup e rv iso r Ca na da te sti fi e d tha t he an d his sta ff ins pe c te d the Che ste r C ou nty Hi gh Sc ho ol f

oo tba ll s ta diu m be fo re the ja mbo re e

. On e of his a ssi gn e d tas ks wa s to che c k th e ste ps , make sure the bolts in the s teps wer e in place , and ensur e that eve rything was in good, safe working order . Canada

said that he persona lly wa lked up and down the steps befor e the ga me, and he did not

se e the de nt in the se c on d s te p u po n w hic h Br ow n f e ll. He a sse rt e d th a t th e ste ps loo ke d th e sa me befor e the jambor ee a s after the jambore e, and that he saw nothing wrong with the s tep t hat Brown-5-

said caused her fall. Despite the fac t that he believed t hat not hing was wrong with the step, Canada repla ced it in ac corda nce w ith the instructions of school superintende nt Pipki n.

P ri n ci pal Kilzer

testified that the land on whic h the football stadium sits is owned by the School Board, and that the School Boa rd is r esponsible for maintaining the property. He did not see Brown fa ll, but he was later told a bout it. The following wee k, Brown ca lled him to inform him t hat she wa s injured on the steps of the stadium and indicated that the steps we re slick. Kilze r cla imed that, i n the ir c on ve rs a tio n, Br ow n did not re fe r t o any da ma ge to the ste p. Th e su pe ri nte nd e nt t old Kilzer that the step on which she fell was bent. Kilzer was of the opinion that Brown’s fall ca used the dent. Kilze r said that the step w as re place d in October 2005.

Vi e wi ng a ll o f this e vid e nc e in the lig ht m os t f a vo ra ble to B ro wn , w e mus t c on c lud e that it is sufficient to c reate a genuine issue of materia l f act rega rding whether the School Board had a ctual
or construc tive notice of the danger ous or def ective c ondition

, i .e., the de nted step, that caused or

con trib u te d to Br o w n ’ s in ju r ie s

. T h e p h o to g r ap h s o f th e s te p , s u b mi tt e d a f te r th e hear ing and

c on sid e re d b y th e tr ia l c ou rt , s ho we d th a t t he st ep was , ind e e d, de nte d. W hil e the te sti mon y is conflicting, Brown’s te stimony supports an inferenc e that the de n t i n t h e s t ep existed prior to the

acc ident, and that her fall i n and of itself did not cause the dent. Canada claimed that the ste p was not be nt be fore the game, but he also testified that the step was in the sa me condition both before and afte r the football game. From a ll of this e vidence

, a re asonable trier of fac t could infer that the step was be nt before the game, e ven if Cana da did not see it or sa w it but did not perceive it to be a danger ous condition. Under these circ umstances, a rea sonable trier of fact could find that Canada had ac tual or construc tive notice of the defe ctive or dangerous condition from his inspection of the premises prior

to Brown’s fa ll. Under these circ umstances, we must re spectfully conclude that the trial court e rre d in granting summary judgment to the School Boa rd base d on the lack of

evidenc e that th e Sc ho ol B oa

rdha d a c tua l or

c on str uc tiv e no tic e of the de nt i n th e ste p p ri or to B ro wn ’s fa ll.

Brown also ar gues that the trial c ourt er re d in concluding that the School Board r etained
go ve rn me nta l im mun ity fo r any a lle ge d f a ilu re to make a n ins pe c tio n or fo r makin g a n in a de qu a te inspection of the pr operty. The statutory immunit y provision at issue is Tennessee Code Annotated § 2 9- 20 -2 05 (4 ), wh ic h p ro vid e s:

Im mun ity fr om s uit

of a ll g ov e rn men tal en tit ie s is re mov e d f or inj ury p ro xim a te ly

c a us e d b y a

ne gli ge nt a c t or

omi ssi on of

a ny e mpl oy e e wi thi n th e sc op e of his

e mpl oy me nt exce

pt if the in

jury arises out of:

. . . (4) a f

ailur e to make an inspection, or b y r ea s on of makin g an inadequate or n egligent ins pection of any property . . . .

Tenn. Code Ann. § 29- 20-205(4) (2000) ( emphasis adde d).

Citi ng Haw ks v
. City of

We stm or e lan d, sup ra , Bro wn arg ue s th a t th e Te nn e sse e Sup re me Court has found government entities immune under this section only when the inspection took place
on property not owned by the entity. See Hawks , 960 S.W.2d at 16. In Ha wks

, t h e plaintiffs suffe red a fire at their reside nce. When the firef ighters on the s cene exhauste d the wate r supply on-6-

their truck and attempted to use two near by fire hydrants t o help dous e the fire, the hydrants did not work. As a result, the pl aintiffs’ home was a lmost t otally destroyed by f ire. Id. at 12. The pla intiffs sued the c ity under the GLT A, Tenne ssee Code A nnotated § 29-20-204, claiming that the city had

a statutory duty to inspect the fire hydrants eac h year and failed to do so. The city ar gued that it was immune from sui t based on Sec tion 29-20-205(4), quote d above. T he Supreme Court rejec ted the city’s ar gument, holding that the governmenta l entity could be he ld liable under Sec tion 29-20- 204(b), de spite the language in Section 29-20-205(4)

, if the entit y has a duty to inspect t he prope rty. The Court re asoned:

Th e City c on te nd s th a t ba sin g th e fi nd ing of c on str uc tiv e no tic e up on its failure to inspect the hydra nts is error be cause governme ntal immunit y is not waived for injuries a

rising “out of a failure to make an inspection, or by re ason of making a n inadequ at e o r n eg l i g en ti n s p ec t i o n o f a n y p ro p er t y

. ” T en n

. C o d e A n n

. § 29-20-205( 4) (1980 Repl. & Supp. 1997). We disagree

. Section 205(4) provides immunity from suit whe n a g ov e rnme nta l enti ty ne gli ge ntly fa ils to dis c har

ge an ex ist

ing dut y to insp e c t pr op e rty not

owne d b y the City , and ther eaf

ter, injuries a

rise fr om danger ous or def ective conditions on such property w hich would have be en discove red ha d the
governme n t al entit y conducte d an ade quate inspec tion. In evaluating whether a plaint if f m a y e sta

bli sh c on str

uc tiv e no tic e un der S ectio n 2 04 by pr oo f that a governme n t al enti ty failed to ade quately discha rge its duty to inspect, we a re not bound by Section 205(4) whic h provides immunity from s u i t for injuries r esulting fr om “ a failu re to m ake a n in sp e c ti on , or by re a so n o f m akin g a n in a de qu a te inspection.” Any authority to the contrary is hereby ove rruled. Section 204, upon which the plaintiffs in this case rely, clearly prov ides that a governmental entit

y is subject to suit for i nju ries that result from a dangerous or defe ctive c ondit i o n ex i stin g on publ icly owned and controll ed property or imp ro v e me nts i

f t he go v ernme nta l e ntit

y has ac tua l or

c ons truc tiv e notic e of

the

c ond iti on. Proof that a governmental entity failed to a dequate ly inspect property or improvements which it owne d and contr olled is directly re levant to the question of whether it ha d constructive notice of the danger ous or def ective c ondition resulting in injury. To hold as t he C ity suggests, and preclude the plaintiffs from esta blishing constructive notice under Sec tion 204(b) . .

. would have the eff ect of requiring pr oof of ac tual notice in eve ry ca se. Such an inter pretation is contra

ry to the plain language of Section 204 which a llows a rec overy upon a showing of eith er actual or

c on str uc tiv e no tic e . The re fo re , ba sin g th e fi nd ing of c on str uc tiv e no tic e in this c a se upon the plaintiffs’ pr oof that the Ci ty failed to inspect the fire hydr ants is not error

.

Id. at 16 (e mphasis added; footnote omitted). Thus, the C ourt held t hat s ection 29-20- 205(4), whic h does not waive governme n tal immunit y for liability from negligent inspec tion, applies when the
property at issue is not owned by the gove rnmental e ntity and an inadequate inspection (or failure to conduct an inspe ction) causes injury. Section 29-20-204( b), on the ot her hand, applies whe n the
property in question is owned and controlled by the govern m en t al entity, and the governmental

e nti ty w ou ld h a ve kn ow n o f the da ng e ro us or de fe c tive c on dit ion ha d it c on du c te d a n a de qu a te inspection. Id.-7-

Hawks is directly applica ble to the ca se at ba

r. He re, materia l ev i d ence shows that the Sc ho ol B oa

rdow ne d a ndc on tr oll e d th e pr op e rt y o n w hic h Br ow n w a s in jur e d. “P roo f that a governme ntal entity failed to ade quately inspec t pro p er ty or improvements which it owne d and controlled is direc tly releva nt to the question of whethe r it had construc tive notice of the danger ous

or defe ctive condition re sulting i n injury.” Id. Under such circ umstances, whe n a plaintiff is see king

rec overy f rom the governmental entity that owns and c ontrols the prop e r typ u r s uant to section 29-20- 204(b), se ction 29-20-205( 4) does not provide immunit y from sui t arising from “ a failure to make an inspec tion, or by rea son of m aking an inadequate i nspection.” Tenn. Code Ann. § 29-20-205( 4). There fore , we must respe ctfully conclude that the t rial court erre d in holding that the School B oard

wa s im mun e fr om s uit

pu rs ua nt to se c tio n 29 -2 0- 20 5( 4) a ndin g ranti ng su mma ry jud gme nt o n th is basis.

Th e de c isi on of the tr ia l cou rt is re ve rs e d an d re ma nd e d. Cos ts o n a pp e a l are to b e ta xe d to Appellee Chester County School District, for which e xecution may issue, if ne cessa ry.

___________________________________ HOLLY M. K IRBY, JUDGE