1 Da vid R. Alford, IV, fi led this l awsuit on behalf of his daughter, who was then sti ll a minor. However, for ease of refer ence , we will refe r to Lind say E. A lford a s “the pla intiff.”

2 The O ak Ridge City Schools operates Oak Ridge High Schoo l. For thi s reason, we wil l treat the defendant as if it were O ak R idge H igh Sc hoo l.



### IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE July 2, 2003 Session LINDSAY E. ALFORD, ET AL 

### . v. THE OAK RIDGE CITY SCHOOLS Appeal from the Circuit Court for Anderson County No. AOLA-0554 James B. Scott, Jr., Judge

FILED AUGUST 28, 2003 No. E2002-03133-COA-R3-CV
Lindsay E. Alford(“the plaintiff”) and her father, D avid R. Alford, IV 1 , sued The Oak Ridg e City Schools (“the high school”) under the Gover nmental Tort Liability

Act (“GTLA”)for

in juries sustained by the plaintiff when she slipped on a hallway

floor at Oak Ridge High School, where she was a student . At the co nclusion o f the pla in ti ff’s proof, the trial court granted the high school’s 2 mo tio n for an involuntary dismissal, finding that, while the plaintiff had proven the existence of wat er on the floor, she had failed to prove that the high school knew or should have known about the wate r. From t his ruling , the plaintiff app eals. We a ffirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed; Case Remanded C HARLES D. S USANO , J R ., J., delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and H ERSCHEL P. F RANKS , J., joined. Jerry Shattuck, Clinton, Tenness ee, for the appe llants, Lindsay

E. Alford and David R. Alford, IV

. John C. Duffy, Kno xvil le, Tennessee, and James M. Webster, Oak Ridge, Tennessee, for the appelle e, The Oa

k Ridge Ci

ty Sc hools. OPINION-2- I. On December 23, 1999, the plaintiff, who was then a senior at the high school, underwent k nee surgery . Following the surgery , she needed crutches to ambulate. The plaintiff re turned t o school on January 3, 2000, which was the first day of school f

ollowing the holiday bre ak. When the plaintiff arrived at the high school, she went to the off ice to obtain a key to the elevators that were accessible only to handicapped

students. Because the high school is constructed on multiple

levels, the plaintiff would require the use of the elevators to g et to her third class in order to avoid a lo ng stair

way . After a

ttending her firs ttwo m ornin g classes, the plaintiff used one elevator, crutched down a hallway , and took the second elevator. The elevator doors ope nedonto a hallway that, like the elev ators, wa s rese

rved on ly for handica

pped students. At the end of the hallway wa s a door that opened onto a main hallway

. After exiting the elevator, the plainti ff testified that she “crutched two or three times” a nd then her “left crutch slipped out from under [her].” The plaintiff fell, causing her surgical incision to open. When the plaintiff got up, she stated that she noticed blood on the floor from her knee and also noticed that she had fallen in wa te r. Th e p la in ti ff

wa s a bl e t o c ru tc h t o t he en d o f t he ha ll wa y, open the door, and call for help. As a result of her fa ll and the reopening of her incision, the plaintiff had to undergo two more surger ies on her knee. The plaintiff

and her f ather f iled suit a gainst the high school, claiming that the high school “was neglig ent in

the operation and maintenance” of the school and that the high school either knew or should have known of the dangerous condition, i.e. , the existe nce of w ater in

the hallway. The high school answered the complaint, deny ing any knowledge of the water in the hallway and contending that it was immune from suit pursuant to the GTLA, Tenn. Code Ann. § 29-20-101, et seq. (2000 & Supp. 2002). A bench trial was held on November 13, 2002. The plaintiff

testified that the water which she claimed caused her fall was not a puddle, but rathe r a film of water across the floor tiles. She stated that she did notsee the water before she fell and that she did not know how long the water had be en on the flo or. The plaintiff also testified that she was unaware of a nyone else f

alling in the subject area. Several employees of the

high school testified at the behest of the p laintiff, including the head custodian, the assistant principal, and the vice-principal of student affairs. The head custodian, who has been employe d at the high school for twenty -five ye ars and has served in his present capacity

for seventeenyea rs , s ta te d t ha t h e a nd hi s s ta ff cl ea n u p a ny w ater or

mo isture assoon as the

y see it. He testifie d that he had not been in the hallway at issue on the morning of January 3, 2000. He further testified that the high school had not had any problems with water or moisture in the hallway during his tenure, and he wa s not awa re of an y ot her stude nts or staf f member s falling

in th e h al lw ay. Both the assistant

principal and the vice-principal for student affa irs testified that they

had not been in the hallway on the morning in question. The supervisor of operation and ma intenance for The-3-

Oak Ridge Cit

y Schools also

testi fied, stati ng t hat he was familiar with the hallway in which the plaintiff fell, andthat, after

reviewing all work requests since 1999, there were no reports of water pr ob le ms in th at ha ll wa y. At the conclusion of the plain tiff’ s proo f, the high school moved for an involuntary dismissal pursuant to Tenn. R. Civ. P. 41.02. The trial court found that the plaintiff had carried her burde n of proof with respect to the existence of the water on the hallway floor. However, as to the issue of notice, the trial court found that the pl ai nt if f d id no t p ro ve by a preponderance of the evidence that the high school knew o

r should have known of the existence of the danger ous condition in the hallway. The tr

ial court then ruled in favor of the high school and dismissed the plaintiff’s claim. II. In the case o f Atkins v. Kirkpatrick , we addr essed the procedu res by which a tr

ial cour t is to deter mine whet

her to g rant a Rul e 41.02 mo tion for in voluntar y di smissal: If a mot ion to dismiss is made at the close of Plaintiffs’ proof in a non-jury case, under

[Tenn. R. Civ. P.] 41.02(2) , the tria l court mus t impartia lly weigh a nd eva luate the ev idenc e just as tho ugh it w ere making findings of fact and conc lusions of law after presentation of all the evidence. If t he pl ai nt if f’ s c as e h as no t b ee n e st ab li sh ed by a preponderance

of the evidence, the case

should be dismissed if, on the facts found in

[sic] the appli cable la

w, plainti ff has shown no rig ht to relief. City of Columbia v. C.F.W. Constr. Co. , 557 S.W.2d 734 (Tenn. 1977). Atkins v. Kirkpatrick , 823 S.W.2d 547, 552 (Tenn. Ct. App. 1991); see also Smith v. Inman Realty Co. , 846 S.W.2d 819, 822 (Ten n. Ct. App. 1992); Derrybe rry v. Hill , 745 S.W.2d 287, 290 (Tenn. Ct. App.1987). Our standard of review of

a trial court’s decision to grant an involuntary dismissal u

nder Rule 41.02 is in accordance with Tenn. R. App. P. 13(d). Atk ins , 823 S .W. 2d at 552; Irvin v. City of Clarksville , 767 S.W.2d 649, 653 (Tenn. Ct. App.19 88); Derrybe rry , 745 S.W.2d at 290. Thus, we are required to review the record de novo and to presume that the factual findings of the trial cour t are correct, unless the evidence preponde r ate s otherwi se. Tenn . R. App. P. 1 3(d); Atkins , 823 S.W.2d at 55 2; Irvin , 767 S.W.2d a t 653; Derrybe

rry , 745 S.W.2d at 290. III. The issue in this case causes us to focus on the following provisions of the GTL A:-4- Tenn. Code Ann. § 29-20-201 (2000) (a) Except as may

be other

wise p rovided in this cha

pter, all governmentalentities s hall be immune from suit for any injury which may result from the activities of such governmental entities wherein such governmental entities are engaged i n the e xerci se and disch arge of an y of th ei r f un ct io ns , g ov er nm en ta l o r p ro pr ie ta ry.

* * * (c) When immunity is removed by this chapter any

claim for damages must be brought in strict compliance with the terms of this chapter.

Tenn. Code Ann. § 29-20-204 (2000) (a) Immunity from suit of a g overnmental entity is removed for any injury caused by the dangerous or defective condition of any p ublic building, . . . 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 . . . .

Tenn. Code Ann. § 29-20-205 (2000) Immun ity from suit of all governmental entities is removed for injury proximatel

y ca us ed by a negli gent act or omission of any employee within the scope of his employ

ment except if the injury arises out of : * * * (4) a failure to

make an i

nspectio n, or by re ason of m ak ing an inadequa te or negl igent insp ection of any prope rty ; (Emphasis added). IV. The GTLA provides general immunity

to all go vernmen

tal entitie s, removing that immunity only in limited a

nd specif ied instan ces. Kirby v. Macon County , 892 S.W.2d 403, 406 (Tenn. 1994). The facts o f the instant ca se implica te Tenn. Code Ann. § 29-20-2 04(a), w hich rem oves a governmentalentity’s immunity from suit “for any

injury caused by

the dangerous or def

ect ive condition of any public building, . . . owned and controlled by such governmental entity .” The trial-5-

co urt found that the plaintiff proved the existence of water on the hallway floor, i.e. , a dan gerou s condition andthe high school does not challenge this finding. The refore, the only

issue that we mu st decide is whether the trial court was correct in deter mining that t he pla inti ff fail ed to p rove t he high school had the requisite notice of the dangerous c ondition. Genera lly speaking, a property

owner or operator is subject to l iabilit y for a da ngerous or defectivecondition

on its pre

mises if the conditi on (1) wa s c re ated by the owne

r/opera tor or its agent, or (2) was created by someone other than the principal or its agent, and the pr incipal had actual or constructive notice that the condition existed prior to the accident. H ard esty v. Serv. Merch. Co. , 953 S.W.2d 678, 682 (Ten n. Ct. App. 1997); Martin v. Wa shmaster Auto Ctr

., U.S.A. , 946 S.W.2d 314, 318 (Tenn. Ct. App. 1996). In the instant case, there is absolutely no evidence that the h igh scho ol was dir

ectly responsi ble for cre ating the water -on-the -floor c ondition th at caused the plain tiff to fa ll. Furthermore, the plaintiff concedes that she c annot prove that

the high school had actual notice of the dangerous condition. Therefore , we need only focus on the issue of constructive notice. Constructive notice has been defined as “information or knowledg e of a fact imputed by law to a person

(althoug h he [or she ] may

not actua lly h ave it), because

he [or she ] could

have discovered the fact by pr

oper diligence, and

his [or her

] situation w as such a s to cast u pon him [or her] the

duty of inquiring into it.” Kirby , 892 S .W.2 d at 40 9. “Co nstru ctive knowl edge can be shown by proving the dangerous or defective c ondition existed for such a length of time that the defend ant, in the exercise of reasonable care, should have become aware of such condition.” Martin , 946 S.W.2d at 318. In Lindgren v. City of Johnson City , 88 S.W.3d 58 1 (Tenn. Ct. App. 20 02), this c ourt held that the city had constructive notice of a defective sewer c over where the cover showed

evidence of neglect over a long period of time. Id. at 584-85. In the instant case, there is absolutely

no evidence as to how long the water had been on the hallway

floor. The high school employees who testified at trial all stated that

they had not bee

n in the hallway on the morning the plaintiff was injured, which was the first day of c lasses after the holiday

break. Moreover, the head custodian and the supervisor of maintenan ce for the school system both testified that they were unaware of any

reports of or problemswith water

or mo is tu re in th e h al lw ay. Accord ingly , the evid

ence do es not pre

pondera te agains tthe trial court’s finding that the plaintiff failed to prove constructive notice. See McCorkle v. County of Dyer , C/A No. 02A01-9701-CV-00020, 1998 WL 155437 (Tenn. Ct. App. W.S., filed April6, 1998) (holding that plaintiff, who was injured after tripping on torn carpet, fa iled to prove constructive notice, as there was insufficient evidence a s to how long the tears had been in the carpet). The plaintiff

argues that the high school “should have a duty to conduct

a routine inspection of hallway floors to discove r a dangerous and defective condition that compounds foreseeability of personal injury to phy sically handicapped students required to use that hallway .” An inspection, the-6-

plaintiff argues, would have

revealed this dang erous co ndition, a nd such a duty to inspec t gives r

ise to constructive notice. The plaintiff’s reliance on such an arg ument is misplaced. Tenn. Code Ann. § 29-20-205(4) specific ally

states tha t gover nmental im

munity is not removed when the claimed neglige nce is based upon a failure to inspect . Liability in the ins tant case c annot be predicated on a failure to inspect because , under th

e GTL A, a gov ernment

al entity is immune f

rom such s uits. In the absence of proof of a dang erous condition created by the high school or proof of actual or constructive notice of a dangerous condition create d by another, the hig h school is immune from suit and the trial c ourt was c orrect in dismissin g the pla

intiff’ssuit. V. The judgment of the trial court is affirmed. This case

is remand

ed for the collection of co sts assessedbelow, pursuant to applicable law. Costs on appeal are taxed to the appellants, L indsay E. Alford and David R. Alford, IV

.

_______________________________ CHARLES D. SUSANO, JR., JUDGE