# FILED
October 14, 1998 Cecil W. Crowson Appellate Cou rt Clerk LINDA CHIP RIGBY GARRARD, ) Davidson Circuit ) No. 96C-2597 Plaintiff/Appellant, ) ) VS. ) ) METROPOLITAN GOVERNMENT ) Appeal No. OF NASHVILLE AND DA VIDSON ) 01A01-9803-CV-00117 COUNTY, ) ) Defendant/Appellee. )

IN THE COURT OF AP PEALS OF TENNESSEE AT NASHVILLE APPEAL FROM

THE CIRCUIT COURT OF DAVIDSON COUNTY AT NASHVILLE, TENNESSEE HONORABLE WALTE R C. KURTZ, JUDGE

Kenneth M. Switzer, #5785 John B. Carlson, #4754 WILLI AMS & ASSOCIAT

ES, P.C. Suite 1425, First American Center 315 Deaderick Street Nashville, Tennessee 37238-1425 ATTORNEYS FOR PLAINTIFF /APPELLANT Thomas G. Cross, #14810 204 Metropolitan Co

urthouse Nashville, Tennessee 37201 ATTORNEY FOR DEFENDANT/APPELLEE,

MODIFIED, AFFIRMED AND REMANDED.

HENRY F. TODD, JUDGE

CONCURS: BEN H. CANTREL

L, PRESIDI

NG JUDGE, M.S. WILLIA M C. KOCH, JR., JUDGE-2-

LINDA CHIP RIGBY GARRARD, ) Davidson Circuit ) No. 96C-2597 Plaintiff/Appellant, ) ) VS. ) ) METROPOLITAN GOVERNMENT ) Appeal No. OF NASHVILLE AND DA VIDSON ) 01A01-9803-CV-00117 COUNTY, ) ) Defendant/Appellee. )



## O P I N I O N
The plaintiff Linda Chip Rigby Garrard, has appe aled from a non jur

y ju dgment finding damages of $40,000 for per sonal i njury from a defective sidewalk maintained by Metropolitan Government of N ashvill e, and Davidson Cou nty (Metro) , but reducing sa id damages to $22,000 because of 45% contributory fault of the plaintiff.

The memorandum a

nd order of the Tr

ial Court states:

On August 16, 19 95 betw een the hours of 9 :30 p.m. and10:00 p.m. the pla int iff was walking on a cement sidewalk in a residential ne

ighborhood on Ke

ndell Drive in Nashvi l le when she stumbled o ver the edge of

a concrete sidewalk segment that

protruded uneve

nly two to three inches above the adjac ent segment. The plaintiff fell, suffered a broken wrist and v

arious other injur

ies.

- - - - The plaintiff

contends that the portion of the side walk was pretty much dark and that she simply could not see the unevenportion of the sidewalk. The Court finds that there was a street light almost directly behind the plaintiff as she proceeded

down the street. T

here was als o a s treet light d irectly in front of the pla

intiff. Both these

street lights bracketed the area in which she fell and bot h were approximately

100 feet in front of and behind the area of the fall. (See Exhibits 5, photo’s 1 an d 2). While the Court creditsto some degree the testimony that there were shadows on the sidewalk, the Court finds that the positioning of the street lights impeache

s the plaintiff’s descr iption of the lighting a nd convinces the Court that plaintiff has exaggerated the lack of lighting available. The plai ntiff does rely further on the testimony of a safety engineer, Charles Turnbow. His testimony can be simply summarized. Mr. Turnbow says that the raise in t he-3- sidewalk found in t

his case presents a hazard to a pedestrian andthat it was probable that a person would fall under th

ese circu mstan ces. It is doubtful if the test imony of an e

xpert is n eeded to tell the Court about the common experi ences o f walking and tripping. See T.R.E. 702. It seems that common experience has taught all

of us about walking and tripping on sidewalks. The Court, however, has considered the testimony of Mr. Turnbow.

- - - - If the fall of the plaintiff had take n place during daylight hours the results of this case woul d hav e been different. The Court is of the opinion that the sidewal k in question during night time h ours w as dangerous. While the p laintiff has exaggera

ted the inadequa

cy of the lig

htin g, th e Courtfinds that there w

as some impairment

of the ability

to see the defect in th

e sidewalk and that the Metropolitan Government

was negligent. T

he Court further fin

ds, however, that the plaintiff was also negligent in her failure to keep a proper lookout a

nd that while t he lighting in the area was diminished, the lack of lighting and the presence of shadow s is not the sole cause of this accident. The plaintiff was also at fault for failure to keep a proper l ookout un der these conditions. Appellant prese

nts the following i

ssues:
1. Whether

the trial court abused its di scretion in admitting Exhibit 10, an unauthenticated photograph, i nto evidence. 2. Whether

the evidence pr

eponderated ag

ainst the trial co urt’ s finding that Chip Garrard was forty-five percent at faul

t in the August 16, 1 995 accident. Metro presents th

e following issue

s:
1. Should

the trial court h

ave dismissed Garrard’ s claims at the close of her p r oof under the Tennessee Governmental Tor

t Liability Act? 2. If Garrar d’s claims were n ot subject to dismissal, did the trial court properly allocate fault among the parties based on t

he proof at trial?-4-

Appellant’s First Issue: Exhibit 10.

Unless an exhibit is self-authenticating (and a picture is not), it must be identified by competent

testimon y as illustrat ing a fact relevan t to the controversy. The record contains no such testimony as to Exhibit 10. The plaintiff expres sly testi fied, without contradiction, that Exhib it 10 did not accurately portray w hat could and could not be seen on the occasion of her inj ury.

The brief of Metro does not discuss this issue.
By comparison with other pictures in therec ord, it may be reasonably

inferred that it represents

the same scene as the other pictures, but it sho

uldnot be considere

d for the purpose for which it was offered, i.e. to show what was and was not visible on the n ight of plaintiff’s inj ury. The foregoing governs the consideration of said exhibit by this Court in reviewing the evidence de novo as provided by T.R.A.P. Rule 13(d).
Appellant’s Second Is

sue: Percenta

ge of Fault
.

The Trial Court

found that the location of plaintiff’s fall was lighted by two stree

t lights. There is n o ev ide nce a s to the ir e xac t lo cat ion or d ist ance fro m th e si te o f injur y except th e testimonyof plaintiff that both were on the opposite side of t he st reet and one was behind her andone was in front of her. She testified without contradiction that the area was not pitch dark, butthat there were “strang e shadows” in the a

rea. This Court inte

rprets this testimony to mean tha tsome obstruction su

ch as trees prev

ented the street

lights from illumina

ting the sidewal k uniformly so

that some spots wer

e lighted and some

were not.

The Trial Court determined that plaintiff was at fault in failing to keep a

proper lookout. If her undisputed testimony is to believed, it wasimpossible to keep a proper lookout as to that-5-

part of the sidewalk where the shadows were. This would raise the question of the duty of the plaintiff to w an der about looking for a safe, well lighted path for her passage, lea ving the sidewalk when ne

cessary to walk in the light.

The gene ral rule is that a citizen walking along a street does not have to look at the pavem entcon sta ntl y - he m ay pre sum e th at t he ci ty ha s pe rfo rme d it s du ty. Buford v. City of Clarksville , Tenn. App. 1994, 885 S.W.2d 78.

The allocation of

fault involves the reasonableness of the conduct of the injured party and that of the defendant. Eaton v. McClain , Tenn. 1994, 891 S.W.2d 587.

On April 27, 1995, 111 days before plaintiff’s injury, Metr o was notified of the defect in the sidewalk which had not been corrected when plaintiff was injured.

The allocation of percentage of fault requires consideration of Coln v. City of Savannah , Tenn. 1998, 966 S.W.2d 34 whe rein the Supreme C

ourt revised the o

pen and obvious rul

e to place an additional burden upo n th e controller of the injury scene to avoid injury of a person exercising ordinary prudence.

The evidence preponderates against the finding that plaintiff was 45% at fault in the pro duc tio n ofher i nju ry.

The grievous fault of Metroin delaying 111 days in r

epairing a dan

gerous defec

t in its sidewalk constituted 75% of

the fault producing plaintiff’s injury and plaintiff’s oversight was 25% of the faul t pr odu cin g her inj ury. The jud gmen t of the Tri al C our t is mod ifi ed ac cord ingl y.-6-

Defendant’s First

Issue: Failure t

o Dismiss
. Metro cites a por

tion of T.C.A. § 29-2

0-203 reading a

s follows: Immunity from su it of

a governmental entity is removed for any injury caus

ed by a def

ective, unsa

fe or dangerous condition of any street, alley, sidewa lk or highway owned and con tro lle d by s uch gove rnm ent al e nti ty.
Metro ar gues that the for egoing is in der

ogation of common

law and must be st

rictl y construed, citing Helton v. Kno x County , Tenn. 1996, 922 S.W.2d 877, which involved an al lege dly dangerous bridge. That authority stated that the standard of care is one of reasonable ness, citi ng Swain v. City of Nashville , 170 Tenn. 99, 92 S.W.2d 405 (1936), which statedthat the duty

of ordinary

care to maintain

a reasonable safe condition for users exercising reasonable care.

A municipa lity is li able when the obstruction is a danger from which injury might be reasonably

anticipated. City of Memphis v. McGrady , 174 Tenn. 162, 124 S.W.2d 248 (1938). In the cited case, t

he Supreme Court a

ffirmed the dismiss

al of a suit

based upon a 2 1⁄2 inch difference

in level of adjoining sections of a sidewalk where the inj ured party struck her heel upon the projection of the sidewalk in daylight. Also, the cited authority stated: We have no statute measuring the liability of municipalities for injury resulting from defects in

sidewalks. This case is to be determined by refer ence tothe common law.
In the present case the special sircumstances of darknessrelieved by only partial illumination distinguish the authorities based upon observation in daylight. A 2 1⁄2 inch “step up” which would be readily visible to an ordinarially prudent pe destrian in daylight

might not be noticed by the same pedestrian when obsured by shadows at night.

If was not error for the

Trial Judge t o fail to dismiss plaintiff’s suit for contributory negl igen ce or lac k ofevi den ce of negl igen ce of the cit y.-7-

Defendant’s Second Issue: Percentage of Fault.
This issue has already been determined in disposing of plaintiff’s second issue.

The judgment of the T

rial Court is modifie

d to reduce the pe

rcentage of p

laintiff’s fault to 25% and to increa

se the amount of the

judgment to $30,00

0. As modif

ied, the judgment is affirmed. Costs of this a ppeal are taxed to the appellee. The cause is remanded to the Trial Court for further proceedings in conformity with this opinion.



### MODIFIED, AFFIRMED AND REMANDED

.

___________________________ HENRY F. TODD, JUDGE

CONCUR:

___________________________ BEN H. CANTREL

L, P.J., M.S.

___________________________ WILLIA M C. KOCH, JR., JUDGE