### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE January 3, 2001 S ession JANICE SADLER, d/b/a XANADU VIDEO v. STATE OF TENNESSEE Appeal from the Tennessee Claims Commission

No. 303688

No. M2000-01103-COA-R3-CV - Filed March 13, 2001

The owner of a busines s filed a claim in the Tennessee Claims Commission for the loss of the business cause d by a co nstruction project that temporarily hindered ingress and egr ess to the claimant’s location. The Clai ms Commissioner awarded the claimant the value of her business after finding that the State had negligently prolonged the construction project and had created a temporary nuisance. We reverse. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Claims Commission Reversed and Dismissed
B EN H. C ANTRELL , P.J., M.S., delivered the opinion of the court, in which W ILLI AM C. K OCH , J R
. and W ILLI

AM B. C AIN , joined. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General and Michael J. Fahey, II, Assistant Attorney General, for the appellee, State of Tennessee. H. Tom Kittrell, Jr. and Eddie R. Davidson, Nashville, Tennessee, for the appellee, Janice Sadler.

OPINION
I. The claimant purchased a video rental busine ss in 199 0 for $58,000.00 a nd moved it to Bellevue on the south side of Highway 70, just one lot west of the Old Hickory Boulevard intersection. In 1991, the State Department of Transportatio

n contracted with

a private compan

y to improve the intersection between Highway 70 and Old Hickory Boulevard, as well as approxima tely three miles of O ld H ickory Boulevard, running north of the intersection. The proje ct included changes to approximately 300 feet of Highway 70 running

westward from Old Hickory Boulevard past the claimant’s video store. So, for a three month period in 1991 the work on the street made it-2-

more difficult for automobile traffic to enter and exit the claimant’s property. The claimant’s bus ine ss d ecl ine d dr ama tic all y. In January of 1994, the claimant filed a pleading with the Division of Claims

Administration alleging that

because of the State’s negligence, inefficiency , and improper planning the claimant was forced out of business in 1992. The total demand amounted to $152,395.80. TheDivision of Claims Administration transferred the cause to the Claims Commission pursuant to Tenn. Code Ann. § 9-8- 402(c). Aft er the State joined issue on the negligence claim and raised the one y ear statute of limitations for a “taking” in inverse condemnation, the claimant amended her claim to allege that the Statehad created a temporary nuisance for the three months the construction was underway. After a hearing the

Claims Commissioner f

ound (1) that the Sta

te was neglige

nt in failing to

implement any system of traffic control around the barriers placed in the street and in

allowing the con

dition to exist for an unreason

able length

of time, and(2) that the State had created a temporary nuisance tha t interfered with the claimant’s use and enjoyment of her property . The Commissioner awarded the claimant a judgment for $275,000.00.
II. G ENERAL R ULES OF L IABILITY The Tennessee Cl

ai ms Commission has the p ower to order the

State to compensat

e claimants for a host of causes. See Tenn. Code Ann. § 9-8-3 07. Pertin ent to thi s action are the follow ing: (B) Nuisances created or maintained;

. . . (I) Negligence

in planning and programming for, inspection of , design of, preparationof plans for, approval of plans for, and con s truction of, public roads, streets, highwa

ys, or bridges and s

imilar structures , and negligen ce in maintenance of highways, and bridges and similar

structures, designated by the department of

transportation as being on the state system of highway s or the state sy

stem of interstate

highways. Tenn. Code Ann. § 9-8-307(a)(1)(B) and (a)(1)(I ). The Act also provides that liability in tort shall be based on the traditional tort concepts of duty and a reasonably prudent person’s standard of car e, Tenn. Code Ann. § 9-8-30 7(c). And the Statemay assert

any and all a

vailable defenses to the claim, Tenn. Code Ann. § 9-8-403(f). In our opinion, the statutory

scheme makes the

State liable

for the ordinary negligence of its employ ees but it also preserves the defenses that are unique to the State, in addition to traditional defenses an ind ivi dua l wo uld enj oy. One defense unique to the State is the one that arises from the proper exercise of

its police powers. As our Supreme Court said in City of Memphis v. Hood , 345 S.W.2d 887 (Tenn. 1961), “No one has a vested right

to be protected against consequential injuries arising from a p roper exercise-3-

of public powers.” 345 S.W.2d at 888 (quoting from Cooley’s Constitu tional Li mitation s). In Hood , the taking of part of a restaurant property a

nd the change in

the flow of traffic in the adjacent street had caused the restaurant to close. But the Supreme Court said:

Of course, the proper ty owners fronting upon a public thoroughfare have a right to free and convenient access thereto. This right of ingress and egress attaches to the land. It is a property right, as comp lete as ownership of the land itself. But when we come to damages claimed by reason of the c hange of the flow of traffic, making a street a

four-lane highway or

diverting the tr

affic one way

or the other, this comes from the exercise of the police power of the governing parties and such da mages as r esult to one are non-compensable, as they are an incidental rig ht resulting from a

lawful act. 345 S.W.2d at 889. We have consistently followed this reasoning in our subsequent cases. I n Ambrose

v. City of Knoxville , 728 S.W.2d 338 (Tenn. Ct. A pp. 1987), the land

owner complaine

d that his ingress

and egress had been impaired by

converting the adjacent

street from a two

-way stree t to a one-way

street. This court, however, held that the injury was non-compensable because a contrar y result wou ld “completely

obstruct the building of roads and highways by the public authorities.” 728 S.W.2d at 340.
In Hayes v. City of Maryville , 747 S.W.2d 346 (Tenn.

Ct. App. 1987), the p

laintiff’s acce

ss to his property had been impaired by the c onstruction of a concrete

median between the north and south-bound lanes of traffic, cutting off the ability to turn into the plaintiff’s property fromthe southbound lanes. Holding that the city’s lawful activities on its own property did notamount to ataking of the defendant’s property (despite the altered acc ess) the c ourt sa

id, “In essence the plaintiff’s claim is based on the lawful division of traffic. Consequently, there has not been an illegal taking of the plaintiff’s right of ingress and egress to his property.” 747 S.W.2d at 349 (quoting from Ambrose v. City of Kn

oxville ). The court also said:
Acco rdi ngly, the majority rule is that any damage s which result from the governing autho rities’ valid exer cise of thei r police pow er in const ructing or al tering median strips which results in a change or diversion of traffic flow is non-compensable. 747 S.W.2d at 348.
If the permanent al

teration of traf

fic patterns making

access to private propert

y more diff

icult is non-compensable, we fail to see how the plaintiff in this case can recover for the temporary inconvenience c

aused by the

construction proj ect.-4- III. T HE N UISANCE C LAIM “A nuisance has been defined as anything which annoy s or disturbs the free use of one’ s pro pert y, or which renders its ordinary use or phy sical occupation uncomfortable.” Pate v. City of Martin , 614 S.W.2d 46 at 47 (Tenn. 1981). A private nuisance is created where a landowner uses his property

in such a manner as

to unreasonably

interfere with p

laintiff’s use

or enjoymen

t of his own pro pert y. Metropolitan Government of Nashville & Davidson County v. Counts , 541 S.W.2d 133, 138 (Tenn. 1976). In contrast, a public nuisance is the interference

with the public’s use and enjoyment

of a public place

or with other commo

n rightsof the public. Id. The key element of any nuisance is the reasonableness of the defendant’sconduct under the circumstances. See 58 Am. Jur. 2d Nuisances § 76. Having held that

the State has the r

ight in the exerci

se of its public powers to

permanently alter traffic patterns, City of Memphis v. Hood , 345 S.W.2d 887 (Tenn. 1961), we think it would be completely

contradictory

to hold that the State’s activity in this case was unreasonable. The plaintiff argues that the barriers in the street could have been placed in better locations or that two eastbound lanes should have been converted to one eastbound lane and one turn lane, but those decisions are best left to the discre tion of th e public officia ls. There is no evid

ence that they

abused their discretion in this case.
IV. N EGLIGENCE The commiss ioner found that th e State’s neglig

ence unreasona

bly prolong

ed th e constructio

n on Highway 7

0. In his order, the commis sioner only r eferred to the State’s failure to implement any s ystem of traffic control around the barriers placed adjacent to the entrance to the c l aimant’ s pro pert y. In his oral fi ndings fro m the bench, the c ommissioner refe

rred to the State’ s failure to discover the depth of a telephone conduit at the intersect ion of Highway 70 and Old Hickory Boul evar d. H e al so r epea ted the refe renc e to tra ffi c con tro l an d th e un reas ona ble del ay. A common-law neg

ligence claim mu

st contain the following five elements: (1) a duty of care owedby the defe

ndant tothe plaintiff, (2) conduct by the defendant breaching that duty, (3) an injury or loss to the plaintiff, (4) causation in fact, and (5) proximate or legal cause. Waste Manage ment, Inc. v. South Centr

al Bell , 15 S.W.3d 425 (Tenn. Ct. App. 1997). The violation of a duty must be a “necessary antecedent” to an injury to be considered a cause in fact of the injury. Id. at 432.
Two events involving buried telephone lines were implica

ted in this case. The first involved a debate among state engineers about whether a telephone line conduit had to be moved as a part of the project. But that dispute had been resolved ten months before the construction began on the street adjacent to the claimant’s property. Therefore, that dispute and the delay it

caused was not the cause in fact of any

lost time when the work west of theOld Hickory intersection was

in progress.-5-

T he second event involving a telephone line occurred when in the course of t he work th e contractor

broke a water main and a telephone cable. The cable turned out to be a dead line, a nd the record does not show how t he State could have prevented what happened or what effect it had on the project. Therefore, there is no evidence of a breach of duty with r

espect to the telephone line

s, nor is there evidence that whatever happened with the telephone lines was the cause in fac tof any delay in the construction on Highway 70. Assuming that the St ate had a duty to see that the pro

ject was complete

d in the shortest possible time, there is no evidence in the record that allowing the contractor to spend three months in completing the work on Highway 70 breached that duty . The State project

administrator testified that the three month period was what had been expected for that portion of the work. That evidence is not contradicted

anywhere

in the record. Th

erefore, the e

vidence prepond

erates agains

t a finding that the interference with the claimant’s ingress and egress was unrea sonably prolonged.
T he fina l basis for the comm issioner’s finding

of negligenc

e was the State’s f

ailure to addres s the flow of traffic

through the construction area. In particular the commissioner criticized the State’s decision to keep two open eastbound lanes rathe r than one open lane and a le ft turn lane at Old Hi ckory Bo ulevard. But, there is no proof that a left turn lane would have solved the problem of traffic congestion on Highway 70. There is no proof that anything in particular would have reduced the congestion. Therefore, we c annot find how the St ate breached a

duty to the cl

aimant in its management of the traffic around the construction site. The judgment of the Claims Commission is reversed, and the claim is dismissed. Tax the costs on appeal to t

he claimant.

_________________________________________ BEN H. CANTREL

L, PRESIDI

NG JUDGE, M.S.