# FILED

Novemb er 1, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk

DAVID F . BUSH, ) ) Williams on County Ci rcuit Plaintiff/Appellant, ) Case No. 92530 ) VS. ) ) BRENDA L. A LLGOOD and ) Appeal No. MERCANTILE PROPERTIES, INC., ) 01A01-9605-CV-00207 ) Defendant/Appellee. )

IN THE COURT OF AP PEALS OF

TENNESSEE MIDDLE SECT ION AT NASHV ILLE APPEALE D FROM T HE CI RCUIT COURT OF WILLIAMSON

COUNTY, TENNESSEE HONORABL E HENRY DE NMARK BELL, JUDGE William B. Bradley Peach Court Bldg., Suite 210 7105 Peach Court P.O. Box 1223 Brentwood, Tennessee 37024 ATTORNEY FOR PLAI

NTIFF/APPEL

LANT Thomas I. Carlton, Jr. Dani el P. B erexa Cornelius & Collins Suite 2700 Nashville City Center 511 Union Street Nashville, Tennessee 37219 ATTORNEY FOR DEFENDANT/APPEL LEE 

### REVERSED AN

D REMANDED
HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION
CONCUR: SAMUEL L . LEWIS, JUDGE, BEN H. CANTRELL , JUDGE,-2-

DAVID F . BUSH, ) ) Williams on County Ci rcuit Plaintiff/Appellant, ) Case No. 92530 ) VS. ) ) BRENDA L. A LLGOOD and ) Appeal No. MERCANTILE PROPERTIES, INC., ) 01A01-9605-CV-00207 ) Defendant/Appellee. )



## O P I N I O N

The Tria l Court gr anted sum

mary judgeme nt dismissing one of

the defe ndants, Mercan tile Prope rties, I nc., and ordere d entry

of final p artial ju dgment p ursuant t o T.R.C.P. Rule 54.02. Pla

intiff ha s appeal ed. The r emaining defenda nt, Bre nda L . Allgoo d, is not inv olved in this appe al.
Plaintiff sued for personal injuries and property damages sustained in the collision of a motorcycle ope

rated by plaintiff a

nd an automobile operated by Brenda L. Allg ood.

The collision occurred in Brentwood at the intersection of Chadwic k Drive and Centerview Drive, where a

stop sign requires vehicles approaching the intersection on Chadwick Drive to stop andyield the rig

ht of way to traf

fic on Centerview Drive. Traveling e astward on Chadwick

Drive, plaintiff entere d the inte

rsection and was s truck by

the Allg ood vehic le trave li ng in a southward direction on Centerview Drive.

The defendant appellee, Mercantile Proper ties, Inc., was the owner of prop erty

at the northwest corner of the intersection.

The complain

t alleg es that be

fore en tering the inter section, plaintiff stopped, l o oked f

or traffic on Centerview, and

saw none because his vision was obstructed by vegeta tion on the

propert y-3-

of Mercantile; and that heprocee ded intoCenterview where he was struck by the vehicle operated by Ms. Al lgo od. The co mplaint al so alleg es that a ppellee neglig ently

maintained its prope

rty adjoining the inter section in

violation o f T.C.A. § 39-17-307 as follo ws: Obstructing highway or other passageway . (a) A person commits an offense who, without legal privilege , in te nt io na ll y, k no wi ng ly o r r ec kl es sl y: (1) Obstructs a highway , street, sidewalk, railway , waterway , elevator, aisle, or hallway to which the public, or a s ub st an ti al po rt io n o f t he pu bl ic , h as ac ce ss ; o r a ny other place used for the passag e of persons, vehicles or conveya nces, whether the obstruction arises from the person’ s acts alone or fr

om the per son’s acts and the acts of others; or . . . (b) For purposes of this section, “obstruct” means to render impassab le or to re

nder pas sage u

nreason ably inconvenient or potentially injurious to persons or propert y . (Emphasis added.)
On September 14, 1995, appellee filed a motion for summary judgment. On November 3, 1995, plaintiff filed a response to the motion for summary judgment in which, for the first time, he relied upon Ordinances 12-103 and 11-210 of the City of Brentwood.

The record does not disclose the date of the hea ring, but the order granting summary judgment, entered on November 14, 1995, contains a r eference to the two city

ordinances mentione d in plainti ff’s re sponse to t he motion f

or summar

y ju dgment.

The evi dence i nclud es the follo wing:
The affidavit of the vice mayor of Brentwood asserts that the paved surfaces of Centerview andChadwick Drives are each in the ce nter of a 60 foot wide dedicated right of way

for maintenance of which the city has a

ccepted and

exercises responsibility and that at lea st 10 feet of unpaved right of way exists on ea

ch side of both pave

ments.-4- The affidavit of Robert P. Murphy, a registered land surveyor and transportation engineer states that he surveyed the scene of the collision, located the edges of the pavement and the edges of the rights of way

adjoining appellee’s’s propert y a nd express ed his opinion that any obstruction to plaintiff’s vision while he was stopped at the stop sign was located on the public right of way

and not the property of a

ppellee.

The affidavit of Doug Jones, landscaper for the defendant-appellee, stated he mowed the propert y of defendant appellee out to the pavement, but he frequently found it unnecessary

to mow a 25 or 30 foot wide strip adjacent to the pav ement of

Chadwick

and Cente

rview Dr ive beca use it had been previously

mowed.
The testimony of

the defendant, Allgood, was that, as she approa ched the intersection she
was able to see plaintiff “sitting at the white line,” that nothing obscured her vision of

plaintiff and that she saw him move forward into the intersection, but was unable to avoid the collision, and that there was no obstruction of her vision.

The plaintiff testified that he stopped “behind the stop line” and then m oved for ward some distance for a better view without entering the pave ment of Centerview Drive. He further testified; Q. What did you do once y ou stopped that second time where you’ ve marked on Exhibit 17? A. I looked to the left, looked to the right, ba ck to the left. Q. And to the left would be North. A. (Witness nods head in the affirmative.) Q. When you looked to the left the first time, did you see any vehicle s? A. No. Q. Th en you lo ok ed to th e r ig ht , d id you se e a ny vehicles at that time?-5- A. How about when y ou looked to the left again? Q. No. A. Then you beg an to proceed out into the intersection. Q. Correct
. A. Did y ou ever s ee the ve hicle tha t Ms. Allg ood was driving prior to th

e accid ent? Q. No. Th e grass w as so h igh I coul dn’t s ee anythi ng co mi ng up th at wa y. A. So yo

u never s aw it bef

ore the impact. Q. I sa w i t w he n I w as ou t i n t he mi dd le , yo u k no w, my bike was halfway

across the lane.
On November 14, 1995, the Trial Court entered summary judgment dismissing Mercantile.

On January 5, 1996, plaintiff moved the Tria l Court for leave to am end the c omp laint to allege violations of Ordina nces 12- 103 and 11 -210 of th e City of Brentwood. On January 8, 1996, plaintiff filed the following motion:

MOTION TO AMEND ORDER OF FINAL JUDGMENT AS TO MERCANTILE PROPERTIES, INC. Plaintiff

moves the

Court to am

end the Order of

Final Judgement as to Mercantile Properties, I nc. To allow for an interlocutory a

ppeal by Plaintiff or, in the alter native, to order that the trial in this case be set following the final disposition

of the ap peal on th e grou nd that it isin the bes t interests of all the parties and the Court that all matters be resolved in one

trial ra ther tha n possibly

two trials
. On February

9, 1996, the Trial Court entered the following order:

ORDER Plaintiff’s Motion to Amend the Complaint and Motion to Amend the Court’s Order Granting Summary Judgment to Defendant Mercantile having come on to be heard before the Honorable Henry

Denmark Bell, Judge, on the 29th day of January, 1996, and it appea ring to the Court from the record and from arguments of c ounsel that Plaintiff should be allowed to amend the Complaint to conform to the record, that the Order of the Court gr anting Summary-6- Judgment to Defendant Mercantile should not be amended. It is, therefore, ORDEREDthat: 1. Plaintif

f’s Motion

to Amend th

e Complain

t is granted; 2. Plaintiff’s Motion to Amend the Summary Judgment granted to Defendant Merca ntile is denied. On appea l, plaintif f prese nts a single issue a s follows: Do the ordinances of the City of Brentwood, which impose a duty on defe

ndant Mercantile to not obstruct vision or view for the safety of vehicles, apply

to that portion of landowner’s property subservient to an ea se me nt? The appe llee pre sents an a

dditional i ssue in the

following

form: The Trial Court erred in allowing the post-judgment amendment to the complaint adding allegations that Mercan tile had violated City o f Bren twood ord

inances
. Surprisingly, appe

llant has not seen fit to reply to the issue stated a nd argued by

appellee.

T.R.C.P. Rule

15.02 pro vides in pe

rtinent pa rt as foll ows: Amendments to Conform to t he Evidence . When issues not raised b y the pleadi

ngs are tried by express or implied consent of the parties, they shall be treated in all res pects asif they

had bee n raised in the ple adings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may

be made u

pon motion o f any

party at any time, eve n after judgmen t. Appellee does not argue that it was denied a fair oppor tunity to litigate the eff

ect of the ordinance upon therights o f the par ties. I t appears that the i ssue of the effe cts of these ordinances
was discussed and decided by the Trial Court, and that appellee was not prejudiced by the belated allowanc e of the a

mendment
.

The appella

nt insists th at the Tr

ial Court w as in err

or in holding appe

llee had no duty to-7-

prevent obstruct ion on the d

edicated right w ay

easeme nt.

The summa

ry judgmen t states: Mercantile contends that the right of way for the two roadway s was owned by the City of Brentwood a

nd that the right of way

for eac h road is s ixty f

eet wide , that is to say, thirty

feet from the center line of eac h road. The right of way

dedicated to the City of B rentwood includes a portion of the fie

ld which islocated

at the nor

thwest corner of the intersection of Centerview Dr ive and Chadwick Drive and exceeds the right of way a distance in excess o f ten fe et. The City o f Bren twood is re sponsible for and does maintain and cut the vegetation in these rightof-way s including the portion of the field on the subject northwest corner. (Affidavit of L ouis J. Baltz). The weeds blocking the view of the plaintiff were within the rig ht of way dedic ated to Brentwood and plaintiff cannot show that weeds bey ond the right of way made any diff

erence. All evidence concerns weeds which we re in the right of way. Defendant Mercantile contends that the evidenc e does not show a

duty owned by

Mercan tile in con

nection with the obstructing weeds and also that the presenc e of the weeds was not a proximate cause of the collision. As a answ er to this c ontention , plaintif f exhibits ordinanc es of the

City of Bre ntwood asfollows: 11-210. Obstruction to vision at street intersection prohibited . O n a co rn er lo t w it hi n t he ar ea fo rm ed by the center lines joining points on such center lines at a distance of ninety ( 90) feet from their intersection, there shall be no obstruction to vision between a height of three and one- half (3- 1/2) fe et and a he ight of ten ( 10) fee t above the average grade of each street at the center line thereof. The requirements of this section shall not be construed to prohib it any

necessa ry retaining wall. 12-103. Trees, etc., obstructing view at intersection prohibited . It shall be unlawful for any property owne

r to have or maintain on his prope rty any tr ee, shrub , sign or other obstruction which pr events pe rsons dri ving ve

hicles on public streets of alley s from obtaining a clear view of traffic when approaching

an intersection. (Emphasis added) It is th e duty of this Cour

t to constr ue these ordinanc es, if possible, in such a way a s to not put them in violation of State law. We have seen above that the City of Brentwood ha s t he du ty u nd er St at e l aw to ma na ge it s r ig ht of wa y propert y in such a ma

nner as t o not perm

it obstructions to-8- visibility of drivers of motor vehicles. The City cannot by ordinance avoid this duty by shifting it to someone else. Therefore the ordinances apply to owners of land adjoining the city’s rig

ht of way but not to the rig ht of way itself. The Court concludes that the defendant Mercantile did not have a duty to plaintiff the cut the vegetation growing upon the right of way

which blocked the vision of operators of motor vehicles on the streets of Brentwood . (Emphasis supplied.) This Court respectfully disag rees with the holding of

the Trial Judg e that, because th e City has a duty to keep its rig hts of way

clear of obstructions, it may not impose the same duty upon abutting propert

y owners within its jur

isdiction. The dele gation o f this duty does not r elieve th e City of it s d ut y, b ut it do es im po se a d ut y up on th e a bu tt in g p ro pe rt y ow ne r i n a dd it io n t o t ha t o f t he Ci ty,
so that a person injured by violation of the duty of this City and that of a property

owner may ha

ve a right of action against either or both.

The City is not

named as a defendant in this case, nor doesthe appellee seek apportionment of pa rt of th e d am ag es ag ai ns t t he Ci ty.
Appelle e cites numerousTenness ee autho rities hol ding tha

t a municip ality

has a nondeleg able

duty to maintain its rights of way . Each of said authorities relates to a duty to construct
or maintain a sidewalk. The duty to mow veg etation between the pavement and the edge of the right of wa y is a d is ti ng ui sh ab le si tu at io n. No ne of su ch au th or it ie s h ol ds th at a c it y ma y not impo se a corresponding duty

upon an a

butting land owner, as to that part of the right of way which is not improved and is open for use of the owner.
Appellee cites Mispagel v. Highway & Transportation Commission , Mo. 1990, 785 S.W.2d 279, wherein the Court he ld that an abutting property owner could not be held liable for damage s resulting from uncut weeds absent evidence that the weeds were on that part of the proper ty of the
owner outside of the public right of way . In the present case , the city ordinance placed a duty

upon the property owner to keep the right of way clear of obstruction.-9- Appellee a lso cites Stevens v. Drekich , Mich. App. 1989, 443 N.W.2d 401, wherein the
owners of abutting property were held not liable for the presence of a tree within the right of

way on the theory of

nuisance where th e owner s “had no

right of possessio n to the area within the right of way.”In the present case , there is no evidenc e that the appelle e was in

any way excluded from the
area between the pavement

and the edge of the right of w ay. On the contrary , there is evidence that appellee’s landscaper was fre e to, and did on occasion, mow the area in question.

Under these circumstances the issue of liability of appellee was not a sui table sub ject of a summary judgmen t.

The judgement of the Trial Cou rt is r eversed and vacated, and the c ause is remanded for further proceedings. Costs of this appeal are taxed against the appellee.

REVERSED A ND REMAN DED

_____________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION
CONCUR:

_____________________________________ SAMUEL L . LEWIS, JUDGE

_____________________________________ BEN H. CANTRELL , JUDGE