IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

May 24, 2018 Session

LaSONYA ROBERTSON v. CLARKSVILLE-MONTGOMERY COUNTY 

SCHOOL SYSTEM

Appeal from the Circuit Court for Montgomery County

No. 15-CV-1954 Ross H. Hicks, Judge

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No. M2017-02492-COA-R3-CV

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This is a slip-and-fall case. A middle school teacher injured herself when she fell in the 

hallway outside her classroom on a wet floor. A custodian had been mopping the 

hallway prior to her fall, and the teacher alleged that the custodians had negligently and 

misleadingly placed wet-floor signs on the opposite side of the hallway, which did not 

warn her of the wet floor on her side of the hallway. Thereafter, the teacher brought suit 

against the school district pursuant to the Tennessee Governmental Tort Liability Act. 

Following a bench trial, the trial court found the custodians guilty of negligence and 

assigned seventy-five percent of the fault to the school district and twenty-five percent of 

the fault to the teacher. A judgment was entered against the school district in the amount 

of $180,000.00, after reduction for the teacher’s comparative fault. The school district 

appeals, contending (1) that it is immune from suit; (2) that it was not negligent; and (3) 

that any negligence it may have committed is outweighed by that of the teacher’s 

comparative fault. The teacher argues that the trial court erred in assigning any of the 

fault to her. We affirm in part and reverse in part. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in

Part, Reversed in Part, and Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which KENNY 

ARMSTRONG, JJ., joined. BRANDON O. GIBSON, J., filed a separate dissenting opinion. 

Kathryn W. Olita and Jamie K. Durrett, Clarksville, Tennessee, for the appellant, 

Clarksville Montgomery County School System.

William L. Aldred, Clarksville, Tennessee, for the appellee, LaSonya Robertson.

06/28/2018
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OPINION

BACKGROUND AND PROCEDURAL HISTORY

On September 29, 2015, Appellee LaSonya Robertson, an employee of the 

Clarksville-Montgomery County School System (“Appellant”) and a teacher at Rossville 

Middle School, filed a complaint against Appellant to recover damages for personal 

injuries she sustained when she fell in the hallway outside her classroom at the school on 

December 12, 2014. Ms. Robertson alleged that Appellant was liable under the 

Tennessee Governmental Tort Liability Act (“GTLA”) because the custodians had 

negligently mopped the hallway and misleadingly placed two wet-floor signs, and failed 

to warn her that the entire hallway was wet. See Tenn. Code Ann. § 29-20-307. 

On November 15, 2015, Appellant answered, denying that the custodians acted 

negligently. Furthermore, Appellant averred that it was immune under the GTLA. 

Appellant also argued that the water on the floor was “open and obvious” and asserted 

comparative fault as a defense. 

The trial court conducted a bench trial on August 29, 2017. Ms. Robertson, 

Norman Mitchell, Janet Willis, and Tommy Butler testified. Mr. Mitchell and Ms. Willis 

are custodians at the school, and they were present in the hallway when Ms. Robertson 

fell. Tommy Butler is the safety and health director for the school system. Ms. 

Robertson’s fall was captured on a surveillance video, and the video was made an exhibit 

at trial. Several photographs taken by Ms. Willis after Ms. Robertson’s fall were also 

introduced into evidence. 

Ms. Willis testified that on the day of the fall she had noticed water “tracked” in 

the hallway on the left side near the lockers, so she asked Mr. Mitchell to assist her in 

mopping the hallway. Mr. Mitchell testified that on the day of the accident, he had been 

assisting Ms. Willis because she was unable to mop due to a recent medical procedure. 

Mr. Mitchell and Ms. Willis testified that they had been trained, pursuant to Appellant’s 

written policy, to place wet-floor signs out whenever the custodians were mopping or 

noticed liquid on the floor. Mr. Mitchell testified that there was liquid on the floor 

around an area on the left side of the hallway, so he placed two wet-floor signs out on the 

left side of the hallway near the liquid and began mopping. Mr. Mitchell testified that he 

mopped the entire hall, including the right side, which abutted Ms. Robertson’s 

classroom, after he finished mopping the area between the signs where he had seen the 

spill. However, neither Ms. Willis nor Mr. Mitchell moved the wet-floor signs from the 

left side of the hallway where the signs were originally placed. Ms. Willis testified that 

she knew Ms. Robertson was in her classroom because they had spoken in her classroom 

around the time the hallway was being mopped but neither Ms. Willis nor Mr. Mitchell 

warned Ms. Robertson that Mr. Mitchell had mopped the entire hallway and not just the 

area on the left side of the hallway where Mr. Mitchell had placed the signs. 
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Ms. Robertson testified that on the day of her fall, the students had been released 

early, but the teachers were expected to stay for the rest of the regular work day. Ms. 

Robertson testified that shortly after 1:00 P.M., she exited her classroom to make copies 

for her class and attend a teacher’s meeting scheduled to take place at 1:30 P.M., when 

she immediately slipped on the wet floor in the hallway outside her classroom. Ms. 

Robertson testified that she was unaware that there was water on the floor until she fell, 

and she was unable to see into the hallway from where she had been working at her desk. 

Ms. Robertson testified that she was not in a hurry, and she did not see the wet-floor 

signs. 

Mr. Butler testified that the custodians attended an annual training session in 

which they were provided with a power-point presentation containing Appellant’s wetfloor sign policy. Mr. Butler testified that custodians are required to put out wet-floor 

signs anytime they mop to “make the workplace and school environment as safe as [they] 

possibly can for staff, students, and visitors.” Mr. Butler opined that the custodians in 

this case took reasonable steps to warn of the liquid on the floor in compliance with the 

written policy. 

On November 15, 2017, the trial court issued a Memorandum Opinion setting out 

its findings of fact and conclusions of law. The trial court found that the custodians did 

not place the wet-floor signs in such a way as to give Ms. Robertson adequate warning 

“that mopping had taken place or that the floor was wet in the area where she fell, 

particularly since the custodial staff knew that she was still in her classroom and had the 

opportunity to warn her orally but failed to do so.” The trial court went on to make the 

following findings:

The placement of the signs in the small area on the left side of the hallway 

near the lockers and the entrance door to the other classroom would have 

been adequate to warn of a wet floor or mopping in that small immediate 

area. The Court finds that it was inadequate to warn Ms. Robertson or 

others that the center and right side of the hallway and the area immediately 

outside Ms. Robertson’s classroom were wet or had been mopped and did 

not conform to the requirements set forth in the school system’s policies.

The trial court concluded that the custodians failed to properly implement the “wet floor 

sign policy,” and “the placement of the signs was misleading and did not adequately warn 

Ms. Robertson that the right hand side of the hallway where she fell was wet.” 

Therefore, the trial court found that Appellant was not immune under the GTLA. The 

trial court then held that the custodians were seventy-five percent negligent, but the court 

attributed twenty-five percent of the fault for the accident to Ms. Robertson because she 

was “negligent in failing to see the sign directly in front of her.” The trial court entered a 

final judgment incorporating by reference its Memorandum Opinion and awarding Ms. 
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Robertson a judgment for $180,000.00, after reduction for her percentage of comparative 

fault. Appellant timely appealed. 

ISSUES PRESENTED

Appellant has raised the following issues for review, which we have rephrased as 

follows:

 Whether the trial court committed reversible error in concluding that Appellant’s 

immunity under the Tennessee Governmental Tort Liability Act, Tennessee Code 

Annotated section 29-20-201 had been removed. 

 Whether the evidence supports the trial court’s conclusion that the custodians were 

negligent.

 Whether the evidence preponderates against the trial court’s conclusion that the 

custodians’ negligence exceeded the alleged negligence of Ms. Robertson.

Appellee has raised the following issue for review: 

 Whether the trial court erred in failing to allocate one hundred percent of the fault 

for the accident to Appellant. 

STANDARD OF REVIEW

This is a non-jury case and, as such, is subject to our de novo review upon the 

record of the proceedings below. We presume that the trial court’s findings of fact are 

correct, and we must honor that presumption unless the evidence preponderates to the 

contrary. Tenn. R. App. P. 13; Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 

(Tenn. 1993). There is no presumption as to the correctness of the trial court’s 

conclusions of law. See Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 

1996). As this is a case involving comparative fault, it is important to note that the 

assessment of the parties’ relative fault is one of fact, carrying the aforementioned 

presumption of correctness. Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn. 

1995). Our de novo review is subject to the well-established principle that the trial court, 

having seen and heard the witnesses testify, is in the best position to judge their 

credibility. See Bowman v. Bowman, 836 S.W.2d 563, 567 (Tenn. Ct. App. 1991). Great 

deference must be shown to the trial court’s credibility determinations. Id.
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DISCUSSION 

I.

Our initial inquiry requires us to determine whether the allegedly negligent act or 

omission is an immune act within the purview of the GTLA. Governmental entities are 

immune from suit, except when immunity has been removed by statute. See Tenn. Code 

Ann. § 29-20-201. In cases brought pursuant to the GTLA, “[b]efore proceeding in an 

action against a governmental entity, the threshold issue of waiver of governmental 

immunity must be addressed.” Brown v. Hamilton Cty., 126 S.W.3d 43, 46 (Tenn. Ct. 

App. 2003). Relevant to this case, Tennessee Code Annotated section 29-20-205 

provides, in relevant portion, as follows: 

Immunity from suit of all governmental entities is removed for injury 

proximately caused by a negligent act or omission of any employee within 

the scope of his employment except if the injury arises out of:

(1) The exercise or performance or the failure to exercise or perform 

a discretionary function, whether or not the discretion is abused;

The GTLA does not define the term “discretionary function,” but in Bowers v. City of 

Chattanooga, our Supreme Court adopted the planning-operational test to assist courts in 

analyzing whether the allegedly negligent act or omission was discretionary. Bowers v. 

City of Chattanooga, 826 S.W.2d 427, 430–31 (Tenn. 1992). Under the planningoperational test, courts must distinguish governmental acts that are performed at the 

“planning” level from those performed at the “operational” level:

[D]ecisions that rise to the level of planning or policy-making are 

considered discretionary acts which do not give rise to tort liability, while 

decisions that are merely operational are not considered discretionary acts 

and, therefore, do not give rise to immunity.

Id. at 430. “Essentially, the discretionary function exception prevents the use of tort 

actions to second-guess what are essentially legislative or administrative decisions 

involving social, political, economic, scientific, or professional policies or some mixture 

of these policies.” Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 85 (Tenn. 2001). Factors 

to be considered in determining whether a decision is discretionary include:

(1) whether the course of conduct was determined after consideration or 

debate by an individual or group charged with formulation of plans or 

policies; 

(2) whether the decision resulted from an assessment of priorities by an 

individual or group responsible for formulating plans or policies; and 
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(3) whether the decision is not of the type properly reviewable by courts 

which are typically ill-equipped to investigate and balance numerous 

factors that go into executive or legislative decision making. 

Chase v. City of Memphis, 971 S.W.2d 380, 384 (Tenn. 1998). In Chase v. City of 

Memphis, our Supreme Court explained: 

Affirmative answers to the above questions militate toward a finding that a 

decision was a discretionary function. On the other hand, operational 

decisions may be generally classified as ad hoc decisions made by an 

individual or group not charged with the development of planning or policy 

decisions that stem from a determination based on preexisting laws, 

regulations, policies, or standards. 

Id. A negligent act or omission is operational in nature and not subject to immunity when 

the act or omission occurs: (1) in the absence of a formulated policy guiding the conduct 

or omission; or (2) when the conduct deviates from an established plan or policy. Id. 

The trial court concluded that the custodians failed to reasonably comply with 

Appellant’s written “mopping” policy by placing the wet-floor signs in a misleading way. 

Specifically, the trial court found that the policy was not reasonably and appropriately 

implemented such that a reasonable observer would understand that her side of the 

hallway was also wet. The trial court stated: 

The placement of the signs in the small area on the left side of the hallway 

near the lockers and the entrance door to the other classroom would have 

been adequate to warn of a wet floor or mopping in that small immediate 

area. The Court finds that it was inadequate to warn Ms. Robertson or 

others that the center and right side of the hallway and the area immediately 

outside Ms. Robertson’s classroom were wet or had been mopped and did 

not conform to the requirements set forth in the school system’s policies. 

Therefore, the trial court concluded that immunity was abrogated. 

Appellant avers that the custodians were trained pursuant to Appellant’s written 

policy to put out wet-floor signs when mopping, and the custodians reasonably complied 

with the policy in this case. In support of its argument, Appellant points out that the 

custodians put out two wet-floor signs, and Mr. Butler testified that the custodians 

reasonably followed the policy. 

Having carefully reviewed the record, we agree with the trial court that Appellant 

is not immune from suit because the decision of where to place the wet-floor signs was 

operational in nature. See, e.g., Bowers, 826 S.W.2d at 432 (holding that the decision 
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made by a bus driver concerning where on the street to stop the school bus was an 

operational decision when the bus driver was directed to stop anywhere near a daycare). 

The failure of the custodians to warn Ms. Robertson or place the wet-floor signs in the 

area around where Ms. Robertson fell cannot be characterized as a planning decision 

reflecting a course of conduct by those in charge of formulating the policy. Therefore, 

we hold that the discretionary/planning function exception to the removal of immunity 

does not apply to shield the actions of the custodians in this case. 

II.

Next, we must consider whether the record supports the trial court’s conclusion 

that the custodians acted negligently in causing Ms. Robertson’s fall. Appellant claims 

that the custodians acted reasonably under the circumstances, and their actions did not

constitute negligence. Furthermore, Appellant avers that the trial court erred by 

concluding that Ms. Robertson’s negligence was less than the custodians’ negligence. 

See, e.g., McIntyre v. Balentine, 833 S.W.2d 52, 57 (Tenn. 1992) (“[S]o long as a 

plaintiff’s negligence remains less than the defendant’s negligence the plaintiff may 

recover; in such a case, plaintiff’s damages are to be reduced in proportion to the 

percentage of the total negligence attributable to the plaintiff.”). 

Negligence cannot be presumed by the mere happening of an accident. Brackman 

v. Adrian, 472 S.W.2d 735, 739 (Tenn. Ct. App. 1971). “‘[P]eople fall all the time[,] but 

this does not perforce mean that the fall was due to another’s negligence[.]’” Mooney v. 

Genuine Parts Co., No. W2015-02080-COA-R3-CV, 2016 WL 2859149, at *3 (Tenn. Ct. 

App. Apr. 20, 2016) (citation omitted). “In a premises liability action against a 

governmental entity, the plaintiff must prove that: (1) the governmental entity owns and 

controls the location or instrumentality alleged to have caused the injury; (2) a dangerous, 

defective, or, in the case of sidewalks, unsafe condition caused the injury; (3) the 

governmental entity had actual or constructive notice of the dangerous condition; and (4) 

the governmental entity breached either its duty to eliminate the condition or its duty to 

warn of the condition.” Traylor ex rel. Traylor v. Shelby Cty. Bd. of Educ., No. W2013-

00836-COA-R3-CV, 2014 WL 792131, at *8 (Tenn. Ct. App. Feb. 27, 2014) (citations 

omitted). We have described the duty of care owed to an employee by her employer as 

follows: 

The master owes the duty of ordinary care to prevent injury to the servant 

in the work place, and he is bound to use such care to furnish the servant a 

reasonably safe place and safe appliances for the work. This duty of the 

master is personal, continuous, and non-delegable.

Overstreet v. Norman, 314 S.W.2d 47, 50 (Tenn. Ct. App. 1958) (citations omitted).1

 

1 As was the case in Overstreet v. Norman, the instant action does not fall under the worker’s 
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The first three elements are not in dispute in this case. However, Appellant claims 

that the custodians’ conduct with respect to the placement of the wet-floor signs was 

reasonable under the circumstances and, hence, did not constitute negligence. The 

evidence simply does not support Appellant’s contention. On the surveillance video, Mr. 

Mitchell can be seen placing two wet-floor signs around a relatively small area on the far 

left side of the hallway right in front of a row of lockers. He begins by mopping the area 

in between the signs, but then he mops the entire length of the hallway along the right and 

left sides. However, Mr. Mitchell did not move the wet-floor signs to indicate that a much 

larger area had been mopped. Furthermore, Ms. Willis was watching Mr. Mitchell while 

he mopped the hall, but she was not assisting him because of a recent surgery. Ms. Willis 

testified that she knew Ms. Robertson was in her classroom because she spoke with Ms. 

Robertson in her classroom around the time that the hallway was being mopped. Mr. 

Mitchell also testified that he knew people were still in the building. However, neither 

Ms. Willis nor Mr. Mitchell warned Ms. Robertson that the right hallway directly outside 

her classroom was wet from being mopped.

Moreover, Ms. Robertson testified that she did not see the wet-floor signs before 

she fell, and she fell almost immediately after she stepped into the hall. The following 

exchange occurred when Ms. Robertson was being cross-examined:

Q: [S]o what prevented you from seeing those wet floor signs on that day?

A: I can’t say what prevented me from seeing them. I just don’t remember 

seeing any signs. Like I said, when I came out of my classroom, as soon as 

I turned the corner, I was falling to the floor. If I had seen that first sign in 

front of Ms. Averritt’s door [i.e. the door across the hall], it would have 

indicated to me that that area in front of her door was wet—had a spill or 

something was wet there. 

Q: Okay. 

A: It wouldn’t have indicated to me that where I was walking was wet. 

Q: And so after you proceeded into the hall then and if you had seen the 

second sign, would that have indicted to you then that that area of the floor 

was wet. 

A: The area on that side of the hallway. It would have indicated to me that 

that must be wet on that side of the hallway. 

 

compensation statutory scheme but rather is controlled by general principles of negligence and the GTLA. 

See Overstreet, 314 S.W.2d at 49. 
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The trial court found that Ms. Robertson was a credible witness, and she “was not 

distracted, was walking normally and was otherwise using reasonable care for her own 

safety and making responsible use of her senses” when she entered the hallway. Our 

review of the video that was an exhibit at trial and included in the record on appeal also 

demonstrates that Ms. Robertson fell less than two seconds after exiting her classroom. 

The evidence clearly supports the trial court’s conclusion that the custodians were 

negligent in their placement of the wet-floor signs and in mopping the entire hall without 

warning Ms. Robertson or moving the signs. For the foregoing reasons, we have 

concluded that the evidence in the record supports the trial court’s conclusion that the 

custodians were negligent. 

Next, Appellant argues that even if the custodians were negligent, Ms. Robertson’s 

negligence was equal to or exceeded the custodians’ negligence. Therefore, Appellant 

avers, Ms. Robertson’s recovery is barred under the doctrine of comparative fault. See 

McIntyre, 833 S.W.2d at 53. Conversely, Ms. Robertson avers that the trial court erred in 

attributing any of the fault to her, and she should be awarded additional damages. 

In attributing seventy-five percent of the fault and twenty-five percent of the fault 

to Appellant and Ms. Robertson respectively, the trial court explained its reasoning as 

follows: 

The Court further finds that the school system breached its duty to warn of 

the dangerous condition which it created because the wet floor signs were 

placed in a manner which did not adequately warn Ms. Robertson of the 

danger she confronted. The Court also finds that the Plaintiff was also 

partially at fault in that she failed to notice a sign that was directly across 

from her classroom entrance on the opposite of the hallway. Although, as 

previously stated, the placement of the sign was such that it would lead 

any reasonable observer to think that it was warning of a wet floor 

area across the hallway from where Ms. Robertson was walking, her 

testimony was that she did not see the sign at all. The Plaintiff had a 

duty to use reasonable care for her own safety and the Court finds that 

she was negligent in failing to see the sign directly in front of her. 

(emphasis added). 

We respectfully disagree with the trial court’s decision to attribute twenty-five 

percent of the fault to Ms. Robertson. “The comparative fault analysis must take into 

consideration the total context of the injury-causing incident[.]” Keaton v. Hancock Cty. 

Bd. of Educ., 119 S.W.3d 218, 225 (Tenn. Ct. App. 2003). “One of the factors courts 

must consider in assessing comparative negligence is ‘the reasonableness of the party’s 

conduct in confronting a risk.’” Cannon v. Loudon Cty., 199 S.W.3d 239, 244 (Tenn. Ct. 

App. 2005). “In making this determination, our courts have properly taken into 
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consideration whether, and to what extent, encountering a known risk is avoidable; or, 

stated another way, what reasonable alternatives to encountering a known risk are 

available to a party.” Id. In attributing the percentage of fault assigned to each party, a 

trial court may also consider the extent to which the defendant failed to reasonably utilize 

an existing opportunity to avoid harm to the plaintiff. Eaton v. McClain, 891 S.W.2d 

587, 592 (Tenn. 1994). 

In this case, the trial court found that the placement of the wet-floor signs was 

misleading because “the placement of the sign[s] was such that it would lead any 

reasonable observer to think that it was warning of a wet-floor area across the hallway 

from where Ms. Robertson was walking.” Even though the trial court concluded that the 

positioning of the signs would have misled any “reasonable observer,” the court 

attributed twenty-five percent of the fault to Ms. Robertson for failing to see the sign. It 

seems inconsistent to fault Ms. Robertson for failing to notice the sign on the opposite 

side of the hallway in light of the trial court’s finding that the sign would not have served 

as an adequate warning even if she had seen it. Moreover, we point out again that Ms. 

Robertson fell almost instantaneously upon exiting her classroom, and the trial court 

found explicitly that Ms. Robertson “was not distracted, was walking normally and was 

otherwise using reasonable care for her own safety and making responsible use of her 

senses” when she entered the hallway. There is no proof in the record to support a finding 

by the trial court that Ms. Robertson in any way caused or contributed to her injuries. 

This Court confronted similar facts in Cannon v. Loudon County, 199 S.W.3d 239, 

240 (Tenn. Ct. App. 2005). In Cannon v. Loudon County, the roof of a jail leaked and 

puddles of water accumulated on the floor. Id. The plaintiff got out of bed to use the 

restroom in the night, and he slipped while attempting to traverse the wet floor, which

constituted the only path leading to the restroom. Id. at 243–44. The trial court found 

that each party was fifty percent at fault for the plaintiff’s injuries and dismissed the case. 

Id. at 240. However, on appeal, this Court attributed one hundred percent of the fault to 

the jail personnel for failing to maintain the premises in a reasonably safe manner. Id. at 

245. This Court considered factors such as the inmate’s inability to avoid the water and 

the reasonable need to use the restroom in the night when allocating one hundred percent 

of the fault to the jail. Id. at 245. 

Similarly, in the case before us, Ms. Robertson acted reasonably in walking out of 

her classroom to attend an afternoon meeting with the other teachers. For the foregoing 

reasons, we hold that the evidence preponderates in favor of the conclusion that the 

plaintiff should not be held at fault. “While the trier of fact has considerable latitude in 

allocating percentages of fault, appellate courts have the power to reallocate fault when 

the evidence preponderates against the trial court’s fault-finding.” Id. (citations omitted). 

Accordingly, we reverse the trial court’s finding that Ms. Robertson was twenty-five 

percent at fault for her injuries and hold that Appellant was one hundred percent at fault.
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CONCLUSION

For the foregoing reasons, we affirm the trial court’s conclusion that Appellant is 

not entitled to immunity under the GTLA and that the custodians were negligent. 

However, we reverse the trial court’s decision to allocate twenty-five percent of the fault 

to Ms. Robertson and remand the case for the trial court to enter a judgment for the total 

amount of damages to which the trial court found the Appellant to be entitled and for 

such further proceedings as are necessary and consistent with this Opinion. 

_________________________________

ARNOLD B. GOLDIN, JUDGE