# FILED
May 29, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE

DONNA S. OGILVIE ) ) Plaintiff/Appellant, ) ) Appeal No. ) 01-A-01-9709-CV-00466 VS. ) ) Davidson Circuit ) No. 95C-1673 METROPOLITAN GOVERNMENT OF ) NASHVILLE AND DAVIDSON ) COUNTY, TENNESSEE, ) ) Defendant/Appellee. )
APPEALED FROM THE CIRC UIT COURT OF DAVIDSON C

OUNTY AT NASHVILLE, TENNESSEE THE HONORABLE THOMAS W. BROTHERS, JUDG E
JOEL H. MOSELEY MOSELEY & MOSELEY Suite 300, One Church Street 101 Church Street Nashville, Tennessee 37201- 1609 Attorney for Plaintiff/Appellant JAMES L. MURPHY Director of Law Department of Law of the Metropoli tan Government of Nashville and Davidson County PHILIP D. BALTZ Metropolitan Attorney 222 Third Avenue North, Suit e 501 Nashville, Tennessee 37201 Attorney for Defendant/Appellee

AFFIRMED AND REMAN DED

BEN H. CANTRELL, JUDGE CONCUR: TODD, P.J., M.S. BUSSART, W., S.J. 

## O P I N I O N1 Governmental immunity is r emoved for certai n other tor ts b y other sect ions of the Act. See Tenn. Code Ann. § 29-20-2 02, 204, and 205. - 2 -

The plaintiff sued the Metropolitan Go vernment of Nashville an d Davidson County , alleg ing tha t the dan gerous

and unsa

fe condition of a city

sidewalk caused her to fall and sustain personal injuries. After a bench trial, theCircuit Court of Davidson County found that the sidewalk was not defective, unsafe, or dangerous and that the pl aintiff was more than fifty percent at fau lt. We affirm.

I.

On June 26, 1994, the plaintiff, in the company of her husb and and son, walked alon g the side wa lk on the south side of Uni on Street in Nashvill e. At some point between Fifth and Sixth Av enues, she stumbled over a “lip” a little over one

inch high in the sidewalk. The li p resulted from the failure to build or maintain the sidewalk flush with the top of

a co ncrete underground chamber, the surface of which formed part of the sidewalk. Ms. Ogilvie fell and sustained painful personal injuries.

II.

Because this is an action against the local government, the Tennessee Governmental Tort Liability Act applies to the claim. After providing (or reiterating) a general rule of immun ity, Tenn. Code Ann. § 29-20-201(a), the Act removes the immunity of alocal government for injuries “caused by a defective, unsafe, or dangerouscondition of any street, alley, sidew

alk or highway,owned or controlled by such governmental entity . Tenn. Code Ann. § 29-20-203(a). 1 Subsection (b) requires
as a precondition to liabil ity that thegovernmen tal entity have notic e, actual or constructive, of the dangerous condition. The City does not deny tha t it had notice of the condition or that the sidewalk was under its ownership and control.- 3 - The real question, then, is whether the sidewal k was defective, unsafe,
ordangerous. The trial judge held that i t was neither, and rely ing in part on tha

t conclusion, he dismissed the claim. The question of what conditi on of a sidewalk will make it defective, dangerous, or unsafe has troubled the courts for many

years. Our books contain numerouscases dealing with sidewalk irregularities from great to small. In City of Memphis v.

McCrady

, 124 S.W.2d 248 (Tenn. 1938) the court hel d that a two and one-half inch “lip” at an expansion joint in the sidewalk, over which the plai ntiff tripped in broad daylight, w ould not subject th e city to liabilit y. In Batts v. City of Nashville , 123 S.W.2d 1099 (Tenn. App. 1939) the court survey ed a number

of cases that dealt with defects of vari ous sizes and shapes in s idew alks or stree ts. The defects ranged

from a tw

o and thr

ee-eig hths inc

h differe nce betw

een sections of a sidewalk, McCormick v. C ity of Racine , 277 N.W. 646 (1938), to a three inch deep hole in a sidewalk, Getzoff v. City of New York , 64 N.Y.S. 636 (1900), and in each
case the cou rt he ld as a matter of law that the condition did not render the ar ea defective or dangerous.

In fairness, we should point out that the T enness ee cases all say that liability does not depend on how high the ir regularit y is. No brigh t line can be drawn
on the size and depth of holes in the sidewalk beyond w hich the city woul d be liable. The court in Batts

summed u p the rule in this way: It would be impossib le to derive a ru le from th e numerous cases b

y whic h to fix the lin e of d emarca tion between actionab le size and depth of holesin streets and sidewalks and nonactionable size and depth. The cases all come back to the question of whether or not it could be reasonably anticipa ted, by a reasonably prudent person, that a traveler on the sidew alk or highway un expect edly encountering the obstruction or hole, would suf fer inju ry, or as some of the cases

express it, would probablysuffer injury. 123 S.W.2d at 1104.

In City of Memphis v. McC

rady , 124 S.W.2d 248, 249 (Tenn. 1938) the court put it this way:- 4 - The municipality cannot be held as an insurer, nor can it be charged with th e duty to correct slight defects in sidewalks resulting from inequality in the expansion joints, produced by natural causes, w here the ineq ualit y or unevenness does not make a dangerous obstr uction calculated to produce injury to persons exercising reas onable care. And so, where the evidence is con flictin g or the facts such as to authori ze different inferences as to whethe r the d efect is a dangerous obst ruction calculated to cause injur y, the case must be submitted to the jury, but, wh ere the defect or obstruction is such that reasonable men woul d not differ in th e conclusion th at t he obstruction or defect was not dangerousto travel in the ordi nary modes by persons exercising due car

e, a verdict should be di rected.

The co urts have consistently held that whether a particular site is defective, unsafe, or da ngerous, thereby removing governmental immunity, is a question of fact. Coln v. City of Savannah, ____ S.W. ____ (Te nn. 1998); Helton v. Knox County , 922 S.W.2d 877 (Tenn. 1996). And the factual deter mination involves the analysis specified i n Batts above.

The trial jud ge found that the sidewalk w here the plaintiff fell was not defective, unsafe, or dangerous. That finding comes to this court with a presumption of correctness. Rule 13( d), Tenn. R. Civ. Proc . W e cannot find that the evidence preponderates against it.

III.

In what may or may not be a t rend, the mo re recent cases have assumed that more minor deviations in the surface of the sidewalk are danger ous and have focused on how

comparative fault princi ples affect the duties of the respecti ve2 The deviati on in elev ation fr om the brickpave rs to th e side walk in Coln v. Cit y of Savannah

was three-ei ghths of an inch when the brick pavers w ere installed. By the ti me of the acciden t, however, the deviation was several inches greater. - 5 - parties. See Coln

v. City of Savannah , ____ S.W. ____ (Te nn. 1998); 2 Broyles v. City of Knoxville , No. 03A0 1-9505- CV-0016 6 (filed at Knoxv ille, Aug. 30, 1995). So, an argumentcould be made that the older cases w e have cited have been null ified by the adoption of comparative fault . T he Supreme Court decision in Coln v. City of Savannah

based its decision en tirely on an analysis of the city ’s duty (to do something) to protect pedestrians who might encounter a deviation of several inches in the sidewalk. One coul d as sume t hat the courts should go thr ough the duty analysis in each case, and if a duty is found, the premises are automatically dangerou s for the purpose of removi ng the city’ s immuni ty.

Even if we did that analysis in this case, however, the plaintiff would still have to overcome the

trial court’s additi onal finding that the plaintiff’s own negligence
was more than fifty percent of the cause of he r inj uries. See McIntyre v. Balentine , 833 S.W.2d 52 (Tenn. 1992). That finding is also presumed to be correct under Rule 13(d), Tenn. R. Civ. Proc.

The factors to be considered in assessing the fault of each part y are set out in Eaton v. McLain , 891 S.W.2d 5 87 (Tenn. 1994). They include but are not limited to (1) the relative c lo seness of the causal relationship

between the conduct of the defendant and the injury to the plai ntiff; (2) the reasonableness of the party’s conduct in confronting a risk, such as whether the party knew of the risk, or would hav

e known of it; (3) the extent to which the defenda nt fai led to reasonably utilize an existi ng opportunity to avo id the injury to the pl aintiff; (4) the existence of a su dden emergenc y requiring a hasty decision;(5) the significance of what the par ty was attempti ng to accomplish by the conduct , such as to save another’s life; and (6) the party’s part icu lar capacities, such as age, maturity, training,education, and so forth. 891 S.W.2d at 592.

When we consider these factors in light of the conditions under which the plaintiff fell -- in broad daylight (although overcast), a Sunday afternoon when the sidewalk was not crowded and th e plaintiff’s attention was no t distracted, the fact that the defect was open and obvious -- we cannot find that the evidence preponder ates against the trial judge’s findi ng. We arrive at this conclusion despite the proofthat the hazard could have been easi ly remedied.

The judgment of the court below is affirmed and the cause i s remanded to the Circuit Court of Davidson County for any further

proceedings that might become necessary. Tax the cos ts on appeal to the appellant.

____________________________ BEN H. CANTRELL, JUDGE CONCUR:

__________________________________ HENRY F. TODD, PRESI DING JUDGE MIDDLE SECTION

__________________________________ WALTER W. BUSSART, SPECIAL JUDGE