IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

October 15, 2012 Assigned on Brief

MARTHA McCORMICK

v.

WARREN COUNTY BOARD OF EDUCATION

Appeal from the Circuit Court of Warren County

No. 2437 Buddy D. Perry, Judge

No. M2011-02261-COA-R3-CV - Filed January 15, 2013

This appeal involves a GTLA claim for personal injuries arising out of alleged negligence.

The plaintiff suffered personal injuries after falling in a hole in a school football field. The

plaintiff filed this lawsuit against the defendant board of education alleging negligence by

failure to maintain the school premises and failure to warn. As defenses, the defendant board

of education asserted governmental immunity and comparative fault. After a bench trial, the

trial court held that the board of education had constructive notice of the hole in the football

field and so did not have governmental immunity, and awarded the plaintiff monetary

damages. The board of education now appeals, challenging the trial court’s holding on

governmental immunity and arguing the plaintiff’s comparative fault. We affirm the trial

court’s holding as to governmental immunity, but remand on the issue of comparative fault

for findings of fact and conclusions of law pursuant to Rule 52.01 of the Tennessee Rules

of Civil Procedure.

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

Part and Remanded

HOLLY M. KIRBY, J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J.,

W.S., and J. STEVEN STAFFORD, J., joined.

Ricky L. Stacy, McMinnville, Tennessee, for Defendant/Appellant, Warren County Board

of Education

Sonya W. Henderson, Murfreesboro, Tennessee, for Plaintiff/Appellee, Martha McCormick
OPINION

FACTS AND PROCEEDINGS BELOW

Plaintiff/Appellee Martha McCormick (“McCormick”) was born in Warren County,

Tennessee in 1943 and has lived there her entire life. She has raised six children and several

grandchildren. On May 13, 2005, McCormick attended the ceremony for her

granddaughter’s graduation from Warren County High School, held at Nunley Stadium in

McMinnville, Tennessee. The Stadium adjoined a football field with a track around it, and

the football field stood between the Stadium and the parking lot where the family’s cars were

parked. After the ceremony ended at approximately 7:30 or 8:00 p.m., McCormick, her

daughters, and two grandsons walked across the football field to return to the parking lot.

As McCormick and her family crossed the football field, she walked around a drainage grate

in the field and stepped into a large hole near the grate. In doing so, McCormick fractured

her left ankle. She was immediately taken to the local hospital’s emergency room.

A few dayslater, McCormick visited orthopaedist Donald M. Arms, M.D. (“Dr. Arms”), who

examined her fractured ankle. Dr. Arms gave McCormick pain medication and had her wear

a medical boot for six weeks. By August 2005, McCormick was able to resume her regular

activities.

Several months later, in April 2006, McCormick sustained a second fracture to her left ankle,

in approximately the same place as the first fracture. She returned to Dr. Arms for this

second fracture. He again had her wear a medical boot for another six to eight weeks.

In May 2006, McCormick filed this lawsuit against Defendant/Appellant Warren County

Board of Education (“Board”) in the Circuit Court of Warren County, Tennessee. The lawsuit

alleged negligence for failing to maintain the school football field in a reasonably safe

condition and failing to adequately warn of the dangerous hole in the field. McCormick

sought $100,000 in compensatory damages based on her medical bills, her inconvenience,

permanent loss of enjoyment of life, mental anguish, and pain and suffering. In its answer,

the Board denied any negligence. As affirmative defenses, the Board asserted, inter alia, all

available defenses under the Tennessee Governmental Tort Liability Act (GTLA). Discovery

ensued.

In June 2008, the Board filed a motion for summary judgment. In the motion, the Board

argued that the hole in the football field was covered with grass and thus was a latent

defective condition; consequently, it was immune from liability under the GTLA. In

response, McCormick argued that there were questions of fact regarding the hole and filed

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the deposition of school athletic director Andrew Jacobs in support of her response. In July

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2010, the trial court denied the motion for summary judgment.

In May 2011, the Board filed a motion to amend its answer to assert comparative fault as an

affirmative defense. The Board noted that other walkways were available to McCormick but

she nevertheless chose to walk through an “obvious drainage area.” The Board filed its

amended answer on the day the trial commenced, but for reasons that are not apparent from

the record, the agreed order permitting the amended answer, stating that the Board “shall file

its First Amended Answer following entry of this Order but prior to trial,” was not entered

until August 5, 2011, over a month after the trial took place.

The trial court conducted a bench trial on June 14, 2011. It heard testimony from three

witnesses and also considered the deposition of McCormick’s orthopaedist, Dr. Arms.

At trial, McCormick testified that she had walked across the football field with her

grandchildren many times before the evening in question, and that other people who had

attended the graduation ceremony were walking across the football field as well.

McCormick acknowledged that she could have gotten to the parking lot by walking “all the

way around,” walking on a bank, or around the track; she conceded that some of the other

attendees took such a route, but noted that it was considerably farther than crossing the

football field. McCormick testified that the majority of the attendees walked across the grass

on the football field, as she did.

McCormick explained that, while walking across the football field, she saw the drainage

grate in the grass and walked around it, only to step into the hole near the grate. McCormick

could not recall if she saw the hole before stepping into it: “I really wasn’t looking down,

you know. I don’t think. It’s been so long ago.” When she crossed the football field to get

to the graduation ceremony, McCormick was unaware of the hole in the field, no one

mentioned anything about it to her and she did not notice either the hole or the drainage grate.

Shown photographs of the hole, McCormick testified that it was so deep that when she fell

in, it came almost up to her knee.

At the time of the accident, McCormick was not working outside the home. After the

accident, she testified, she was unable to do anything for herself even inside her home, such

as getting to the bathroom, cooking, and cleaning. For four or five weeks after the accident,

a family member had to be with her “practically all the time.” McCormick said that the

fractured ankle left her in a lot of pain.

As discussed below, this deposition is not contained in the record on appeal.

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Eight weeks after her fall on the football field, McCormick was able to resume her normal

activities, even though her injured ankle remained weak. In April 2006, less than a year after

the accident, McCormick walked off the back steps of her home, set her weak foot down

first, and the same ankle broke again. McCormick was once again placed in a medical boot

for six to eight weeks, and family members had to assist her during this second recovery.

Because of the two incidents, McCormick had a total of about four months in which she

could not perform everyday tasks and required assistance from family. By the time of trial,

McCormick was fully healed, but her injured ankle caused her mild pain from time to time.

She took care to always have her cell phone with her, even going to the mailbox, for fear of

falling again.

The trial court also heard testimony from McCormick’s daughter, Angela McCormick

(“Angela”). Angela had attended three or four other graduation ceremonies at Nunley

Stadium and corroborated McCormick’s testimony that most attendees walk across the

football field to get between the Stadium and the parking lot. She said that the grass around

the hole “wasn’t real tall” but was “just like your yard or something.” Angela testified that

she and other family members took care of McCormick while she recovered from her injury,

adding, “[s]omebody had to be with her.”

Another one of McCormick’s daughters, Nancy Knowles(“Knowles”), testified as well. She

reiterated the testimony by McCormick and Angela that persons attending graduation

ceremonies at Nunley Stadium frequently cross the football field between the Stadium and

the parking lot and said there were no guides directing attendees to use another route.

Knowles confirmed that the hole was in a mowed area of the football field. She saw her

mother fall into the hole. Knowles corroborated the earlier testimony regarding the care

McCormick required from her children while she was recovering from her initial injury.

Even after McCormick recovered, Knowlessaid,she continued to experience occasional pain

and remained unsteady on her feet.

McCormick also submitted into evidence the deposition testimony of Dr. Arms. Dr. Arms

confirmed that McCormick fractured her left ankle in May 2005 by stepping in the hole on

the football field. He prescribed narcotics for her pain and had her wear a boot for several

weeks. He said that her fracture lined up appropriately and was healing. Generally, Dr.

Arms said, patients with this type of injury can be left with intermittent instability and

swelling.

In April 2006, Dr. Arms testified, McCormick returned to his office after she fell at her home

and broke the same ankle a second time. He said that she had rebroken her left ankle in the

same place, stating, “it’s essentially . . . the same old fracture.” This fracture was treated in

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the same manner as the first. He gave McCormick no specific impairment rating, but said

that persons with these injuries often have permanent residual weakness and loss of balance.

Dr. Arms was unwilling to testify to a reasonable degree of medical certainty that the second

fracture was related to the first:

I can’t with any medical probability say that the second injury would or would

not have occurred with or without the first one, meaning I think they are two

separate events caused by two separate traumatic episodes. And the second

ankle fracture was probably just as likely to have happened without the first.

So the odds are 50-50. I can’t say that I’m 51 percent sure that they are

related.

Dr. Arms also confirmed that McCormick’s medical bills in the amount of $3,586.38 were

reasonable, necessary, and customary for treatment of this type of injury. In the future, Dr.

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Arms predicted, McCormick will “intermittently require medication options, [and]

intermittent brace wear . . . . She’ll note increased discomfort with weather change or

overuse,” but would not require surgery.

That concluded McCormick’s evidence. The Board offered no witnesses of its own and

rested its case at the conclusion of the plaintiff’s proof. The trial court instructed counsel for

both parties to submit proposed findings of fact and conclusions of law and took the matter

under advisement.

On September 26, 2011, the trial court entered its order on the trial, setting forth its findings

of fact and conclusions of law. In the order, the trial court rejected the Board’s argument that

it should be immune from liability under the GTLA because the hole in the football field was

concealed by grass and thus was a latent defect:

The board’s counsel[] argue[s] that the hole was concealed by grass, and is,

therefore a latent defect. Consequently, counsel[] insists that the county by

statute is immune from suit. Plaintiff’s counsel argues:

The transcript of Dr. Arms’ deposition indicated that a total of $26,092.50 was reasonable for the total cost

2

of treatment for McCormick’s fractured ankle. It appears that this figure was an error in transcription; other

exhibits in the record indicate that the total amount spent on office visits, braces, and the like for

McCormick’s treatment was actually $2,692.50. Additionally, another $836.04 was spent on emergency

services and $57.84 on crutches for McCormick, for a combined total of $3,586.38 spent on medical

expenses for both ankle injuries.

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Although the Supreme Court does not explicitly state the

relationship between constructive notice and latent defect issues

in GTLA cases, it appears contradictory to hold that a Defendant

had constructive notice, while concurrently ruling that the

condition was a latent defect, or one which could be discovered

by reasonable and customary inspection. Therefore either the

condition could have been discovered by reasonable inspection,

which would warrant constructive notice of a patently defective

condition, or the condition could not have been discovered by a

reasonable inspection, which would imply that the Defendant

had no notice and the condition would qualify as a latent defect.

I agree with the plaintiff’s contention that the hole in which the plaintiff

stepped in should have been discovered by reasonable inspection, due to the

regular use of, and maintenance conducted on the premise [sic] by the

defendant.

Referring to “the photographs attached to the deposition of Andy Jacobs,” the trial court

made a factual finding that “the hole was too wide and too deep not to be seen or noticed in

any way by the Defendant prior to Plaintiff’s fall.” It noted that the Board’s employees and

other agents had maintained the football field where the hole developed and held that the

Board owed a duty of care to maintain the premises in a reasonably safe manner. The trial

court also found that the Board had superior knowledge of the premises and, had it done a

reasonably careful inspection, itshould have discovered the hole in the football field. On this

basis, the trial court held that the Board had constructive notice of the defective or dangerous

condition, namely, the hole. Thus, the trial court held, the Board breached its duty of care

to invitees such as McCormick, by failing to inspect the premises in a reasonably careful

manner.

Based on these findings of fact and conclusions of law, the trial court ordered the Board to

pay McCormick $8,500 in unspecified damages. It also assessed costs against the Board.

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The Board now appeals.

The trial court made no express finding on the Board’s liability for McCormick’s second ankle injury 3

sustained by McCormick or whether the $8,500 judgment included compensation for permanent impairment. 

Neither of these issues have been raised on appeal, so we do not address them. 

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ISSUES ON APPEAL AND STANDARD OF REVIEW

On appeal, the Board raises two issues:

I. Whether the concealed hole in the football field at Nunley Stadium

constitutes a latent defective condition under Tennessee law for which

Appellant Warren County Board of Education retains immunity from suit

pursuant to T.C.A. § 29-20-204(b).

II. Whether the trial court erred in failing to allocate any fault to Appellee

Martha McCormick under the affirmative defense of comparative fault.

Because this matter was decided by the trial court without a jury, the trial court’s findings of

fact are reviewed de novo on the record, with a presumption that those findings are correct

unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). For the evidence to

preponderate against the trial court’s factual finding, it must support another finding of fact

with greater convincing effect. Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 70-71

(Tenn. Ct. App. 2000); Realty Shop v. RR Westminster Holding., 7 S.W.3d 581, 596 (Tenn.

Ct. App. 1999)). The trial court’s conclusions of law are reviewed de novo, with no

presumption of correctness. Nashville Ford Tractor,Inc. v. Great Am.Ins. Co., 194 S.W.3d

415, 424-25 (Tenn. Ct. App. 2005). It is also well settled that a trial court’s assessment of

witness credibility is entitled to great weight on appeal because the trial court saw and heard

the witness testify; thus, we defer to the trial court’s assessment on credibility absent clear

and convincing evidence to the contrary. C&W Asset Acquisition, LLC v. Oggs, 230 S.W.3d

671, 676 (Tenn. Ct. App. 2007).

ANALYSIS

Governmental Immunity

The Board argues first that it is immune from liability under the GTLA. The Board does not

appear to challenge the trial court’s finding that the hole in the football field was a defective

or dangerous condition. It contends that the hole was a latent defective condition, and that

4

the evidence does not support the trial court’s finding that the Board had constructive notice

Likewise, the Board does not dispute the trial court’s findings that the Board is a governmental entity and 4

the football field in question is a public improvement owned by the Board. Tenn. Code Ann. § 29-20-204(a);

see Petty v. City of White House, No. M2008-02453-COA-R3-CV, 2009 WL 2767140, at *5; 2009 Tenn.

App. LEXIS 599, at *12-14 (Tenn. Ct. App. Aug. 31, 2009) (classifying a field owned and maintained by

a city as a “public improvement”). 

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of the hole. For these reasons, the Board maintains that the trial court erred in concluding

that it was not immune from liability under the GTLA.

The GTLA provides that “all governmental entities shall be immune from suit for any injury

which may result from the activities of such governmental entities wherein such

governmental entities are engaged in the exercise and discharge of any of their functions,

governmental or proprietary.” Tenn. Code Ann. § 29-20-201(a) (2008). Governmental

immunity, however, can be removed under certain circumstances. Helton v. Knox County,

Tenn., 922 S.W.2d 877, 881-82 (Tenn. 1996); Petty v. City of White House, No. M2008-

02453-COA-R3-CV, 2009 WL 2767140, at *4; 2009 Tenn. App. LEXIS 599, at *10-11

(Tenn. Ct. App. Aug. 31, 2009). Pertinent to this appeal, under Tennessee Code Annotated

§ 29-20-204, governmental immunity for liability for a dangerous or defective condition may

be removed under the following circumstances:

(a) Immunity from suit of a governmental entity is removed for any injury

caused by the dangerous or defective condition of any public building,

structure, dam, reservoir or other public improvement owned and controlled

by such governmental entity.

(b) Immunity is not removed for latent defective conditions, nor shall this

section apply unless constructive and/or actual notice to the governmental

entity of such condition be alleged and proved . . . .

5

Tenn. Code Ann. § 29-20-204 (2012). Thus, McCormick may recover against the Board if

she is able to prove that the preponderance of evidence establishes that the hole in the

football field was not a latent defective condition, and that the Board had constructive notice

of the dangerous or defective condition. See Wright v. City of Lebanon, No.

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M2010-00207-COA-R3-CV, 2011 WL 721508, at *2; 2011 Tenn. App. LEXIS 99, at *6

(Tenn. Ct. App. Mar. 1, 2011); Barnett v. Gallatin Dept. of Energy, No. 01-A-01-9104-CV000134, 1991 WL 213207, at *2; 1991 Tenn. App. LEXIS 833, at *3 (Tenn. Ct. App. Oct.

23, 1991).

Section 29-20-204(b) refers to the procedural notice requirements in Tennessee Code Annotated § 29-20- 5

302. However, Section 29-20-302 has since been repealed. See 1987 Pub. Acts. c.405, § 7.

There is no evidence in the record that the Board had actual notice of the hole in the football field, so the 6

issue on appeal involves only constructive notice.

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Latent Defective Condition

The Board argues that the evidence preponderates against the trial court’s finding that the

hole in the football field was not a “latent defect” within the meaning of Section 29-20-

204(b). Because the evidence showed that the hole was completely concealed by grass, the

Board argues, reasonable inspection in the course of the regular use and maintenance of the

property would not have led to discovery of it. It cites Waddell v. Greenelawn Memory

Gardens, Inc. in support of its contention that a hole on a piece of land that is “concealed by

vegetation” constitutes a latent defect. See Waddell v. Greenelawn Memory Gardens, Inc.,

No. E2008-02522-COA-R3-CV, 2009 WL 2877290, at *14; 2009 Tenn. App. LEXIS 610,

at *10 (Tenn. Ct. App. Sept. 8, 2009) (reversing grant of summary judgment and finding

disputed issue of fact as to whether obscured hole was latent defect).

A latent defect under Section 29-20-204(b) has been defined as “[a] hidden or concealed

defect . . . which could not be discovered by reasonable and customary inspection” and as

“[a] defect which reasonably careful inspection will not reveal.” Hawks v. City of

Westmoreland, 960 S.W.2d 10, 17 (Tenn. 1997) (quoting Black’s Law Dictionary 794 (5th

ed. 1979) and Vincent v. Salt Lake County, 583 P.2d 105, 107 (Utah 1978)); Wright, 2011

WL 721508, at *8; 2011 Tenn. App. LEXIS 99, at *23. We consider the evidence and the

Board’s argument with this definition in mind.

Although Waddell, cited by the Board, involves a lawsuit in which the plaintiff sued for

personal injuries sustained after falling in a hole on the defendant’s property, we find that it

is not helpful in determining the issue presented by the Board in this appeal. In Waddell,

the trial court granted summary judgment in favor of the defendant landowner, citing the

plaintiff’s statements that he was aware that the unimproved property was unsafe to walk on

and evidence that a sidewalk was available to the plaintiff. After the plaintiff appealed, the

appellate court found that summary judgment in favor of the defendant was inappropriate in

light of evidence that the hole, in a “a solid pile of rocks/cinderblock/debris,” was obscured

by vegetation and that the sidewalk route was not a viable option for the plaintiff under the

circumstances of the case. See Waddell, 2009 WL 2877290, at *1; 2009 Tenn. App. LEXIS

610, at *2-4. Thus, Waddell concluded that the evidence of vegetation obscuring the hole

on the premises created a disputed issue of fact as to whether the plaintiff should have seen

the hole and whether the defendant should have warned the plaintiff of it. In the case at bar,

we are not presented with a ruling on a summary judgment motion but rather with a finding

of fact based on evidence submitted at trial. So the holding in Waddell, that the vegetation

covering the hole created an issue of fact on whether the hole was a latent defect, does not

assist us in assessing the preponderance of the evidence presented at trial in this case.

The Board insists that this Court should hold that the hole in the football field “constitutes

a latent defect as a matter of law for which immunity is not removed,” pointing to the

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undisputed fact that the hole had grass growing in it and around it, and the fact that plaintiff

McCormick did not see the hole while walking through the football field. We decline to hold

that the hole in the football field was, as a matter of law, a latent defect. The evidence at trial

included testimony by McCormick’s daughters that the hole was located in a mowed area and

that the grass around the hole “wasn’t real tall” and was “just like your yard or something.”

The Board put on no evidence contradicting their testimony and it was apparently credited

by the trial court. McCormick’s testimony was inconclusive at best; she testified that she

could not recall whether she could see the hole, and said that she was not looking down at

that time that she fell. Finally, the record includes the photographs of the hole in the football

field that were submitted into evidence, which this Court reviews in the same manner as the

trial court. See Ingram v. Wasson, 379 S.W.3d 227, 237 (Tenn. Ct. App. 2011). After

reviewing the evidence in the record as a whole, we cannot conclude that it preponderates

against the trial court’s holding that the hole in the football field was not a “latent defective

condition” within the meaning of Section 29-20-204(b).

Constructive Notice

The Board also contends that the trial court erred in holding that the Board should have

discovered the defective and dangerous condition on the premises – the hole in the football

field – with reasonably careful inspection, and therefore had constructive notice of it. It

argues vigorously that this holding is not supported by the proof in the record. The Board

maintains that no proof was presented concerning how the field was used in Fall 2004 other

than for football games and the graduation ceremony McCormick attended, and that there

was no proof regarding the last time the property had been used, the maintenance schedule

of the property, or how long the hole had existed. The Board contends that the trial court

could only have held that the hole McCormick stepped in “should have been discovered by

reasonable inspection, due to regular use of [], and maintenance conducted on the premise

by defendant” by assuming facts not in the record. For this reason, the Board contends that

the evidence preponderates against the trial court’s holding that the Board had constructive

notice of the hole, that it failed to maintain and inspect the premises in a reasonably safe

manner, and that it breached its duty of care to invitee McCormick.

In a case such as this, the question of constructive notice of a defective or dangerous

condition is related to the question of whether the condition constitutes a latent defective

condition; the two are essentially flip sides of the same coin. Tennessee cases define

constructive notice as “information or knowledge of a fact imputed by law to a person

(although he may not actually have it), because he could have discovered the fact by proper

diligence, and his situation was such to cast upon him the duty of inquiring into it.” Hawks,

960 S.W.2d at 15 (quoting Kirby v. Macon County, 892 S.W.2d 403, 409 (Tenn. 1994));

Petty, 2009 WL 2767140, at *6; 2009 Tenn. App. LEXIS 599, at *16. “Proof that a

governmental entity failed to adequately inspect property or improvements which it owned

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and controlled is directly relevant to the question of whether it had constructive notice of the

dangerous or defective condition resulting in injury.” Hawks, 960 S.W.2d at 16; Wright,

2011 WL 721508, at *7; 2011 Tenn. App. LEXIS 99, at *19 (“Constructive notice depends

not on when an injury occurs but on when a governmental entity fails to exercise reasonable

diligence.”). As stated above, the issue of whether the Board in this case had constructive

notice of the hole is a question of fact. Petty, 2009 WL 2767140, at *6; 2009 Tenn. App.

LEXIS 599, at *17 (citing Reed v. Greene County, No. E2004-00090-COA-R3-CV, 2005

WL 100843, at *4; 2005 Tenn. App. LEXIS 19, at *13 (Tenn. Ct. App. Jan. 19, 2005)).

At the outset, we note that the deposition of the school’s athletic director, Andrew Jacobs,

was apparently filed in connection with the Board’s pre-trial motion for summary judgment,

but was not included in the appellate record before this Court. The appellate record contains

a “notice of filing” of the deposition and related exhibits and attachments, and it is referred

to in McCormick’s response to the Board’s summary judgment motion. McCormick’s

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response to the Board’s summary judgment motion contains McCormick’s statement of

undisputed facts, including the following:

12. The depressed area around the drain gate was located inside the asphalt

track of Nunnelly Stadium. (Deposition of Andrew Wesley Jacobs, hereinafter

referred to as “Dep. A.J.”, pp. 10-11).

13. All those who performed ground maintenance upon the specific area of the

stadium inside the track were paid employees of the Defendant. (Dep. A.J. pp.

10).

14. The area of the football field inside the track was mowed between one and

three times per week around the time of the accident on May 13, 2005. (Dep.

A.J. pp. 16).

The record does not contain any indication that the Board filed a response asserting that the

material undisputed facts as presented by McCormick, citing Jacobs’ deposition, were either

inaccurate or disputed. See Tenn. R. Civ. P. 56.03. The trial court’s September 2011 order,

with its findings of fact and conclusions of law, refers to the photographs attached to Jacobs’

deposition. The appellate record includes photographs of the subject hole, but it is not clear

whether the photographs in the record are the same photographs that were made exhibits to

Jacobs’ deposition. No issue on appeal is raised as to the trial court’s consideration of

Jacobs’ deposition in making its findings of fact and conclusion of law.

McCormick’s appellate brief contains citations to Jacobs’ deposition and summarizes his testimony, which

7

purportedly explained the maintenance and mowing schedules for the football field and who was responsible

for overseeing the condition of the field. Arguments in the appellate briefs are not evidence, so we decline

to consider the summary of Jacobs’ deposition testimony contained in the appellate briefs. 

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In evaluating whether the trial court’s findings are supported by a preponderance of the

evidence, it is incumbent upon this Court to consider all of the evidence that was available

to the trial court. Even if Jacobs’ deposition was not transmitted to this Court as part of the

appellate record, it is apparent that it was made available to the trial court, as well as the

material undisputed facts asserted by McCormick, taken from Jacobs’ deposition testimony

and not disputed by the Board. Consequently, in evaluating whether the trial court’s findings

are supported by a preponderance of the evidence, we consider the entirety of the evidence

available to the trial court.

Considering the testimony of the witnesses, the photographs in the appellate record, and the

entirety of the evidence available to the trial court, we cannot find that the evidence

preponderates against the trial court’s findings that the Board’s employees and agents

maintained the football field, that they had superior knowledge of the premises and a duty

to invitees such as McCormick to inspect and maintain the premises in a reasonably safe

manner, and that the subject hole was of a width and depth that the Board or its agents should

have discovered it before McCormick’s fall. Considering the record as a whole, we cannot

conclude that the trial court erred in holding that the Board had constructive notice of the

dangerous condition and thus was not immune from liability under the GTLA.

Comparative Fault

In the alternative, the Board notes that it asserted comparative fault as an affirmative defense

and contends that the trial court erred in failing to allocate any fault to McCormick. The

Board observes that McCormick admitted that she was not looking down when she fell into

the hole in the football field and argues that this was negligence that should have been taken

into account in the trial court’s decision. The Board also notes the undisputed evidence that

there were other safer walkways available to McCormick, but she nevertheless chose to walk

“in an obvious drainage area without paying attention to where she was walking.” This, the

Board argues, constitutes fault by McCormick that should have been a factor in the trial

court’s decision.

The apportionment of fault in a negligence case is a question of fact. Hocker v. State, No.

E2008-02638-COA-R3-CV, 2009 WL 3518164, at *6; 2009 Tenn. App. LEXIS 735, at *6

(Tenn. Ct. App. Oct. 30, 2009); Wilson v. Pickens, 196 S.W.3d 138, 143 (Tenn. Ct. App.

2005). In this appeal, we are asked to review the trial court’s allocation of fault. While the

trial court made explicit findings of fact and conclusions of law on numerous other issues

presented in the case, it made no express findings on comparative fault. The Board raised

the affirmative defense of comparative fault in an amendment to its answer; the amended

answer was filed the day the trial began, and an agreed order allowing the amendment was

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entered. The trial included testimony pertinent to the issue of comparative fault, such as

8

McCormick’s admission in her testimony that there were other walkways available to her and

that she was not looking at the ground at the time she fell into the hole in the football field.

Despite this, no express findings were made on whether McCormick had some degree of

fault for her injuries.

Moreover, the trial court simply awarded McCormick damages in the amount of $8500, with

no explanation as to how it arrived at this amount. The damages awarded are more than

McCormick’s medical expenses but less than the amount of damages McCormick sought

against the Board. There is no indication as to whether the trial court’s award reflects an

implicit finding of comparative fault against McCormick.

In a bench trial, the Tennessee Rules of Civil Procedure require trial courts to issue findings

of fact and conclusions of law. Rule 52.01 of the Tennessee Rules of Civil Procedure

provides:

In all actions tried upon the facts without a jury, the court shall find the facts

specially and shall state separately its conclusions of law and direct the entry

of the appropriate judgment. The findings of a master, to the extent that the

court adopts them, shall be considered as the findings of the court. If an

opinion or memorandum of decision is filed, it will be sufficient if the findings

of fact and conclusions of law appear therein. . . .

Tenn. R. Civ. P. 52.01 (2012). The legislature’s decision to require findings of fact and

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conclusions of law is “not a mere technicality.” Paul v. Watson, No.

W2011-00687-COA-R3-CV, 2012 WL 344705, at *5; 2012 Tenn. App. LEXIS 65, at *14-15

On appeal, McCormick argues that the appellate court should not consider the issue of comparative fault

8

because she was not specifically identified in the pleading that asserts comparative fault, as required under

Rule 8.03 of the Tennessee Rules of Civil Procedure; the Board’s answerincorrectly referred to the allegedly

negligent actions of the Defendant rather than of the Plaintiff. McCormick also argues that she was not given

either the time or the opportunity to rebut the allegations that she was at fault, because the amended answer

was submitted on the day of trial. We note that the order granting the Board permission to file an amended

answer that asserted comparative fault, entered after the conclusion of the trial, was an “agreed order” signed

by McCormick’s counsel. McCormick does not dispute that her attorney consented to the amended answer,

so we consider these issues raised by McCormick to be waived.

Prior to July 1, 2009, trial courts were required to make specific findings of fact and conclusions of law only

9

“upon request made by any party prior to the entry of judgment.” See Poole v. Union Planters Bank N.A.,

337 S.W.3d 771, 791 (Tenn. Ct. App. 2010) (noting the amendment). As amended, Rule 52.01 requires the

trial court to make these findings, even if neither party requests them. Id.

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(Tenn. Ct. App. Feb. 2, 2012) (citing In re K.H., No. W2008-01144-COA-R3-PT, 2009 WL

1362314, at *8; 2009 Tenn. App. LEXIS 225, at *20-23 (Tenn. Ct. App. May 15, 2009)).

It serves the important purpose of “facilitat[ing] appellate review and promot[ing] the just

and speedy resolution of appeals.” Id. (citing White v. Moody, 171 S.W.3d 187, 191 (Tenn.

Ct. App. 2004); Bruce v. Bruce, 801 S.W.2d 102, 104 (Tenn. Ct. App. 1990)). “Withoutsuch

findings and conclusions, this court is left to wonder on what basis the court reached its

ultimate decision.” Paul, 2012 WL 344705, at *5; 2012 Tenn. App. LEXIS 65, at *14-15;

In re K.H., 2009 WL 1362314, at *8 ; 2009 Tenn. App. LEXIS 225, at *20-23 (quoting In

re M.E.W., No. M2003-01739-COA-R3-PT, 2004 WL 865840, at *19, 2004 Tenn. App.

LEXIS 250, at *58 (Tenn. Ct. App. April 21, 2004)).

In the absence of findings of fact and conclusions of law on the Board’s defense of

comparative fault, we are unable to effectively review the trial court’s allocation of fault.

Under these circumstances, we are left with little choice but to remand the case for findings

of fact and conclusions of law pursuant to Rule 52.01 of the Tennessee Rules of Civil

Procedure on the issue of comparative fault.

CONCLUSION

The decision of the trial court is affirmed in part and remanded for further proceedings

consistent with this opinion. Costs on appeal are assessed against Defendant/Appellant

Warren County Board of Education and its surety, for which execution may issue if

necessary.

 ___________________________

HOLLY M. KIRBY, JUDGE

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