# FILED
June 16, 1998 Cecil W. Crowson Appellate Cou rt Clerk ELAINE FAGG and THOMAS FAGG, ) Franklin Circuit ) No. 8818 Plaintiffs/Appellants

, )

) VS. ) ) COUNTY OF FRANKLIN, ) Appeal No. ) 01A01-9710-CV-00589 Defendant/Appellee. )

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

THE CIRCUIT COURT OF FRANKLIN COUN

TY AT WINCHESTER, TENNESSEE HONORABLE THOMAS GRA HAM, CHANCELLOR
Michelle M. Benjamin, #0012377 P.O. Box 177 Winchester, Tennessee 37398 ATTORNEY FOR PLAINTIF FS/APPELLANTS Ben P. Lynch, #003246 LYNCH, LY

NCH & LYNCH P.O. Box 310 Winchester, Tennessee 37398 ATTORNEY FOR DEFENDANT/APPELLEE
REVERSED AND VACA TED

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR: BEN H. CANTRELL, JUDGE WILLIA M C. KOCH, JR., JUDGE-2-

ELAINE FAGG and THOMAS FAGG, ) Franklin Circuit ) No. 8818 Plaintiffs/Appellants

, )

) VS. ) ) COUNTY OF FRANKLIN, ) Appeal No. ) 01A01-9710-CV-00589 Defendant/Appellee. )



## O P I N I O N
This suit arises from theinjury of a pede strian by step ping into a h ole in or nea r the edge of the paved

county roa

d. The Trial Judge

rendered summar

y judgment i

n favor of the co

unty on the ground that the county owed no duty to a pedestrian.
The facts, as found by the Trial Judge, are: 1) The plaintiff, Elaine Fagg, was allegedly injured when she fell after tripping on

a pothole located on the edge of the county roadway known as the U T Farm Road. 2) The UT Far m Road is a county maintained road constructed

of a tar and chip surface with nar row to nonexistent shoulders. 3) The Franklin County Road Department does

not build or mai ntainsidewalks or areas designated for pedestrian traffic along this or any other county road. 4) The UT Farm Road is des igned for vehic ular traffic and lies in a sparsely populated area. 5) Thereare no records in the Franklin County Highway Department

indicating any

problem with the UT Farm Road other tha n a stopp ed culvert in an unrelated location. There are further no known complaints that havebeen r egistered regarding t he subject pothole, either verbally or otherwise, pri or t o th e dat e of p lai nti ff’s inj ury. 6) The pothole giving rise tothe claim herein measured approximately

twelve (12) inch

es w ide and six (6) inches deep and was located on the edge of the tar and chipped surface. Grass was allowed to grow in and around the outside edge of the pothole. 7) Plaintiff

was injured when she t

ripped while

stepping off the surface to allow a vehicle to go by. (R. 148-149).-3-

Appellants Issue:

I. Whether

the trial court er

red in holding tha

t immunity was not removed under T.C.A. § 29-20-203 be cause the defendant had no duty to maintain the county road in a reasonably safe condition for pedestrian use. Appellee’s Issues:

1. Wh et her

the trial court was correct in granting the defendant-app

ellee’s motion for

summary judg

ment. 2. Whether

the defendant-appellee had constructive and/or act ual not ice of an y d efective, unsafe or dangerous condition existing in the UT Farm Road as alleged as required by T.C.A. § 29-20-203(b).
The record cont

ains evidence of

the following fa

cts: The injury occu

rred on Universi

ty of Tennessee Farm

Road, which is a paved road of the Franklin County pu

bl ic road system which is used by both vehicles and pe destrians. It has narrow, grass covered shoulders and no sidewalks. As plaintiffs were walking along the road, Mrs. Fagg stepped “to the side of the road,” her foot caug ht in a hole 12 inches wide and si x inches deep. Grass in the area was tall and had fallen across the hole and obscured it from view. The Road Commissioner w as aware of grass growing 4 or 5 feet tall on the subject road a t various times and “would not be surprised” to hear that people walked on the road in question, butinsisted that country

roads were built

for vehicles and not for people. He admitted that the County had a duty

to keep the grass and weedsmowed on county roads and to keep

the roads in a reasonably safe condition for vehicular travel, but not for pe destrian use.
T.C.A. § 29-20-203

reads as follows: (a) immunity from suit of a gove rnmen tal entity is removed f or any injury caused by

a defective, unsafe or dangerou s 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. (b) This section shall not apply unless constructive and/or actual notice to the governmental entity of such condition be alleged and proved in addition to the procedural notice required by § 29 -20-3 02. [Acts 1973, ch. 345, § 8; T.C.A. § 23-3309.]-4- The quotedstatute makes no di stinction between

vehicular and pe

destrian use

of public roads. It does require notice of a particular defect, but notice may be inferred f rom the facts and circumstances of each case. The lack of a record of complaints is mere ly one of many circumstances to

be considered by

the finder of fa

ct.

In Helton v. Knox County , Tenn. 1996, 922 S.W.2d 877, a motorist lost his life when he
ran his vehicle off a one-lane, single arch stone bridge built in 1895 in a hilly, sparsely inhabited
area and was li ttle used. The approach to the bridge included a railroad crossing and two 90 degree curves. A sign on the

approach read: “Warning

- One Lane B

ridge Ahead,”

and “paddle boards”contin

ued the warning, an

d reflective pa

int marked the edg

es of the road. Th

e only defect alleged was the absence of guard rails which were not requ ired when th e bridge was built, butwere sta nda rd at the tim e of t he i nju ry. The Supreme Court held that the installation of guard rails on a county roadway wa s a “discretionary function that involves public p o licy consideration” and that “governmental immunity is preserved under Tenn. Code Ann. § 29-20- 205(1) as we ll,” citin g Bowers v. City of Chattanooga , Tenn. 1992, 826 S.W.2d 427.

Because of the wide difference between the absence of guard rails on a century old, onelane bridge and paved highway overg rown with vegetation hiding a pothole 12 incheswide and 6 inches deep, the

quoted authority

is not deemed to be d

eterminative of t

he present appe

al.

It has been held that a p

ublic road author

ity may not be held

liable for a minor variation
or “step-o ff” in a public road. However, no such holding has been found in reference to a pothole six inches deep and twelve inches wide. The very size of the hole is sufficient

to furnish a reasonable inf

erence as to the

duration of the de

fect.

Under the evidence summarized above, the question of whether the road in question was maintainedin a reasonably safe condition and whether the public authority had reasonable notice of an unsafe condition were issues of fact and should not have been foreclosed by summar

y-5-

judgment. Bryd v. Hall, Tenn. 1993, 847 S.W.2d 208. Dooley v. Evere tt , Tenn. App. 1990, 805 S.W.2d 380.

The right of the public to walk on a public road is well established. T.C.A. §§ 55-8-133- 139, prescribes th

e safe use

of highway

s by pedestr

ians. § 55-8-138(

b) refers spec

ifically to pedestrians where no sidewalk is provided.

In the absence of a statute or ord ina nce t o th e con tra ry, a pedestrian has the same right to use andtravel upon any portion of a public highway or street at any

time of the day

or night. 7a Am. Jr. Automobiles and Highway Traffic, § 13 p.540.

This Court holds that the evidence in this record is not so conclusive as to entitle the defendant to judgment as a matter of law.

The judgment

of the Trial Court is reversed and vacated. Costs of this appeal are taxed against the defendant. The cause is remanded for appropriate further proceedings.

REVERSED AND VACA TED

_________________________________ HENRY F. TODD PRESIDING J UDGE, MIDDLE SECT IO N

CONCUR:

_____________________________ BEN H. CANTRELL, JUDGE

_____________________________ WILLIA M C. KOCH, JR., JUDGE-6-