# FILED

October 16, 1998 Cecil W. Crowson Appellate Court Cle rk 

## IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

RONNIE POOL and LINDA P ARKS, ) Co-Administrator

s for the Estate of ) NATHAN POOL, and as next of kin ) of Nathan Pool, ) ) Plaintiffs/Appell

ants, ) 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 & PRIE ST Attorney General and Reporter Winchester, Tennessee Michael Moore Solicitor General Kimberly J. Dean Deputy Attorney General



## AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE-2- 

## O P I N I O N

This appeal involves the de ath of a motorist wh

ose vehicle was sw

ept o ff a flooded highway bridge during a torrential rain

fall. The

ad ministrators of the motorist’s estate filed a cla im with the

Tennessee Claims Commission asserting that state highway officials knew or sho uld have known about the flooded condi tion on the bridge and negligently failed either to avert the flooding on the bridge or to warn motorists of the bridge’s unsaf e condit ion. Following an evident iary hearing, the claims commissioner enter ed judgment for the S tate because the claimants had failed to prove that the state

employees had suffi

cient notice of the b

ridge’s d anger ous condition to enable them to close

the bridge to

the public. The ad

ministrators of the motorist’s estate a

ssert on this appeal that the evidence does not support the claims commissioner’s decisio n . We affirm the claims commissioner ’s dismissal of the claim.

I.

In late December 1 990, Franklin County r eceiv ed an u nseasonable record rainfall that led to extensive and widespread flood ing throughout the county. On December

22, 1990, the water in the Woods Reservoir had reached suchhigh levels thatArnold Engineerin

g Development Cente

r found it necessary

to open its dam and release large quantities of water into the Elk River.The Center notifi ed the Estill Springs chief of police of i ts deci sion but did not notify the T ennessee Departm

ent of Transportation. The release of t he water from the

Woods Reservoir

coupled with the continui ng heavy r ain caused the Elk R iver to begin to flood a

t approximately 10:00 p.m. on December 2 2, 1990.
By the morning of Dece

mber 23, 1990, the E

lk River had risen a

bove its banks and had flooded a bridge o n Stat e Highway 279, appr oximately five mile s east of Spring Creek Road. When Gary Leec h, a local residen

t, discovered the condit

ion of the bridge, he placed f our orange

soccer con es across the highway to warn approaching

drivers that the

bridge was impassible due to high water. Mr. Leech did not c ontact the Depart

ment of Transporta

tion to alert them to t

he flooding on the bridge. During the early afterno on of December 23,

1990, Glenn

Fulmer, a maintenance employ

ee with the

Department of T

ransportation who w

as working in1 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- anotherpart of the county, left Estill Springs to obtain addit

ional road materia

ls. He noticed the ora nge con es 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 crossin

g the flooded bridge

would be too dangerous and turned back to Estill Springs to r

eport what he had observed to Carl Crownover, his supervisor. As soon as Mr. F ulm er 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

C offee 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 administra tors of Mr. Pool’s estate filed awrongful death cla im with the

Tennessee Claims Commission. They alleged thatDepartment of Tr ansp ortation employees kn ew or should have know

n that the bridge was flooded and t hat t hey failed to protec t the public from the

dangerous condition. The case was tried before a single claims commi ssioner on October 3 0 and 31, 1997. The claims commissioner determined that the Dep artment of Transportation

employees did no

t 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 ap pealed.

II.

The State cannot be sue d without its cons ent. See Shell v. State , 893 S.W.2d 416, 420 (Tenn. 1995). However, Tenn. Co n st. art. I, § 17 empowers the General Assembly

to authorize claim

s against the State,

and the General Assembly exercised its power in 1984 when it established the Te

nnessee Claims Comm

ission. 1 The provisions of this Act must be strictly construed because the A ct 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 (Ten n. 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 clai ms against the

State of Tennessee arisin

g out of dangerous conditions on state-owned highways. In order to prevail under that secti on, a claimant must establish (1) that the risk was fores eeable a nd (2) that the proper state official re

ceived notice of the

condition sufficiently

prior to the injury to h

ave en abled them to take ap propriate measures. See Sweeney v. State , 768 S.W.2d 253, 254-5 9 (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 rainfa

ll and resulting floodi

ng in the area. Thus, the

pivotal issue is wheth

er the proper state

officials had notic

e of the dangerous condition of the flooded bridge in enough time to take protective measures th at would have prevented Mr. Pool’s d eath. This is a factual is sue. See James v. Metropoli ta n Gov’t , 55 Tenn. App. 622, 628-29, 404 S.W .2d 249, 252 (1966); see also Fagg v. Franklin C

ounty , No. 01A01-9710-CV-0058 9, 1998 WL 313390, a t *2 (Tenn. Ct. App. June 16, 1998) (No Tenn. R. App. P. 11 application filed). Accordingly, we will

review the claim

s commissioner’s fi

nding that the State di

d not have sufficient notice t o act using the stan dard of review in Tenn. R

. App. P. 13(d) and will presume that

the finding is correct unless the evidence preponder

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

III.

The outcome of t he pivotal notice question turns on the credibili

ty of the witnesses. As a general matter, when we review factual findings under Tenn.R. App. P. 13(d), we will no

treverse findings tha

t hinge on the witnesses’ credibility unless the record contains cle

ar, concrete, and convincing evidenc e necessarily nega

ting 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 thei r assertion that pro per state officials had adequate

notice th at the bridge had floo ded on the testimony of Joe Owensby, a dispatcher employed by the Franklin County Sheriff, and De nnis Young, the Chief of Police of Estil

l Springs. Mr. O

wensby testified tha

t he telephoned Don Penney and Mr. Crownover during the early evening of December 22, 1990, to report2 Because we have conclud

ed that the claims c

ommission properly d

ismissed this claim because proper state officials did not have timely notice of the dangerous condition of the bri dge , we need not address the State’s alternative argument that Mr. Pool’s negligence was fifty percen t (50%) or more of the cause of this death. -5- the flooding on the bridge. Chief Young testified that he telephoned Mr. Crownover around noon on December

23, 1990 to request tha

t barricades be

placed at the bridge because Arnold Engineering Deve lopment Center wa

s going to release water from the Woods Reservoir.

Messrs. Penney and Crownover c ontradicted this testimony. M r. Pen ney testified that he did not recal l receiving a tele

phone call from Mr. O

wensby on December

22, 1990. For his part, Mr. Crownover testified that neither Mr. Owensby
nor Chief Young spoke with him about the Elk Riverbridgeon either Decembe r 22
or December 2 3 , 1990. He explain ed that he could not have been reached by telephone at thetime because he had been in the field and

because his only means of communication was h

is truck radio.

The claims commissioner who heard this confl

icting testimony was required to decide where the we i ght of the evidence lay. He concluded that Mr. Owensby’s testimony, while given in good fa ith, was confused a

nd was unde

rmined by t

he absence of

a written entry in his

official log of the calls he remember ed making to Messrs. Penney and

Crownover. Similarly, he found that Chief Young’s testimony about contactingMr. Crownover by telephone

on December 23, 1990 was mistaken because Mr. Crownover was not available by telephone during the times that Chief Young testif

ied that they discussed the El k River bridge by tele

phone. Having reviewedthe record, we fail to find clear and convincing

eviden ce undermining Messrs. Penney’s and Crow nover’s testimony. We also decline to c onclude that the evidence preponderates aga inst theclaims commissioner’s conc lusions that the State did not have notice of the Elk River bridge

flooding until Mr. Fu

lmer’s meeting w

ith Mr. Crownover on

the afternoon of D

ecember 23, 1990. 2

IV.

We affirm the

decision of the

Tennessee Claims

Commission and rema

nd the
case for whatever furthe

r proceedings

may be required. We also tax the cost s of this appeal to the Administrator s of the Estate of

Nathan Pool and their surety for which execution, if necess ary, may issue.-6- ____________________________ WILLIAM C. KOCH, JR., JUDGE

CONCUR:

__________________________________ _ BEN H. CANTRELL, PRESIDING JUDGE, M.S.

__________________________________ _ WILLIAM B. CAIN, JUDGE