# FILED
January 16, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE WESTERN SECTION AT NASHVILLE
BARBARA

KNIGHT, ) ) Plaintiff/Appellant, ) Sumner Circuit No. 15456-C ) VS. ) Appeal No . 01A01-9705-CV- 00213 ) CITY OF GAL LATIN, SUMN ER ) COUNTY, TENNESSEE, ) ) Defendant/Appellee. )
APPEAL FROM

THE CIRCUI T COURT OF SU MNER COUNTY AT GALLATIN, TENNESSEE THE HONORABLE THOMAS GOODA LL, JUDGE

WILLIAM L. UNDERHILL Madison, Tennessee Attorney for Appellant

GARY K. GROOMS Farris, Warfield & Kanaday, PLC Nashville, Tennessee Attorney for Appellee

AFFIRMED

DAVID R. FA RMER, J.
CONCUR: ALAN E. HIGHERS, J. HEWITT P. TOMLIN, JR. , Sr. J. Barbara Knight sue d the city o f Gallat in (City) after she fell on a city sidewalk. The2

complaint alleges the City was neglig ent in allowing alg ae and slime toaccumulate in an
area where water flow ed across the sidewalk in t he vicinity of a carwash. Summary judgment was granted in favor of City and Ms. Knight appeals.

This action was brought pursuant to the Governmental To rt Liability Act found at T.C.A. § 29-20-101 et. seq. The City’s immunity is removed for i njur y caused b y a defective, unsafe or dangerous condition of a sid ewalk o wned and controlled by the governmental entity. T.C.A. § 29-20-203(a). However, this section does not apply unless the City had actua l or constructive notice of a defect ive, unsafe or dangerous c ondition. T.C.A. § 29-20-203(b). The plaintiff concedes that she is unable to p rove actual notice. Therefore, the crux of this case is whether the City

had constructive notic e.

Sum mary j udgment is appropriate only when there are no genuine issues of material fact. The trial court must take th e strongest legitimate view of the

evidence in favor of

the nonmoving party, allow al l reasona ble inferences in favor of that party, and discard all countervailing

evidence. If

there is such a dispute, the motion must be denied. It is not the province of the court to weigh the evidence. However, once it is shown by the movant that there is no genuine issue of materi al fact, the nonmoving party must then demonstrate, by affidavits or d iscove ry materials, that ther e is a genuine material fact d ispute. The respondentcannot simply rely upon his pleadings but must set forth specific facts by using affidavits or other discovery material. Rule 56.03

T.R.C.P.; Byrd v. Hall , 847 S.W.2d 208 (Tenn. 1993). No presumption of correctness attaches to decision s granting summary judgmentas they involve only que stions of law . On appeal, we must make a fresh determination as to whethe r the r equirements of Rule 56 T.R.C.P.have been met. Cowden v. Sovran B

ank/Central South, 816 S.W.2d 7 41, 744 (Tenn. 1991).

Construc tive notice is “inform ation or knowl edge of a

fact imputed by law to a per son (although he may not actual l y have it), because he could have discovered the fact by proper diligence, and his situation was such as to cast upon him the duty o f inquiring into it.” Blac k’s

Law Dictionary, 1062 (6th ed. 1990); Kirby v. Macon Co unty , 892 S.W.2d 403,3

409 (Tenn. 1994).

The plainti

ff attempts to show that the City had constructive notice by virtue of the fact that, at the time of the accident, the City’s Public Works Department had ap proximately 60 people “out and about on the street s of Gallatin”. However, Ms. Knight herself testified that the area she stepped in just l ooked wet and she could see nothing other than the water.
In response to the City’s motion for summary judgment, Ms. Kni ght presented the affidavit of Mr. Barry Lynn Newberry who states that he regularly trav

els the area in front of the car wash and has observ ed water running

across the sidewalk on a regular basis. He further stated that he noticed a gre en fung us type slime build-up o n the sidewalk “at least three years ago.” M s. Knight fell on June 27, 1995 and Mr. Newberry’s affidavit is dated February 11, 1997. Interestingly, Mr. Newberry’s affidav it also states that, whe n he
o bserved the fungus and slime build-up, it was open and obvious to him. Pla intiff als o presented the aff idavit of Ms. Kayron McGrew w ho stated that she worked i n the vicinity of the fall; had periodically observ ed water flowing ac ross the sidewalk si nce she began working in the are a in July 1992 and had never observed anyone cleaning the sidewalk. This was apparently an atte mpt to rebutthe testimony of the owner of the car wash, Mr. Herman Taylor, that he generally cleaned the sidewalk area once per week. Although this creates a factual dispute, it is not material to the iss ue of whe ther the City had co nstructi ve notice that slime and algae had built up beneath the water.

The plaintiff does not

con tend that the City caused or created the condition. If liability is predicated on construc tive notice, the defective condition must have existed for such length of time that the defendant knew or, in the exercise o

f ordinary care, should

have known, of its existenc e. Jone s v. Zayre, Inc. , 600 S.W.2d 730, 732 (Tenn. App. 1980)

. As a general ru le, constru ctive know ledge cannot

be establis hed without some showing of the length of time the dangerous condition had existed. Self v. Wa l-Mart4

Stores, Inc. , 885 F.2d 336, 338(6th Cir. 1989); Hardesty v. Service Merchandise Co., Inc. , 953 S.W.2d 678 (Te nn. App. 1997). It is not clear from Mr. Newberry’s affidavit whether his observ

ation w as three years prior t

o the fall

or prio r to the date of hi s aff id avit. However, either interpretation w ould be too far removedfrom the condition of the sidewalk that existed when the fall occurred. The plaintiff has simply failed to present any evidence that slime and algae beneath the flow ing water had exi sted for a sufficient lengthof time to put the City on notice. M s. Knight does not contend that the dangerous condition w as the water flowing acr

oss the sidewalk. She of c ourse observed th is condi tion prior to stepping into it and testified that she was aw are that she was stepping into the water but had no cause for concern.

We agree with the trial cour t that summary judgment w as proper and that there was insufficientevidence presented that the C ity had c ons tructive notice of a danger ous or defectiv e condition existing on the sidewalk at the ti me of Ms. Knight’s unfortunat e accident. The judgment of the trial court is affirmed and the costs of this cause are taxed to the ap pellant for which e xecution may issue i f necess ary.

FARMER, J. CONCUR:
HIGHERS, J.
TOMLIN, Sr. J.