FILED

October 16, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

RONNIE POOL and LINDA PARKS, )

Co-Administrators for the Estate of )

NATHAN POOL, and as next of kin )

of Nathan Pool, )

)

Plaintiffs/Appellants, ) Tennessee Claims Commission

) No. 103859

)

VS. )

)

) Appeal No.

STATE OF TENNESSEE, ) 01A01-9802-BC-00104

)

Defendant/Appellee. )

APPEAL FROM THE TENNESSEE CLAIMS COMMISSION

THE HONORABLE W. R. BAKER, COMMISSIONER

For the Plaintiffs/Appellants: For the Defendant/Appellee:

Robert S. Peters John Knox Walkup

SWAFFORD, PETERS & PRIEST Attorney General and Reporter

Winchester, Tennessee

Michael Moore

Solicitor General

Kimberly J. Dean

Deputy Attorney General

AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE
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O P I N I O N

This appeal involves the death of a motorist whose vehicle was swept off a

flooded highway bridge during a torrential rainfall. The administrators of the

motorist’s estate filed a claim with the Tennessee Claims Commission asserting that

state highway officials knew or should have known about the flooded condition on

the bridge and negligently failed either to avert the flooding on the bridge or to warn

motorists of the bridge’s unsafe condition. Following an evidentiary hearing, the

claims commissioner entered judgment for the State because the claimants had failed

to prove that the state employees had sufficient notice of the bridge’s dangerous

condition to enable them to close the bridge to the public. The administrators of the

motorist’s estate assert on this appeal that the evidence does not support the claims

commissioner’s decision. We affirm the claims commissioner’s dismissal of the

claim.

I.

In late December 1990, Franklin County received an unseasonable record

rainfall that led to extensive and widespread flooding throughout the county. On

December 22, 1990, the water in the Woods Reservoir had reached such high levels

that Arnold Engineering Development Center found it necessary to open its dam and

release large quantities of water into the Elk River. The Center notified the Estill

Springs chief of police of its decision but did not notify the Tennessee Department

of Transportation. The release of the water from the Woods Reservoir coupled with

the continuing heavy rain caused the Elk River to begin to flood at approximately

10:00 p.m. on December 22, 1990. 

By the morning of December 23, 1990, the Elk River had risen above its banks

and had flooded a bridge on State Highway 279, approximately five miles east of

Spring Creek Road. When Gary Leech, a local resident, discovered the condition of

the bridge, he placed four orange soccer cones across the highway to warn

approaching drivers that the bridge was impassible due to high water. Mr. Leech did

not contact the Department of Transportation to alert them to the flooding on the

bridge.

During the early afternoon of December 23, 1990, Glenn Fulmer, a

maintenance employee with the Department of Transportation who was working in
1

See Act of May 24, 1984, ch. 972, 1984 Tenn. Pub. Acts 1026, codified at Tenn. Code Ann.

§§ 9-8-301, -405 (1992 & Supp. 1998).

-3-

another part of the county, left Estill Springs to obtain additional road materials. He

noticed the orange cones on the highway as he approached the bridge on Highway

279, and, when he arrived at the bridge, he saw water rushing over the bridge. Mr.

Fulmer decided that crossing the flooded bridge would be too dangerous and turned

back to Estill Springs to report what he had observed to Carl Crownover, his

supervisor. As soon as Mr. Fulmer reported the condition of the bridge, Mr.

Crownover dispatched workers to erect warning signs and barricades at the bridge.

Before the highway workers could return to the bridge, Nathan Pool, a 67-yearold resident of Coffee County, arrived at the bridge and decided to cross it even

though it was flooded. The floodwater swept Mr. Pool’s truck off the bridge, and Mr.

Pool drowned in the Elk River.

Fifteen months later, in March 1992, the administrators of Mr. Pool’s estate

filed a wrongful death claim with the Tennessee Claims Commission. They alleged

that Department of Transportation employees knew or should have known that the

bridge was flooded and that they failed to protect the public from the dangerous

condition. The case was tried before a single claims commissioner on October 30 and

31, 1997. The claims commissioner determined that the Department of

Transportation employees did not receive notice of the bridge’s condition in

sufficient time to enable them to close the bridge to traffic. The administrators of Mr.

Pool’s estate have appealed. 

II.

The State cannot be sued without its consent. See Shell v. State, 893 S.W.2d

416, 420 (Tenn. 1995). However, Tenn. Const. art. I, § 17 empowers the General

Assembly to authorize claims against the State, and the General Assembly exercised

its power in 1984 when it established the Tennessee Claims Commission.1 The

provisions of this Act must be strictly construed because the Act departs from the

common law. See Hill v. Beeler, 199 Tenn. 325, 329, 286 S.W.2d 868, 869 (1956);

Daley v. State, 869 S.W.2d 338, 340 (Tenn. Ct. App. 1993). 
-4-

Tenn. Code Ann. § 9-8-307(a)(1)(J) (Supp. 1998) provides that the Tennessee

Claims Commission has jurisdiction to adjudicate monetary claims against the State

of Tennessee arising out of dangerous conditions on state-owned highways. In order

to prevail under that section, a claimant must establish (1) that the risk was

foreseeable and (2) that the proper state official received notice of the condition

sufficiently prior to the injury to have enabled them to take appropriate measures.

See Sweeney v. State, 768 S.W.2d 253, 254-59 (Tenn. 1989). 

The claims commissioner found that the State could reasonably have foreseen

the risk to life and property as a result of the record rainfall and resulting flooding in

the area. Thus, the pivotal issue is whether the proper state officials had notice of the

dangerous condition of the flooded bridge in enough time to take protective measures

that would have prevented Mr. Pool’s death. This is a factual issue. See James v.

Metropolitan Gov’t, 55 Tenn. App. 622, 628-29, 404 S.W.2d 249, 252 (1966); see

also Fagg v. Franklin County, No. 01A01-9710-CV-00589, 1998 WL 313390, at *2

(Tenn. Ct. App. June 16, 1998) (No Tenn. R. App. P. 11 application filed).

Accordingly, we will review the claims commissioner’s finding that the State did not

have sufficient notice to act using the standard of review in Tenn. R. App. P. 13(d)

and will presume that the finding is correct unless the evidence preponderates against

it. See Sanders v. State, 783 S.W.2d 948, 951 (Tenn. Ct. App. 1989).

III.

The outcome of the pivotal notice question turns on the credibility of the

witnesses. As a general matter, when we review factual findings under Tenn. R. App.

P. 13(d), we will not reverse findings that hinge on the witnesses’ credibility unless

the record contains clear, concrete, and convincing evidence necessarily negating

witness credibility. See Thompson v. Creswell Indus. Supply, Inc., 936 S.W.2d 955,

957 (Tenn. Ct. App. 1996); Haverlah v. Memphis Aviation, Inc., 674 S.W.2d 297, 302

(Tenn. Ct. App. 1984).

The administrators of Mr. Pool’s estate base their assertion that proper state

officials had adequate notice that the bridge had flooded on the testimony of Joe

Owensby, a dispatcher employed by the Franklin County Sheriff, and Dennis Young,

the Chief of Police of Estill Springs. Mr. Owensby testified that he telephoned Don

Penney and Mr. Crownover during the early evening of December 22, 1990, to report
2Because we have concluded that the claims commission properly dismissed this claim

because proper state officials did not have timely notice of the dangerous condition of the bridge,

we need not address the State’s alternative argument that Mr. Pool’s negligence was fifty percent

(50%) or more of the cause of this death.

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the flooding on the bridge. Chief Young testified that he telephoned Mr. Crownover

around noon on December 23, 1990 to request that barricades be placed at the bridge

because Arnold Engineering Development Center was going to release water from

the Woods Reservoir.

Messrs. Penney and Crownover contradicted this testimony. Mr. Penney

testified that he did not recall receiving a telephone call from Mr. Owensby on

December 22, 1990. For his part, Mr. Crownover testified that neither Mr. Owensby

nor Chief Young spoke with him about the Elk River bridge on either December 22

or December 23, 1990. He explained that he could not have been reached by

telephone at the time because he had been in the field and because his only means of

communication was his truck radio.

The claims commissioner who heard this conflicting testimony was required

to decide where the weight of the evidence lay. He concluded that Mr. Owensby’s

testimony, while given in good faith, was confused and was undermined by the

absence of a written entry in his official log of the calls he remembered making to

Messrs. Penney and Crownover. Similarly, he found that Chief Young’s testimony

about contacting Mr. Crownover by telephone on December 23, 1990 was mistaken

because Mr. Crownover was not available by telephone during the times that Chief

Young testified that they discussed the Elk River bridge by telephone. Having

reviewed the record, we fail to find clear and convincing evidence undermining

Messrs. Penney’s and Crownover’s testimony. We also decline to conclude that the

evidence preponderates against the claims commissioner’s conclusions that the State

did not have notice of the Elk River bridge flooding until Mr. Fulmer’s meeting with

Mr. Crownover on the afternoon of December 23, 1990.2

IV.

We affirm the decision of the Tennessee Claims Commission and remand the

case for whatever further proceedings may be required. We also tax the costs of this

appeal to the Administrators of the Estate of Nathan Pool and their surety for which

execution, if necessary, may issue. 
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____________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

___________________________________

BEN H. CANTRELL,

PRESIDING JUDGE, M.S. 

___________________________________

WILLIAM B. CAIN, JUDGE